There’s a lot of commentary on the proposed Marriage Amendment Bill proposed by Senator Dean Smith, and it seems few commentators have had a chance to read it.

So as a service to discussion, Eternity is publishing it. This does not indicate any opinion on the bill itself.

Here is the official summary:

2017

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

MARRIAGE AMENDMENT (DEFINITION AND RELIGIOUS FREEDOMS) BILL 2017

EXPLANATORY MEMORANDUM
MARRIAGE AMENDMENT (DEFINITION AND RELIGIOUS FREEDOMS) BILL 2017

GENERAL OUTLINE

1. This Bill amends the Marriage Act 1961 (Cth) to remove the restrictions that limit marriage in Australia to the union of a man and a woman. The Bill will allow two people the freedom to marry in Australia, regardless of their sex or gender. The Bill also recognises foreign same-sex marriages in Australia. The requirements for a legally valid marriage otherwise remain the same under the Marriage Act.

2. Throughout this Explanatory Memorandum, reference is made to ‘same-sex marriage’. The term ‘same-sex marriage’ should be read to include a marriage of two people regardless of their sex or gender, where the union is not that of a man and a woman.

3. Under paragraph 51(xxi) of the Constitution of Australia, the Commonwealth has the power to make laws relating to marriage. The High Court of Australia confirmed that this power includes the power to make laws relating to same-sex marriage in
The Commonwealth v Australian Capital Territory [2013] HCA 55.

4. In summary, the Bill includes amendments to:

a. redefine marriage as ‘a union of 2 people, to the exclusion of all others, voluntarily entered into for life’

b. confirm that the requirements for a legally valid marriage otherwise remain the same under the Marriage Act, by introducing non-gendered language to ensure these requirements continue to apply equally to all marriages. It will continue to be the case that a marriage will be void if any of the following situations apply:

• one or both parties are already legally married,
• the parties are in a ‘prohibited relationship’. A prohibited relationship includes a relationship between siblings, and a parent-child relationship (including an adoptive parent-child relationship),
• one or both parties did not provide real consent, or
• one or both parties are not of marriageable age, which is generally 18 years of age or older,

c. enable same-sex marriages that have been, or will be, solemnised under the law of a foreign country, to be recognised in Australia,

d. identifying religious marriage celebrants on the register of marriage celebrants as a new category including:

• ministers of religions from religious denominations that are not recognised under the Marriage Act (e.g. independent religious organisations), and

• existing marriage celebrants wanting to perform marriages consistent with their religious beliefs,

e. establish a new category of officers to solemnise marriages of members of the Australian Defence Force overseas, and protect religious freedoms in relation to marriage:

f. protect religious freedoms in relation to marriage:

• ministers of religion will be able to refuse to solemnise a marriage in conformity with their religion’s doctrine, their religious beliefs or in order to avoid injury to the susceptibilities of their religious community (e.g. marriages of same-sex, previously divorced or inter-faith couples),
• a new category of religious marriage celebrants will be able to refuse to solemnise a marriage where their religious beliefs do not allow them to do so,
• bodies established for religious purposes will be able to refuse to provide facilities, goods or services consistently with their religion’s doctrine or if this refusal conforms with religious doctrine, tenets or beliefs or is necessary to avoid injury to the feelings of their religious communities. This is consistent with existing religious exemptions in section 37 of the Sex Discrimination Act 1984 (Cth).

5. The Bill amends the Sex Discrimination Act to give full effect to the religious exemptions contained in the Bill by extending the exemption from Divisions 1 and 2 of Part II of the Sex Discrimination Act for people whose conduct is in direct compliance with the Marriage Act, to also capture conduct authorised by the Marriage Act. The exemptions specifically reference the protections in the Bill for ministers of religion, religious marriage celebrants, Defence Force chaplains and bodies established for religious purposes providing goods or services, or hiring facilities.

6. Parts 3 and 4 of Schedule 1 of the Bill provides for amendments to the Marriage Act allowing for the commencement of the Bill’s amendments either before or after the commencement of the Civil Law and Justice Legislation Amendment Bill 2017, which also proposes to amend the Marriage Act.

7. Part 5 of Schedule 1 of the Bill provides the application provisions necessary to support the commencement of these amendments and transitional provisions for foreign marriages not recognised in Australia prior to these amendments to be recognised.

The full Bill can be read in its entirety here.

Commentary

A comment by Professor Neil Foster of the University of Newcastle who regards the Bill as unsatisfactory, because it fails to protect religious freedom sufficiently, includes this comment

“Religious freedom protections have been a significant part of the argument in relation to this proposed change. Many religious groups have clear doctrines which provide that an essential feature of marriage is that it be between a man and a woman, and that homosexual activity is contrary to divine purposes for humanity. That is certainly the mainstream position of the Christian church, and has been since the founding of Christianity. There are a number of religious freedom issues presented for religious groups and individual believers by proposals to fundamentally transform a social institution in which religious beliefs have played a key part for millennia. As I indicated in a submission I made to a Parliamentary Committee considering the religious freedom protections provided by an Exposure Draft released by the Government, some of these issues are:

• whether religious celebrants will be required to solemnise same sex marriages;
• whether other celebrants, not formally associated with a religious group, will be so required;
• whether religious groups will be required to host same sex weddings on their premises;
• whether public servants who are employed in registry offices will be allowed to exercise their religious freedom to decline to solemnise such marriages;
• whether small business owners in the “wedding industries” (such as cake makers, florists, photographers, stationary designers, and wedding organisers) will be permitted to decline to use their artistic talents for the celebration of a relationship that God tells them is not in accordance with his purposes for humanity.”

Relying on press reports of the Bill, Foster adds: “To take the claim of prior consensus, as I pointed out in my previous poston the Report of the Senate Committee, that Report, despite references to it in press reports at the time, did not go anyway near achieving consensus. It agreed on the minimalist views that there should be “appropriate” protection of religious freedom, and that this at least means that ministers of religion should not be required to conduct same-sex weddings. But there was no agreement in the Committee on almost every other issue!”

Full comments here

An alternative view – that this is the best deal that conservative Christians are likely to get was posted by Kylie Beach (and quoted here with permission)

“I’m aware that some conservative Christian leaders are urging others to call and voice their objections to a same sex marriage vote by MPs. I hope everyone who is considering doing so is actually aware of what is (and isn’t) being proposed. Ie. In the legislation that’s being proposed, there’s specific provisions to protect pastors from being forced to conduct a same sex marriage ceremony and even to protect business owners who have a business connection to a denomination.

“Strategically, I really don’t think conservative Christians are going to end up with a better option than this and it doesn’t make sense for them to fight against it. Right now you’ve got liberal party members in a position where they are trying to overcome the concerns conservatives have raised about this legislation. So this proposed legislation is as conservative as its going to get. If conservative Christians keep fighting to hold it back, they may well lose a lot of the provisions that they want most.

“That said, I’m not sure what grounds a Christian would have to object to it on, unless they really believe that governments should enforce minority beliefs on those who don’t share those beliefs. Surely we can all see that that’s a risky precedent to set.”