Paul R. Nolan

Submission number: 
120
Date of submission: 
4th January 2018

Dear Panel,
You will be receiving, quite correctly, submissions suggesting legislative improvement(s) to better protect freedom of religion "in the broad". This submission concerns itself solely with protecting ministers of religion (MOR's) and churches from any legal action arising from recent amendments to the Commonwealth Marriage Act. I hope you will accept a more narrowly-focused submission as still fitting the terms of reference.

One way of protecting religious freedom is to ensure that MOR's (and Defence Force chaplains serving overseas) and/or the churches they represent, are not placed in a situation of defending in court any discrimination charges arising from the 8/12/2017 amendments to the Marriage Act 1961. (The Marriage Amendment (Definition & Religious Freedoms) Bill 2017).

The amended Act continues (in place since 1961) and expands the ability of MOR's to decline to solemnise any marriage. No other class of celebrant is granted this authority. In the past the authority has been used sparingly, most often to decline marriage to divorcees or inter-denominational couples. Now it can also be used to decline marriage to multi-gendered couples.

Citizens expect laws to be administered in full, without fear or favour, and in a non-discriminatory way. The expectations are heightened when the administrators are seen as acting on behalf of the Commonwealth.

As the 8/12/17 amendments continue to enable MOR's to marry couples in the civil (or civic) sense, their unique authority to choose one gender pairing from the many envisaged by the amended definition of parties ("2 people"), and their ability to decline marriage to other pairings, shows them as not administering the law in its entirety, as favouring a sub-set of couples eligible to marry, and as practicing discrimination based on sexual orientation. No wordsmithing - S.47 (3) of the 8/12/17 amendments - can change the perception that MOR's have been authorised to game a public law in order to accommodate their privately-held beliefs or those of their communities, and to uphold the private tenets of their particular religion.

Litigants are certain to challenge the permitted inconsistency of application by differing celebrant classes which results in discrimination against multi-gendered couples on sexual orientation grounds and the denial to them of church weddings and full marriage equality.

Parliament's attempt to keep MOR's involved in civil marriage by reserving for them an ability to selectively interpret "2 people" is a litigation-prone change which fails to recognise today's reality that multi-gendered eligibility spells the end of church involvement in civil marriage. The Marriage Act as it stands now can only be an interim measure.

Thus my submission is ; To permanently protect the religious freedom of MOR's and/or their churches, parliament should change the Act to remove them as authorised celebrants.

My reasons are ; Since 1961 the Commonwealth and the religious denominations recognised under the Act have shared a consensus that marriage is the union of a man and a woman. Hence a combination of civil and sacramental solemnisations in one church service was legislated for. That was seen as plainly utilitarian in purpose and outcome despite it mixing the functions of church and state, something normally avoided. In 2004 the Act was amended to codify the consensus. However, the 8/12/17 amendment re-defining marriage as the union of 2 people disqualifies MOR's from solemnising civil marriages because of their inability to marry all variants of 2 people.

I am advised that a reason for parliament not legislating to remove MOR's as authorised celebrants was because to do so would prohibit them from freely exercising their religion, contrary to S.116 of the Constitution. However, another part of S.116 forbids the Commonwealth from imposing a religious observance, which the 8/12/17 amendments visit upon multi-gendered couples. It would be unfortunate if taxpayer and litigant monies were spent in asking the High Court to rank elements of S.116, when a cost free solution is available.

Removing MOR's as a class of authorised celebrant does not stop them from celebrating sacramental marriages, as privately-ordained clergy not Commonwealth-authorised administrators, in accordance with the tenets and practices of their church. (To be considered legally married, couples would need an additional civil ceremony). If a practice is to marry opposite-sex couples only, MOR's are protected from discrimination charges by S.37 (1) (d) of the Sex Discrimination Act 1984 (as it was on 7/12/17).

Napoleon Bonaparte stood civil marriage alone in French law 200 years ago. In 2013 same-sex marriage fitted seamlessly into that architecture. There have been no reports of litigation or prosecutions arising from the 2013 change. In my opinion, we should not discount the correlation between the sole provision of secular marriage in French law and the lack of court cases there, as opposed to in many other countries, after same-sex marriage was introduced.

2. An alternative to removing MOR's from the Act and which would also protect their religious freedom and/or that of the churches they represent, was the suggestion by Prime Minister Turnbull on the television program Sunday Agenda on 3/12/17 when he said "We could make this very simple, we could just simply say if you are authorised to celebrate a marriage, you are not obliged to celebrate any particular marriage that you chose not to". (Presumably it would be unnecessary to give reason(s) for declining) "and you know, there are plenty of marriage celebrants - no-one's ever going to have difficulty finding someone to celebrate their marriage."

That suggestion, putting all celebrants on an equal footing, would allow MOR's to remain in the Act and continue combining civil and sacramental solemnisations because all celebrants would have the authority to decline marriage; thus saying "no" would not be for MOR's alone or for religious reasons alone.

S.37 of the Sex Discrimination Act would need amending and a new paragraph (3) to add in the other classes of celebrant. This alternative may be easier for parliament to pass than removing MOR's from the Marriage Act. Unfortunately the suggestion was taken no further than the television broadcast.

I ask the panel to please accept this submission.

Yours faithfully,

Paul R. Nolan