tag:theconversation.com,2011:/uk/topics/marriage-act-9744/articlesMarriage Act – The Conversation2017-11-15T00:58:47Ztag:theconversation.com,2011:article/858282017-11-15T00:58:47Z2017-11-15T00:58:47ZThe marriage equality survey is won, but the battle against discrimination continues<p>The polls are in and Australians have signalled their strong support for same-sex marriage. The only stumbling block to marriage legislation passing into law is disagreement about what <a href="https://www.theguardian.com/australia-news/2017/oct/31/coalition-conservatives-working-on-alternative-marriage-bill">extensions</a> to protections of religious freedom are needed. </p>
<p>It is becoming increasing clear, however, that the “protections” conservatives are arguing for are not protections of religious belief or practice. Rather, they want to significantly extend the capacity of religious organisations and individuals to discriminate against others on the basis of sex.</p>
<h2>Religious freedom is not under threat</h2>
<p>Freedom of thought, belief and practice (religious or not) is a human right. It is <a href="https://www.humanrights.gov.au/freedom-thought-conscience-and-religion-or-belief">recognised in Australia</a> and enforced through legislation at state and federal levels. </p>
<p>But no conceivable marriage equality legislation in Australia threatens anyone’s freedom of thought, belief or religious practice. </p>
<p>Amendments to the Marriage Act cannot change people’s thoughts or beliefs. And consent is a necessary part of a valid marriage, so no one opposed to same-sex marriage could be forced to marry someone of the same sex.</p>
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Read more:
<a href="https://theconversation.com/if-australia-says-yes-churches-are-still-free-to-say-no-to-marrying-same-sex-couples-84271">If Australia says 'yes', churches are still free to say 'no' to marrying same-sex couples</a>
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<p>Clergy currently have the powers to decline to officiate at any wedding, for any reason, at their own discretion. No additional legislation is required to protect their freedom of religious practice.</p>
<p>Additionally, <a href="https://www.theguardian.com/commentisfree/2017/nov/09/smiths-same-sex-marriage-bill-isnt-perfect-but-its-a-workable-compromise">Dean Smith’s bill</a> includes the creation of a new category of marriage celebrant. This “religious celebrant” would be able to decline to officiate at same-sex weddings. </p>
<p>This bill, while creating a new exemption from sex-discrimination legislation, has the support of Labor and the Greens, and would likely pass the upper house.</p>
<h2>So what religious ‘freedoms’ need protecting?</h2>
<p>The two domains that the “no” campaign has consistently declared as being threatened by marriage equality are the education of children and individuals’ capacity to refuse service to homosexuals.</p>
<p>The introduction of marriage equality would change nothing about the current position of religion, parental authority, and children’s education. </p>
<p>Church and state marriage law have <a href="https://global.oup.com/academic/product/sexual-politics-in-the-church-of-england-1857-1957-9780199655106?cc=au&lang=en&">been at odds for 160 years</a>, ever since remarriage after divorce was made accessible in the British world in 1857 (leaving aside Henry VIII’s reasons for founding the Church of England). Parents whose views of marriage differ from state law have thus been communicating these differences to their children without obstruction for 160 years.</p>
<p>The idea that children in religious families should need new “protections” from knowledge of contemporary marriage law is concerning. Parents will continue to have the freedom to teach their children why the law is contrary to their moral or religious beliefs. </p>
<p>But withholding knowledge of the law regarding the protected characteristics of sex and gender from children potentially constitutes a harm.</p>
<p>The “no” campaign also argues that the protection of religious freedom requires that religious individuals should be exempt from sexual discrimination legislation, where that is in tension with their beliefs.</p>
<p>Religious organisations currently have significant exemptions from anti-discrimination legislation. State laws <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/eoa2010250/s82.html">currently permit</a> religious bodies to discriminate on the basis of sex, where such discrimination conforms with the “doctrines, beliefs or principals of the religion” or is necessary “to avoid injury to the religious sensitivities of adherents to the religion”.</p>
<p>For example, under current laws churches could refuse to hire out church halls for the wedding reception of a lesbian couple. And religious schools could <a href="http://www.smh.com.au/federal-politics/political-news/married-sunday-fired-monday-churches-threaten-to-dismiss-staff-who-wed-samesex-partners-20170817-gxy4ds.html">terminate the employment</a> of a male teacher who married another man.</p>
<p>Under current law, it is only religious bodies that have such exemptions from discrimination legislation. Leading “no” campaigners are arguing that these exemptions should be extended to individuals.</p>
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Read more:
<a href="https://theconversation.com/as-australians-say-yes-to-marriage-equality-the-legal-stoush-over-human-rights-takes-centre-stage-87337">As Australians say 'yes' to marriage equality, the legal stoush over human rights takes centre stage</a>
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<p>Such extensions would involve a massive, categorical readjustment of the relationship between religious freedom and sexual discrimination in Australia. As law professor Carolyn Evans <a href="https://pursuit.unimelb.edu.au/articles/same-sex-marriage-religious-freedom-and-the-law">argues</a>, there are good reasons for limiting extensions to exemptions from discrimination legislation. Such extensions would make every individual a law unto themselves. </p>
<p>Scratch the surface, and the fundamental homophobia behind individual exemptions to sex discrimination law becomes obvious. For it is only the allowance of discrimination in the provision of services to people with different religious convictions about sexuality that is being proposed. </p>
<p>Bakers, party planners, florists and caterers have had no problem up to this point providing services to people with different religious convictions. Christian florists have so far raised no objection to providing flowers to Muslim weddings, Jewish bar mitzvahs, or anyone with different religious convictions. </p>
<p>Arguing that religious sensitivities only need protecting with regard to sexuality, and no other area of religious conviction, suggests that this is not about freedom of religion, but about legitimising homophobia.</p>
<h2>Their end game all along?</h2>
<p>It is conceivable that “no” campaigners never believed their views would prevail in public opinion. It is possible that, all along, the end game of their fear-based campaign has been to categorically extend religious exemptions to sex discrimination legislation from organisations to individuals.</p>
<p>We are at an historical moment when churches’ <a href="http://journals.sagepub.com/eprint/hTnvJT8EIxWrSRz9fWBz/full">capacity to evade liability</a> for sexual harm has been <a href="https://www.childabuseroyalcommission.gov.au/">brought into the spotlight</a> more starkly than ever before.</p>
<p>It is worth asking why, in proposing amendments to marriage legislation, we should increase churches’ and religious individuals’ capacity to discriminate on the basis of sex, inflicting more sexual harm.</p><img src="https://counter.theconversation.com/content/85828/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy W. Jones receives funding from the Australian Research Council and the Australian Research Theology Foundation Incorporated.. </span></em></p>Churches have been exempt from sex discrimination laws for years – now those opposed to same-sex marriage want that exemption to be extended to individuals.Timothy W. Jones, Senior Lecturer in History, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/869282017-11-15T00:29:24Z2017-11-15T00:29:24ZTurnbull is on the winning side on marriage equality, but his troubles are far from over<figure><img src="https://images.theconversation.com/files/194710/original/file-20171115-30000-cjl3t8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The postal vote hasn’t really resolved the marriage equality issue for Turnbull.</span> <span class="attribution"><span class="source">AAP/Dean Lewins</span></span></figcaption></figure><p>At last this interminable, expensive, unnecessary, discriminatory, divisive and demeaning postal “vote” survey on marriage equality is over, with 61.6% voting in favour. </p>
<p><em>Unnecessary</em> because, unlike in the case of the <a href="https://theconversation.com/au/topics/ireland-same-sex-marriage-referendum-17098">Irish referendum</a>, there was no constitutional need for a popular vote on the issue.</p>
<p>Furthermore, it has merely confirmed what <a href="http://www.news.com.au/national/most-australians-back-same-sex-marriage/news-story/64b39e8a35ff9907394a0c8d1467fd0b">ten years</a> of opinion polls have already told us – that the majority of Australians support same-sex marriage. </p>
<p><em>Discriminatory</em>, because why were same-sex couples singled out for a political decision-making process that no other equivalent group in this country has had to endure? </p>
<p><em>Divisive</em> because the <a href="http://www.abc.net.au/news/2017-10-11/ssm-same-sex-marriage-respectful-debate-ugly-side/8996500">public passions</a> it aroused caused some bad behaviour on both sides and split families, friends, religious congregations and workplaces. </p>
<p><em>Demeaning</em> because the whole country was given a say on whether gays and lesbians could ask their partners the most intimate and intensely personal question of all: “Will you marry me”? </p>
<p>Above all, it was a deeply <a href="http://www.abc.net.au/news/2017-09-18/same-sex-marriage-survey-lgbtqi-mental-health-support/8955956">hurtful</a> process. Respectful “no” voters were hurt by accusations of bigotry that were sometimes made too indiscriminately. Nonetheless, gays and lesbians, who have long been discriminated against in Australian society, were subjected to particularly <a href="http://www.starobserver.com.au/news/national-news/hundreds-anti-lgbti-incidents-reported-marriage-survey/163687">nasty homophobic abuse</a>.</p>
<p><a href="https://www.psychology.org.au/Assets/Files/17APS-PI-ME-LGBTQI-C-IS-P1.pdf">Vulnerable children</a> in same-sex families encountered “no” campaign <a href="http://www.heraldsun.com.au/news/victoria/no-campaigns-homophobic-samesex-marriage-debate-harmful-to-kids/news-story/b95bad756e04a905602d9fcb63059e">messages</a> suggesting there was something inherently wrong with their own families; while transgender children were implicitly constructed as the <a href="http://www.abc.net.au/news/2017-08-30/why-the-first-no-campaign-ad-will-work/8856722">bogeys</a> that all parents should be worried their kids would turn into if same-sex marriage laws passed.</p>
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Read more:
<a href="https://theconversation.com/grattan-on-friday-same-sex-marriage-ballot-captures-attention-of-a-public-alienated-from-politicians-84456">Grattan on Friday: Same-sex marriage ballot captures attention of a public alienated from politicians</a>
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<p>Predictably, this was not the <a href="https://www.malcolmturnbull.com.au/media/speech-at-the-liberals-and-nationals-for-yes-campaign-launch-sydney">respectful debate</a> that Malcolm Turnbull promised. So, Labor, the Greens and crossbench opponents will be able to claim vindication for their opposition to the original plebiscite proposal. </p>
<p>They will continue to depict Turnbull as a weak leader who originally <a href="https://www.malcolmturnbull.com.au/media/transcript-doorstop-on-the-nbn-and-mobile-blackspots-program-marriage-equal">opposed</a> an unnecessary popular vote himself then buckled to the social conservatives in the Coalition. </p>
<p>Furthermore, the postal vote hasn’t really resolved the issue for Turnbull. It has merely allowed him to proceed to a conscience vote that Liberal Party members would once have expected automatically on issues such as marriage and gay law reform, albeit with even greater reason for voting “yes”. </p>
<p>Indeed, moderate Liberals, exercising their conscience votes, played a proud role historically in supporting issues such as the <a href="https://theconversation.com/ideas-for-australia-consensus-versus-the-culture-wars-getting-the-balance-right-56665">decriminalisation</a> of homosexuality. </p>
<p>So why didn’t that happen automatically in this case? A conscience vote was ruled out when the <a href="https://theconversation.com/why-australia-is-so-far-behind-the-times-on-same-sex-marriage-42327">Howard government decided</a> to use the same-sex marriage issue to try to wedge off socially conservative voters from Labor. The wedge didn’t really work because a fearful Labor initially voted with Howard to ban same-sex marriage.</p>
<p>Nonetheless, in the process, opposing same-sex marriage became a major Liberal policy and was used <a href="http://www.tandfonline.com/doi/abs/10.1080/10304312.2013.766308">symbolically to signal</a> support for a range of other socially conservative positions, including more traditional gender roles. </p>
<p>Subsequently, then-prime minister Tony Abbott hoped that proposing a plebiscite on same-sex marriage would electorally wedge Labor and that same-sex marriage could be either defeated, in a <a href="https://theconversation.com/talk-of-same-sex-marriage-impinging-on-religious-freedom-is-misconceived-heres-why-82435">1999 republic-like</a> turnaround or at least substantially delayed. </p>
<p>Only the delay has been achieved, with Australia <a href="https://doi.org/10.1017/gov.2016.36">lagging far behind</a> other equivalent countries. However, the postal vote has allowed social conservatives to mount a <a href="https://theconversation.com/talk-of-same-sex-marriage-impinging-on-religious-freedom-is-misconceived-heres-why-82435">highly contentious</a> “religious freedom” case for allowing forms of discrimination against same-sex couples who marry.</p>
<p><a href="https://www.theguardian.com/australia-news/2017/nov/10/almost-half-of-australians-back-right-to-refuse-same-sex-weddings-poll">Polls suggest</a> their message may have cut through to many voters, even though other polls still show a majority <a href="https://www.buzzfeed.com/lanesainty/four-in-five-australians-dont-want-an-unequal-ssm-law?utm_term=.foGpKBWXb#.yhwvpB3kR">disagreeing</a>.</p>
<p>So what now? Moderate Liberals such as Simon Birmingham have suggested that the obvious starting point for same-sex marriage legislation would be the <a href="https://theaustralianatnewscorpau.files.wordpress.com/2017/09/marriage-dean-smith-bill-2017-05-08-2-1.pdf">Dean Smith bill</a>.</p>
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<img alt="" src="https://images.theconversation.com/files/194686/original/file-20171114-30046-1u41pxu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/194686/original/file-20171114-30046-1u41pxu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/194686/original/file-20171114-30046-1u41pxu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/194686/original/file-20171114-30046-1u41pxu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/194686/original/file-20171114-30046-1u41pxu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=508&fit=crop&dpr=1 754w, https://images.theconversation.com/files/194686/original/file-20171114-30046-1u41pxu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=508&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/194686/original/file-20171114-30046-1u41pxu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=508&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A Sydney crowd reacts to the news of a victory for the ‘yes’ side in the same-sex marriage postal survey.</span>
<span class="attribution"><span class="source">AAP/David Moir</span></span>
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<p>That bill, like previous bills put forward by “yes” supporters, supports civil same-sex marriage but protects the right of religious organisations to decide whom they will marry. </p>
<p>However, it goes further in terms of protections for existing marriage celebrants and armed forces clerics. It also reaffirms the existing right of religious organisations and schools to teach their religious beliefs regarding marriage.</p>
<p>Labor has said it will support the Smith bill as a feasible cross-party compromise (though dissenting Labor members will still have a conscience vote). </p>
<p>While the Greens are concerned that the religious exemptions the Smith private member’s bill gives may go too far, they have also said that, if it came to the crunch they would <a href="https://www.theguardian.com/australia-news/2017/nov/11/greens-ready-to-back-dean-smith-marriage-equality-bill-as-consensus-option">support it</a> rather than see same-sex marriage defeated.</p>
<p>By contrast, many social conservatives in the Coalition will be supporting the type of measures in James Paterson’s proposed bill – though leading conservative Mathias Cormann has <a href="http://www.theaustralian.com.au/national-affairs/turnbull-picks-sides-in-samesex-marriage-bill-divide/news-story/d36a0c8641fab3080d43b3e0dfc3f81a">reportedly</a> helped facilitate the Smith bill.</p>
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Read more:
<a href="https://theconversation.com/grattan-on-friday-marriage-on-the-rocks-in-divided-liberal-party-82033">Grattan on Friday: Marriage on the rocks in divided Liberal Party</a>
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<p><a href="https://senatorpaterson.com.au/wp-content/uploads/2017/11/Marriage-Amendment-Definition-and-Protection-of-Freedoms-Bill-2017.pdf">Paterson’s bill</a> extends far beyond protection of religious organisations. It not only <a href="https://senatorpaterson.com.au/wp-content/uploads/2017/11/Explanatory-Memorandum-and-Statement-of-Compatibility-Summary.121117.pdf">provides protections</a> for private businesses to refuse services to same-sex weddings, but also <a href="http://www.abc.net.au/radio/programs/pm/new-ssm-bill-winding-back-anti-discrimination-laws/9146214">undermines</a> existing anti-discrimination laws in other ways. For example, it protects broader positions about issues such as gender which Paterson says is necessary in order for opponents to be able to make their case against same-sex marriage. </p>
<p>Even if Paterson’s bill is not put to the vote, supporters could still move amendments to the Smith bill based on Paterson’s principles. </p>
<p>However, <a href="http://www.smh.com.au/federal-politics/political-news/marriage-vote-malcolm-turnbull-slaps-down-conservative-bid-to-wind-back-antidiscrimination-laws-20171114-gzkxrg.html">Turnbull, George Brandis</a> and <a href="http://www.abc.net.au/news/2017-11-14/religious-protections-in-same-sex-marriage-bill-brandis-says/9146658">Birmingham</a> have all argued strongly against undermining existing anti-discrimination laws and giving businesses the right to deny services to same-sex couples getting married. This will be a major relief to same-sex couples as well as to Labor, which potentially risked being wedged on the issue. </p>
<p>Whether Liberal supporters of the “yes” case make further concessions on issues of protecting religious organisations remains to be seen. However, many social conservatives will be far from happy that Turnbull has opposed them on anti-discrimination exemptions for business services. </p>
<p>Some Liberal supporters may even threaten to defect to <a href="https://www.conservatives.org.au/">Cory Bernardi’s party</a>. Turnbull hopes to have the matter settled by Christmas but his troubles on this issue are far from over. </p>
<p>Consequently, the cause that was intended to wedge Labor has now ended up turning back upon the Liberals themselves. A socially conservative symbol that was meant to mobilise support from voters has instead mobilised warring factions within the government itself.</p><img src="https://counter.theconversation.com/content/86928/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Carol Johnson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>After an ugly and unnecessary postal survey, Malcolm Turnbull has had a win – but the conservatives in his government will still be pitching for a fight.Carol Johnson, Professor of Politics, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/873372017-11-14T23:14:01Z2017-11-14T23:14:01ZAs Australians say ‘yes’ to marriage equality, the legal stoush over human rights takes centre stage<figure><img src="https://images.theconversation.com/files/194674/original/file-20171114-26470-4b2ppm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">As the legal battle heats up, James Paterson's bill demonstrates an unconscionable misunderstanding about the indivisibility of human rights.</span> <span class="attribution"><span class="source">AAP/Daniel Munoz</span></span></figcaption></figure><p>The results of the Australian Marriage Law Postal Survey are in. Despite the voluntary nature of the survey, 12,727,920 (79.5%) eligible Australians voted. </p>
<p>By a margin of 61.6% to 38.4%, Australians have said “yes” to the proposition: </p>
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<p>Should the law be changed to allow same-sex couples to marry?</p>
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<p>Prime Minister Malcolm Turnbull is confident that parliament will <a href="http://www.sbs.com.au/news/article/2017/10/20/turnbull-says-same-sex-marriage-will-be-legal-christmas-if-yes-vote-succeeds">legislate to permit same-sex marriage</a> before parliament breaks in December. The route for change will be a private member’s bill, on which government members will have a conscience vote. </p>
<h2>Which law, and what change?</h2>
<p>To permit same-sex marriage, parliament must amend the Marriage Act.</p>
<p>The act currently <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma196185/s5.html">defines marriage</a> as:</p>
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<p>… the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.</p>
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<p>This definition has only been part of the act since 2004, when it was added at the initiative of the Howard government. The 2004 amendment sought to head off efforts by same-sex couples, married overseas, to have their marriages recognised as valid within Australia. It states: </p>
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<p><a href="https://www.legislation.gov.au/Details/C2004A01361">Certain unions are not marriages</a></p>
<p>A union solemnised in a foreign country between:
(a) a man and another man; or
(b) a woman and another woman;
must not be recognised as a marriage in Australia.</p>
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<p>The definition of marriage can be simply changed by removing the words “a man and a woman” and replacing them with “two people”. </p>
<p>Such a change will have flow-on effects throughout Australian society. For example, celebrants will be free to officiate at legal wedding ceremonies for same-sex couples. State and territory authorities will be empowered to register same-sex marriages. </p>
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Read more:
<a href="https://theconversation.com/explainer-what-legal-benefits-do-married-couples-have-that-de-facto-couples-do-not-83896">Explainer: what legal benefits do married couples have that de facto couples do not?</a>
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<p>Most significantly, same-sex couples will have equality of choice in how they want to formalise relationships. Those who choose to marry will be entitled to the <a href="https://theconversation.com/explainer-what-legal-benefits-do-married-couples-have-that-de-facto-couples-do-not-83896">legal benefits</a> of marriage. </p>
<p>However, despite the clear <a href="http://www.smh.com.au/federal-politics/political-opinion/the-great-betrayal-coalition-hardliners-throw-democracy-overboard-to-resist-samesex-marriage-20171113-gzkb9o.html">survey outcome</a>, the form of the required legislative change is likely to be heavily contested in parliament. </p>
<h2>Changing the definition of marriage is the simple part</h2>
<p>The bill to go before parliament will still allow some degree of discrimination against same-sex marriage. Some degree of “balance” will be sought between the right to equality of same-sex couples and the freedom of religion of those opposed to same-sex marriage. </p>
<p>This effort is expressed in the bill that Liberal MP Dean Smith intends to introduce to parliament as soon as <a href="https://www.theguardian.com/australia-news/2017/nov/09/conservatives-trying-to-delay-marriage-equality-with-own-bill-entsch">today</a>. An <a href="https://theaustralianatnewscorpau.files.wordpress.com/2017/09/marriage-dean-smith-bill-2017-05-08-2-1.pdf">object</a> of the Marriage Amendment (Definitions and Religious Freedoms) Bill is: </p>
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<p>… to allow equal access to marriage while protecting religious freedom in relation to marriage.</p>
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<p>The Smith bill would make the simple necessary change to the definition of marriage. It would also seek to protect religious freedom by: </p>
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<li><p>permitting ministers of religion to refuse to solemnise marriages;</p></li>
<li><p>permitting religious marriage celebrants to refuse to solemnise marriages; and</p></li>
<li><p>permitting a body established for religious purposes to “refuse to make a facility available, or refuse to provide goods and services, for the purposes of the solemnisation of a marriage”.</p></li>
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<p>These exceptions would appear in both the Marriage Act and the Sex Discrimination Act. </p>
<p>The Smith bill does not limit the grounds on which such refusals may be based. They could apply to same-sex marriages or heterosexual marriages. However, refusals must conform to the “doctrines, tenets or beliefs” of the relevant religion and be “necessary to avoid injury to the religious susceptibilities of that religion.”</p>
<p>The prime minister and cabinet members support the Smith bill as a <a href="http://www.theage.com.au/federal-politics/political-news/turnbull-ministers-reject-james-patersons-alternative-samesex-marriage-bill-20171113-gzk30z.html">starting point</a> for debate. They anticipate that parliament will <a href="https://www.sbs.com.au/news/article/2017/11/14/liberals-divided-over-religious-protections-eve-same-sex-marriage-survey-result">debate amendments</a> to the bill.</p>
<p>However, conservative government MPs have rejected the Smith bill as “<a href="https://www.theguardian.com/australia-news/2017/nov/08/eric-abetz-rejects-seriously-inadequate-marriage-equality-bill">seriously inadequate</a>”. Tony Abbott sees the debate as a site for the defence of <a href="https://www.sbs.com.au/news/article/2017/11/14/maintain-faith-abbott-tells-no-campaign">Western civilisation</a>. </p>
<h2>Rival bill exposes parliamentary division</h2>
<p>On Monday, Liberal senator James Paterson released an alternative Marriage Amendment (Definition and Protection of Freedoms) Bill. This bill is expected to attract the support of <a href="https://www.theguardian.com/australia-news/2017/nov/13/rival-same-sex-marriage-bill-to-trigger-coalition-showdown">marriage equality opponents</a>.</p>
<p>The <a href="https://senatorpaterson.com.au/wp-content/uploads/2017/11/Marriage-Amendment-Definition-and-Protection-of-Freedoms-Bill-2017.pdf">Paterson bill</a> would implement the definitional change as an either/or proposition, retaining the current definition of marriage but adding the alternative definition after it. </p>
<p>This bill is <a href="https://www.theguardian.com/australia-news/2017/nov/13/hanging-on-for-dear-life-hardliners-change-tack-on-same-sex-marriage?CMP=soc_567">interesting</a> in that it asserts an explicit foundation in international human rights law to justify forms of discrimination against same-sex marriage. It claims to fulfil Australia’s international obligations to protect:</p>
<blockquote>
<p>… the rights to freedom of thought, conscience, religion, expression and association in relation to the holding, expressing, or acting on, certain beliefs …</p>
</blockquote>
<p>The Paterson bill also expresses the intention to ensure: </p>
<blockquote>
<p>… as far as practicable, that everyone has the same rights to equality, regardless of religious or conscientious belief, as the rest of the community.</p>
</blockquote>
<p>Patterson claims an alternative was needed, as Smith’s bill does not go far enough to protect freedoms of religion, conscience or speech. </p>
<iframe src="https://www.facebook.com/plugins/video.php?href=https%3A%2F%2Fwww.facebook.com%2Fabcnews.au%2Fvideos%2F10155299047583983%2F&show_text=0&width=476" width="100%" height="476" style="border:none;overflow:hidden" scrolling="no" frameborder="0" allowtransparency="true" allowfullscreen="true"></iframe>
<p>The “protections” in the Paterson bill are considerably wider ranging than those in the Smith bill. For example, the Paterson bill would permit objectors to <a href="http://www.abc.net.au/news/2017-11-13/alternative-same-sex-marriage-bill-explainer/9143578">refuse to participate</a> in a same-sex wedding if participation would go against their religious or “conscientious” beliefs. </p>
<p>This provision would empower individuals and businesses to <a href="http://www.sbs.com.au/topics/sexuality/agenda/article/2016/10/04/comment-yes-you-do-have-bake-my-damn-gay-wedding-cake">refuse to participate</a> in weddings that do not conform to a “traditional” conception of marriage. These exceptions would apply, for example, to hotels, photographers, <a href="http://tonyabbott.com.au/2017/11/transcript-hon-tony-abbott-mp-address-alliance-defending-freedom-new-york/">florists</a>, <a href="https://www.theguardian.com/society/audio/2016/nov/01/gay-cake-owen-jones-episode-token-podcast">bakers</a> and <a href="http://www.news.com.au/national/politics/conservatives-mps-samesex-marriage-bill-to-override-antidiscrimination-laws/news-story/8c5e902aa8374ddacd5b432a73e9866a">hire car drivers</a>. </p>
<p>The Paterson bill would secure public funding for religious institutions determined to preserve their <a href="https://www.theguardian.com/australia-news/2017/nov/13/hanging-on-for-dear-life-hardliners-change-tack-on-same-sex-marriage?CMP=soc_567">existing exemptions</a> from anti-discrimination laws. The bill would also permit parents to withdraw children from classes if content is inconsistent with a “relevant marriage belief” or “relevant belief”. </p>
<p>This bill would impose significant limitations on existing <a href="http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/aa1977204/">anti-discrimination</a> <a href="http://hrc.act.gov.au/discrimination/discrimination-act/">laws</a>. These limitations aim to protect the rights of people who have certain beliefs to hold, express and act on those beliefs. </p>
<p>Protected beliefs <a href="http://www.theage.com.au/federal-politics/political-news/turnbull-ministers-reject-james-patersons-alternative-samesex-marriage-bill-20171113-gzk30z.html">include</a> that “the normative state of gender is binary”, that homosexual relationships are immoral or that sexual relations should be confined to marriage. </p>
<p>Another protected <a href="https://senatorpaterson.com.au/wp-content/uploads/2017/11/Marriage-Amendment-Definition-and-Protection-of-Freedoms-Bill-2017.pdf">belief</a> is that: </p>
<blockquote>
<p>… the family structure of a man and a woman united in marriage with their children is a fundamental building block of human society, and this family structure has significant advantages for the nurture and raising of children.</p>
</blockquote>
<p>According to the Paterson bill, people should be free from a threat of action for vilification if they are expressing their belief about same-sex marriage or a “relevant” other matter. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/if-australia-says-yes-churches-are-still-free-to-say-no-to-marrying-same-sex-couples-84271">If Australia says 'yes', churches are still free to say 'no' to marrying same-sex couples</a>
</strong>
</em>
</p>
<hr>
<p>The bill would create a criminal offence of “<a href="https://senatorpaterson.com.au/wp-content/uploads/2017/11/Marriage-Amendment-Definition-and-Protection-of-Freedoms-Bill-2017.pdf">victimisation</a>” and provide for civil remedies of injunction and damages. These aim to deter behaviour that might penalise, disadvantage or treat unfavourably a person acting on a relevant belief. </p>
<p>Hours before the survey results were announced, Turnbull rejected the Paterson bill as having “virtually no prospect” of passing. He said the government had no intention of <a href="https://www.theguardian.com/australia-news/2017/nov/14/turnbull-flatly-rejects-same-sex-marriage-bill-that-legalises-discrimination?CMP=share_btn_link">legalising discrimination</a> that is currently unlawful.</p>
<h2>Human rights in the balance</h2>
<p>It is true that rights claims can sometimes compete. Efforts to achieve balance may require some compromise. However, the Paterson bill demonstrates an unconscionable misunderstanding about the indivisibility of human rights. </p>
<p>The Smith bill goes sufficiently far to ensure that people cannot be required to formalise marriages that conflict with their religious beliefs. It is <a href="http://www.abc.net.au/news/2017-11-13/religious-exemptions-on-same-sex-marriage-are-a-backward-step/9145124">relatively uncontroversial</a> to ensure, for example, that a religious minister cannot be forced to marry a same-sex couple. </p>
<p>Yet there is a significant gulf between protecting the right of a person to freely practise their religion and permitting them to engage in discriminatory conduct, especially where that discrimination could have detrimental impacts well beyond the specific case of same-sex weddings. </p>
<p><a href="https://www.theguardian.com/australia-news/2017/nov/13/rival-same-sex-marriage-bill-to-trigger-coalition-showdown">Concerns</a> have been raised that wide-ranging scaling back of anti-discrimination laws could affect the prospective weddings of people who have been divorced or had children outside of marriage. </p>
<p>Australian Marriage Equality co-chair Alex Greenwich says Australia has moved well past the time when it was acceptable to have:</p>
<blockquote>
<p>… a sign outside the shops about who you will and won’t serve.</p>
</blockquote>
<p>The conservative bill is designed to elevate rights fundamental to a liberal worldview – freedoms of thought, conscience and religion – while constraining rights to equality and freedom from discrimination. The latter are essential protections for minority groups more vulnerable to prejudicial treatment in our society. </p>
<p>There is no hierarchy in which some human rights are positioned as of lesser status than others. Indeed, an attempt to establish such a hierarchy undermines the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx">essential goal</a> of <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx">human rights law</a> – to protect the “equal and inalienable rights of all members of the human family”.</p>
<p>Australia was recently <a href="https://theconversation.com/australias-human-rights-council-election-comes-with-a-challenge-to-improve-its-domestic-record-80953">elected</a> to the UN Human Rights Council. The government’s use of a non-binding opinion poll to drive decision-making about the rights of LGTBI people was soon after described as <a href="https://theconversation.com/un-slams-australias-human-rights-record-87169?utm_medium=email&utm_campaign=Latest%20from%20The%20Conversation%20for%20November%2013%202017%20-%2087737321&utm_content=Latest%20from%20The%20Conversation%20for%20November%2013%202017%20-%2087737321+CID_a8417b0ea8d71684782cef7b9062039b&utm_source=campaign_monitor&utm_term=UN%20slams%20Australias%20human%20rights%20record">unacceptable</a> by the UN Human Rights Committee. </p>
<p>The conduct of the federal parliament in coming weeks will be assessed by the Australian public in accordance with the <a href="http://www.theage.com.au/federal-politics/political-news/turnbull-ministers-reject-james-patersons-alternative-samesex-marriage-bill-20171113-gzk30z.html">survey results</a>. The international community will meanwhile judge Australia’s claim to be a <a href="https://foreignminister.gov.au/speeches/Pages/2016/jb_sp_161212.aspx">global leader</a> in human rights.</p>
<hr>
<p><em>Note: After the survey results were released, Dean Smith moved quickly to introduce his co-sponsored bill into parliament. James Paterson then said that he would not introduce his competing bill, but rather work on proposing amendments to the Smith bill.</em></p><img src="https://counter.theconversation.com/content/87337/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Maguire is a Co-Chair of the Indigenous Rights Subcommittee of Australian Lawyers for Human Rights and a member of Amnesty International. </span></em></p>Now that the battle for marriage equality has been won, the fight over the legislation to enable it will heat up.Amy Maguire, Senior Lecturer in International Law and Human Rights, University of NewcastleLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/833482017-09-04T02:40:25Z2017-09-04T02:40:25ZWithout proper protections, same-sex marriage will discriminate against conscientious objectors<figure><img src="https://images.theconversation.com/files/184318/original/file-20170901-26012-3x4leq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">If marriage is to be redefined, substantial protections should be provided for conscientious objectors.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Many politicians have <a href="http://www.sbs.com.au/news/article/2017/08/25/pyne-slams-red-herring-marriage-claims">confidently claimed</a> that the introduction of same-sex marriage does not have the potential to <a href="https://www.theguardian.com/australia-news/2017/aug/21/abbott-insists-marriage-equality-threat-to-religious-freedom-after-brandis-calls-it-a-trick">violate religious liberty</a> or the rights of conscientious objectors.</p>
<p>This is clearly false considering the situation overseas and in Australia. If Australia is to redefine marriage, substantial protections should be provided for conscientious objectors.</p>
<h2>Why do we need protections?</h2>
<p>In countries where same-sex marriage is legal, people who have opposed it have been <a href="http://www.adflegal.org/detailspages/case-details/cochran-v.-city-of-atlanta">fired</a> or <a href="https://www.forbes.com/sites/tonybradley/2014/04/05/backlash-against-brendan-eich-crossed-a-line/#13c4b0a26f8a">forced to resign</a> from their jobs.</p>
<p>Business owners such as <a href="https://www.adflegal.org/detailspages/case-details/state-of-washington-v.-arlene-s-flowers-inc.-and-barronelle-stutzman">florists</a>, <a href="http://news.sky.com/story/ashers-bakery-loses-gay-marriage-cake-legal-challenge-10630650">bakers</a> and <a href="http://www.nytimes.com/2013/11/19/us/weighing-free-speech-in-refusal-to-photograph-ceremony.html">photographers</a> have been forced to compromise their beliefs and provide their services or face legal sanctions. In one US case, this resulted in a <a href="http://www.dailymail.co.uk/news/article-3148472/Anti-gay-bakers-ordered-pay-135k-lesbian-couple-refused-wedding-cake-say-fine-ruin-financially-despite-raising-100-000-GoFundMe.html">$135,000 fine</a>. </p>
<p>Religious organisations that have refused to allow their facilities to be used for same-sex marriages have been denied government benefits such as <a href="http://www.nytimes.com/2007/09/18/nyregion/18grove.html">tax exemptions</a>. Universities with more traditional positions on marriage and sexuality have been <a href="https://www.dailyxtra.com/trinity-western-to-sue-after-being-denied-accreditation-60463">denied accreditation</a>. Advocacy groups promoting the view that marriage is only between a man and a woman have <a href="https://www.stuff.co.nz/national/96002410/charities-commission-strips-family-first-of-charitable-status">lost their charitable status</a>.</p>
<p>In rare situations, those who have refused to facilitate same-sex marriages <a href="https://www.nytimes.com/2015/09/09/us/kim-davis-same-sex-marriage.html">have been imprisoned</a>.</p>
<p>In Australia, where same-sex marriage has not been introduced, there are already many examples of individuals suffering from discrimination, intimidation, boycotts and legal action.</p>
<p>Hobart’s Catholic Archbishop Julian Porteous was required to appear before Tasmania’s anti-discrimination commissioner after distributing a <a href="http://www.sydneycatholic.org/pdf/DMM-booklet_web.pdf">letter defending traditional marriage</a>. This followed a <a href="http://www.themercury.com.au/news/tasmania/transgender-rights-activist-martine-delaney-drops-complaint-over-catholic-churchs-marriage-booklet/news-story/d8d9079bf932526b27e5f094e57dbe84?nk=7bd2d275fddd376333435b60d3ac811c-1474933967">complaint</a> that it violated anti-vilification laws. The complaint was withdrawn, but only after a substantial amount of time and money had been expended on the proceedings.</p>
<p>Opponents of the redefinition of marriage have also been forced to cancel <a href="http://www.theaustralian.com.au/news/nation/samesex-marriage-event-off-threats-to-hotel-staff/news-story/d45bd0f9e9a774fc3e3d0741f176da13?nk=3254f4e511a5bb0dff67889b7abad448-1504160567">hotel bookings for conferences</a> and been refused <a href="https://www.crikey.com.au/2016/09/26/printers-refuse-to-print-anti-same-sex-marriage-book/">printing services</a> for books promoting traditional marriage.</p>
<p>People and businesses have also experienced intimidation, boycotts and even death threats. This has included <a href="https://www.cis.org.au/commentary/articles/diversity-what-diversity/">university academics</a>, <a href="https://freedomforfaith.org.au/library/rights-clash-looms-in-same-sex-debate">corporate employees</a>, <a href="http://www.abc.net.au/news/2017-03-14/coopers-brewery-not-involved-gay-marriage-video/8351894">businesses</a>, <a href="http://www.heraldsun.com.au/blogs/andrew-bolt/saying-this-ad-lies-is-a-lie/news-story/aeb0c04e304fbf5ead61a0f7d8386cee">concerned mothers</a>, and <a href="http://www.abc.net.au/news/2017-08-25/suspicious-packages-addressed-to-acl-causes-evacuation/8844052">lobby groups</a>.</p>
<p>Governments have also been willing <a href="https://au.news.yahoo.com/nsw/a/36889114/city-of-sydney-100-000-yes-vote-pledge/">to donate</a> to proponents of same-sex marriage and provide other benefits (such as flying rainbow flags) while denying any such support for opponents of change. This is despite <a href="https://www.crikey.com.au/2017/08/10/abc-journalists-warned-to-be-fair-in-reporting-same-sex-marriage-debate/">40% of the population</a> supporting traditional marriage.</p>
<p>Importantly, supporters of change do not want to introduce same-sex marriage, but <a href="https://www.attorneygeneral.gov.au/Mediareleases/Documents/Exposure-Draft-Marriage-Amendment.pdf">two-person marriage</a>. This new definition will raise additional challenges for conscientious objectors. </p>
<p>Some of the issues relating to gender identity that have already arisen overseas include <a href="http://www.cbc.ca/news/canada/hamilton/court-rejects-hamilton-dad-s-fight-to-get-warnings-from-school-board-over-false-teachings-1.3870555">parents prevented from removing</a> their children from programs encouraging students to consider their gender identity, religious schools <a href="https://d3n8a8pro7vhmx.cloudfront.net/marriage/pages/1802/attachments/original/1502311817/138516__4.pdf?1502311817">threatened with closure</a> if they do not address issues of sexuality and gender identity in a government-approved manner, and the possibility of <a href="http://www.theblaze.com/news/2017/06/05/new-law-allows-government-to-take-children-away-if-parents-dont-accept-kids-gender-identity/">parents losing custody of their children</a> if they refuse to affirm their child’s chosen gender identity.</p>
<p>These are just a few examples that could be used to demonstrate the problems that may arise when marriage is redefined – especially when it has been redefined without providing substantial protections for conscientious objectors.</p>
<h2>How to provide substantial protections</h2>
<p>The importance of providing conscience protections is affirmed not just by opponents of change but also by advocates for same-sex marriage such as US law professor <a href="http://religionandpolitics.org/2015/04/01/why-law-professor-douglas-laycock-supports-same-sex-marriage-and-indianas-religious-freedom-law/">Douglas Laycock</a> and Liberal MP <a href="https://www.humanrights.gov.au/news/opinions/same-sex-marriage-law-protects-rights-all-parties">Tim Wilson</a>. </p>
<p>Their support indicates that conscience protections should not be seen as excusing bigotry. Rather, they are a legitimate means of best promoting everyone’s welfare.</p>
<p>These protections are particularly appropriate considering that a failure to adequately protect conscientious objectors <a href="http://www.onlineopinion.com.au/view.asp?article=19233">violates the right to equality</a>. This is the very right that advocates of change assert to be of such importance to the issue of marriage equality (despite international human rights law declaring that the right is <a href="http://mobile.abc.net.au/news/2017-09-01/what-does-human-rights-law-say-about-marriage-and-equality/8856552?pfmredir=sm">not violated</a> by a country deciding against introducing same-sex marriage).</p>
<p>The right to equality under international human rights law clearly protects attributes such as religion and political opinion. Examples include Articles 2 and 26 of the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx">International Covenant on Civil and Political Rights</a>. </p>
<p>A failure to protect conscientious objectors can be regarded as a violation of their right to equality. This is because it subjects them to discrimination based on their religion or political opinion.</p>
<p>The merits of providing such protections can also be supported on many other grounds. These include conscience rights, religious liberty, parental rights, privacy, freedom of association, the rights of children, and freedom of speech.</p>
<p>To provide effective protection to conscientious objectors, legislation redefining marriage should:</p>
<ul>
<li><p>permit individuals, companies and religious bodies to decline to facilitate a same-sex marriage or related celebration;</p></li>
<li><p>protect the freedom of individuals to express their views about marriage;</p></li>
<li><p>ensure government action does not inappropriately undermine parental duties; and</p></li>
<li><p>prohibit discrimination by government bodies, companies and individuals against conscientious objectors.</p></li>
</ul>
<p>Despite the importance of providing such protections, the failure of so many politicians to recognise that redefining marriage will cause Australians to suffer discrimination does not inspire confidence that these protections will be provided. If politicians won’t even recognise the potential for harm despite overwhelming evidence it is very unlikely that they will strongly advocate for comprehensive protections for conscientious objectors.</p>
<p>The probability of this outcome is indicated by the bills proposed <a href="https://www.scribd.com/document/355646076/Marriage-Amendment-Definition-and-Religious-Freedoms-Bill-2017">this year</a> and <a href="https://www.attorneygeneral.gov.au/Mediareleases/Documents/Exposure-Draft-Marriage-Amendment.pdf">previously</a>. These provided very limited protections for religious ministers, civil celebrants and religious organisations. </p>
<p>The failure of federal politicians to take seriously the legitimate concerns that people have about the consequences of changing our marriage laws may be one of the reasons why so many will be voting “no” at the upcoming postal ballot.</p><img src="https://counter.theconversation.com/content/83348/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Greg Walsh does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Conscience protections for those opposed to same-sex marriage should not be seen as excusing bigotry. Rather, it is a legitimate means of best promoting everyone’s welfare.Greg Walsh, Senior Lecturer, School of Law, University of Notre Dame AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/824502017-08-18T09:06:49Z2017-08-18T09:06:49ZNational poll vs sample survey: how to know what we really think on marriage equality<p>The plan to use the Australian Bureau of Statistics <a href="http://www.financeminister.gov.au/media-release/2017/08/09/next-steps-national-plebiscite-same-sex-marriage">to conduct</a> the federal government’s postal plebiscite on <a href="http://www.abc.net.au/news/2017-08-08/same-sex-marriage-pm-moves-to-hold-postal-plebiscite-vote/8784822">marriage reform</a> raises an interesting question: wouldn’t it be easier, and just as accurate, to ask the ABS to poll a representative sample of the Australian population rather than everyone? </p>
<p>Given that the vote is voluntary and non-binding, its sole purpose appears to be to find out what Australians actually think of the idea. On the face of it, conducting a sample survey sounds like an easy and cost-effective alternative to the A$122 million postal vote. Or is it? </p>
<h2>A margin of error</h2>
<p>Survey sampling experts use mathematical formulae to compute a margin of error for their polls. This reflects the variability due to the fact that we are dealing with a statistical sample, not the whole population.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/when-it-comes-to-same-sex-marriage-not-all-views-deserve-respect-82433">When it comes to same-sex marriage, not all views deserve respect</a>
</strong>
</em>
</p>
<hr>
<p>For example, suppose we find that 63 of a simple random sample of 100 people say they believe in marriage reform. Skipping over a few technical nuances for ease of discussion, your statistician friend might help you to compute an associated margin of error.</p>
<p>There is a simple way to approximate what that margin of error is, by using the following formula:</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/182505/original/file-20170818-28151-1qhejvh.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/182505/original/file-20170818-28151-1qhejvh.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/182505/original/file-20170818-28151-1qhejvh.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=139&fit=crop&dpr=1 600w, https://images.theconversation.com/files/182505/original/file-20170818-28151-1qhejvh.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=139&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/182505/original/file-20170818-28151-1qhejvh.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=139&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/182505/original/file-20170818-28151-1qhejvh.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=175&fit=crop&dpr=1 754w, https://images.theconversation.com/files/182505/original/file-20170818-28151-1qhejvh.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=175&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/182505/original/file-20170818-28151-1qhejvh.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=175&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Where p is the percentage who report the outcome of interest and n is the sample size.</span>
<span class="attribution"><span class="source">The Conversation</span></span>
</figcaption>
</figure>
<p>So in our case <em>p</em> is 63% (or 0.63) and <em>n</em> is 100. Entering this into the formula gives us:</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/182506/original/file-20170818-28123-wz0jfj.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/182506/original/file-20170818-28123-wz0jfj.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/182506/original/file-20170818-28123-wz0jfj.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=139&fit=crop&dpr=1 600w, https://images.theconversation.com/files/182506/original/file-20170818-28123-wz0jfj.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=139&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/182506/original/file-20170818-28123-wz0jfj.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=139&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/182506/original/file-20170818-28123-wz0jfj.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=175&fit=crop&dpr=1 754w, https://images.theconversation.com/files/182506/original/file-20170818-28123-wz0jfj.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=175&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/182506/original/file-20170818-28123-wz0jfj.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=175&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Entering the numbers.</span>
<span class="attribution"><span class="source">The Conversation</span></span>
</figcaption>
</figure>
<p>Crunching the numbers and rounding up gives us a margin of error in this case of about +/-10%.</p>
<p>So you could then say something like “we are 95% confident that between 53% and 73% of the Australian population believes in marriage reform”. Clearly that’s a large margin of error and a larger sample would allow us to report a tighter range.</p>
<p>If our survey were based on 1,000 people then the margin of error would reduce to +/-3%, which is what you get in many political opinion polls reported in the media.</p>
<p>Such a margin of error would be ok if your sample survey result shows something like a 63%/37% split on the issue, because in this case the 3% margin of error would not alter the result. But what if the result was 52% to 48%?</p>
<p>So conducting a reliable survey is simply a matter of ensuring a large enough sample size to guarantee a suitably small margin of error. Easy, right? Unfortunately, there is much more to the story. </p>
<h2>Selecting a sample</h2>
<p>Another fundamental thing to consider is how you actually go about recruiting the people in your survey. </p>
<p>You could just post your survey on the internet and then sit back and wait for people to respond. The problem is that you don’t know who is going to respond.</p>
<p>You could get a listing of telephone numbers, randomly select people from that, then call them and ask the question. But most people I know don’t even have a landline, and I know how most of us respond when we get one of those annoying computerised calls on the mobile asking us to “please participate in a short survey”.</p>
<p>The <a href="https://www.cambridge.org/core/journals/social-science-history/article/president-landon-and-the-1936-literary-digest-poll/E360C38884D77AA8D71555E7AB6B822C">spectacular failure of the Literary Digest</a> weekly journal to predict the outcome of the 1936 US presidential election illustrates the danger of relying on telephone listings to identify potential survey participants. </p>
<p>Even though it used a <a href="https://www.math.upenn.edu/%7Edeturck/m170/wk4/lecture/case1.html">sample size of about 2.4 million people</a>, a fundamental problem was that back in 1936, telephones were still new and very much a luxury item, particularly in the wake of the Great Depression. </p>
<p>So a sample drawn from telephone listings was biased towards wealthier members of the population, who had different voting habits to the poor and disenfranchised, who were underrepresented in the phone poll.</p>
<p>Drawing their sample from a listing of people who owned a telephone thus broke the cardinal law of sampling, which is to ensure that the sample is representative of the population of interest. </p>
<h2>Getting the right sample</h2>
<p>A much better strategy is to draw your survey from a listing that is guaranteed to include pretty much everybody, such as the electoral roll. A survey-sampling expert would advise you not to do a simple random sample from the listing, but rather to use some clever strategies to improve your chances of getting a representative sample.</p>
<p>So-called stratified sampling targets survey participants according to characteristics such as age and gender. Multistage sampling strategies might first select from a listing of possible geographical areas, and then sample individuals who live in those selected areas. </p>
<p>While it is a bit more complicated to compute the associated margin of error with such strategies, you can be more confident that your final sample is truly representative of the population. </p>
<h2>The problem of no-shows</h2>
<p>Once you are confident of your survey design, your next challenge is to take account of the fact that some people will inevitably fail to respond. Unlike a compulsory census or election where people are required to respond by law, sample surveys are notorious for the <a href="http://www.people-press.org/2012/05/15/assessing-the-representativeness-of-public-opinion-surveys/">problem of non-response</a>. </p>
<p>Some people may be on holiday and never even see your survey request. Others might see your request, but are uninterested. Others may be interested but too busy or distracted to take part. </p>
<p>Some may be well-intentioned and even fill out the survey you sent them, but lose the envelope before managing to get it to a mailbox. Depending on how diligent you are in chasing up people who don’t respond to your survey, you could easily end up with a scenario in which only 10% of those you were targeting actually respond to your survey. </p>
<p>As long as the chances of non-response are the same for everyone, this is not necessarily a disaster. You can, for example, reflect the reduced sample size in your margin of error calculation. </p>
<p>If you took your statistician friend’s advice, you would probably have even boosted your initial survey target number in anticipation of non-response. In practice, however, non-response rates tend to vary a lot from person to person. </p>
<p>If the same factors also influence how people vote, then you are in a situation where the results of your survey can be seriously biased. </p>
<p>For example, suppose that older Australians are more likely to respond to the survey than younger Australians. Older Australians might also be more likely to vote against marriage reform than younger Australians. This means that the overall survey results will be biased towards the opinions of the older Australians and consequently underestimate the overall proportion of Australians who are in favour of marriage reform. </p>
<h2>Weighting your result</h2>
<p>There are some clever <a href="http://www.smh.com.au/comment/samesex-marriage-there-is-one-good-thing-about-the-postal-plebiscite-20170816-gxxcdj.html">sample reweighting strategies</a> that can be used to account for non-response rates that vary according to age, sex and other measurable characteristics. </p>
<p>A more insidious problem occurs when a person’s opinion on the question of interest influences their decision on whether or not to respond to the survey. This so called “informative non-response” tends to be a high risk in settings where emotionally charged questions are being asked.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/using-the-abs-to-conduct-a-same-sex-marriage-poll-is-legally-shaky-and-lacks-legitimacy-82245">Using the ABS to conduct a same-sex marriage poll is legally shaky and lacks legitimacy</a>
</strong>
</em>
</p>
<hr>
<p>So using sampling survey methodology to determine the proportion of Australians who believe in same-sex marriage would be a challenge fraught with many of these issues.</p>
<p>That leaves us back with the ABS and the voluntary, non-binding postal survey of everyone on the electoral roll.</p>
<p>The ABS will be able to adjust for some of the inevitable challenges associated with non-response, as long as it also collects relevant demographics such as age, gender, area of residence and so on.</p>
<p>But in a scenario where the results are close to the 50/50 line, I feel it will be a daunting task to deduce how the country really feels about this important question.</p><img src="https://counter.theconversation.com/content/82450/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Until earlier this year, Professor Ryan was a member of the Methodology Advisory Committee for the Australian Bureau of Statistics. She receives funding from the Bill and Melinda Gates Foundation, the Australian Research Council, the Australian Red Cross and the Sax Institute. She is also an Adjunct Professor of Biostatistics at Harvard University in the USA. </span></em></p>Australians will be asked to complete a voluntary, non-binding postal vote on marriage reform. Wouldn’t it be easier - and cheaper - to do a sample survey instead?Louise Ryan, Distinguished Professor of Statistics, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/824332017-08-16T20:12:46Z2017-08-16T20:12:46ZWhen it comes to same-sex marriage, not all views deserve respect<figure><img src="https://images.theconversation.com/files/181911/original/file-20170814-14751-z2dddk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Respect the people in any same-sex marriage debate, but you don't have to respect their views.</span> <span class="attribution"><a class="source" href="https://www.pexels.com/photo/food-couple-sweet-married-2226/">Pexels/SplitShire</a>, <span class="license">Author provided</span></span></figcaption></figure><p>One of the expectations in the ongoing debate over marriage reform in Australia is that all views should be respected.</p>
<p>But if we want to uphold the values of the enlightenment and of deliberative democracy, then whatever side of the debate you are on, demanding views be treated with respect is a flawed idea.</p>
<p>This may sound contradictory, but it goes to a point too often missed in such circumstances: people are worthy of respect, ideas are not.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/facts-are-not-always-more-important-than-opinions-heres-why-76020">Facts are not always more important than opinions: here's why</a>
</strong>
</em>
</p>
<hr>
<p>We naturally adopt a respectful attitude to people. At this basic level, people have to work hard to lose our respect, and, even then, we may choose not to disregard them because we value human life and dignity. We appreciate that they contribute in some way to the social norms we all enjoy, and that they, like us, are creators of society as well as participants in it.</p>
<p>Ideas have no such empathetic traction. Unlike people they cannot suffer, they do not know joy, and they do not contribute by themselves to the happiness of others. </p>
<p>That is not to say there are no really good or really bad ideas. But they do need to stand or fall exclusively on their merits, and often within their own contexts. They should be subject to critical scrutiny and survive only though articulation and argumentation.</p>
<h2>The fallacy of deepest offence</h2>
<p>It may be painful to acknowledge, but what we view as a core belief to us may be seen differently by others. Even if we feel that the belief is a strong part of our identity. Like all ideas in a free society, it must be permissible to subject that core belief to open inquiry.</p>
<p>To assume that an idea may not be questioned because it is a part of your identity, and that an attack on it is an attack on you equivalent to a denial of human respect, is a fallacy. I call this the Fallacy of Deepest Offence.</p>
<p>It is a blurring of the line between people and ideas. It is a device by which ideas are rendered immune to critical inquiry behind the claim of deepest possible offence: an insult to human dignity.</p>
<p>Failing to recognise this fallacy creates two problems. The first is that we lose the ability to reflect on our own internal processes. If we do not look inwards and question what we see, we ossify - led more by our creed than by our critical faculties.</p>
<p>The second is that we become less tolerant of others, less willing to work collaboratively, and less able to comprehend arguments. Both of these diminish our ability to contribute and to coexist.</p>
<p>If you want to believe that the world is made of snow, that women are inferior to men, that homosexuality is morally wrong, or that relationships between people of the same sex should not be legitimised through marriage, then go ahead.</p>
<p>But the instant you take that belief into the public arena, your idea will be rightfully tested. The minute you suggest others should believe it too, you will be challenged. When you ask that the taxes of your fellow citizens support your belief, you will be resisted. This is exactly how an open society operates and should operate. </p>
<p>Your ideas are not immune to criticism just because you express them with sincerity.</p>
<h2>Ideas need arguments, not assertions</h2>
<p>Our arguments are our rational probes into the world. When they work, we can feel that we are on solid intellectual ground. When they do not, we know we need to refashion our thinking or to consider more deeply how our arguments are received by others. </p>
<p>Our arguments are not only designed to make our case publicly, but they also challenge us to look closely at our own reasoning. </p>
<p>When proponents of the status quo on marriage ask for respect, they have every right to receive it. But they have no such right for their views. </p>
<p>If robust analysis of their arguments shows up their weaknesses, then offence, or claiming a lack of respect, is not an option. The onus is on them to create a better argument. </p>
<p>The Australian Christian Lobby, for example, <a href="https://acl.nationbuilder.com/marriage_coalition">lists four assertions on its website</a> as to why same sex marriage should not be permitted:</p>
<ul>
<li>redefining marriage will threaten your freedom of speech </li>
<li>redefining marriage can take away your religious freedom </li>
<li>redefining marriage is the step before redefining gender itself, and</li>
<li>redefining marriage will take away children’s rights — every child deserves a mum and a dad. </li>
</ul>
<p>Some of these have <a href="https://theconversation.com/tony-abbott-morphs-same-sex-marriage-into-a-culture-war-issue-82279">recently been repeated</a>, equally devoid of justification, by former prime minister Tony Abbott.</p>
<p>The lack of logical or evidentiary support around these claims is breathtaking. Nowhere on the ACL’s website are found reasons supporting these claims, let alone complete arguments to analyse and evaluate. </p>
<p>So by all means let’s be respectful in the marriage equality debate. Let’s refrain from focusing on the person and play the ball instead. But let’s not assume that that means an absence of demand for rational engagement. </p>
<p>We should hold people to task for the views they express and make it clear that if they are not prepared to craft a cogent argument their slogans are nothing more than gang colours. </p>
<p>To claim offence when questioned is not only to commit the fallacy of deepest offence, is also to disrespect utterly the right of your fellows to engage in honest inquiry, and that is a very deep offence indeed.</p><img src="https://counter.theconversation.com/content/82433/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Ellerton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Your ideas are not immune to criticism just because you express them with sincerity: people are worthy of respect, ideas are not.Peter Ellerton, Lecturer in Critical Thinking, Director of the UQ Critical Thinking Project, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/684092016-11-07T23:54:03Z2016-11-07T23:54:03ZThe plebiscite is dead, but the quest for marriage equality lives on<figure><img src="https://images.theconversation.com/files/144975/original/image-20161107-4704-1ow114y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The plebiscite has been defeated, but the fight to end discrimination against gay couples who want to marry will continue.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The <a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5728">same-sex marriage plebiscite bill</a> has been on life support ever since <a href="http://www.smh.com.au/federal-politics/political-news/samesex-marriage-plebiscite-dead-after-labor-caucus-agreed-to-block-legislation-20161010-grzdkj.html">Labor announced</a> that it would not support an expensive, non-binding national vote on whether same-sex couples should be allowed to marry. Last night, surrounded by many of its close friends and relatives, the decision was made to discontinue life support. The plebiscite can now be pronounced dead and given the burial it deserves.</p>
<p>In the end the vote in the Senate was 29 in support of holding a plebiscite, and 33 against, with WA Liberal senator Dean Smith abstaining. The 33 who voted against consisted of senators from Labor, the Greens, three from the Nick Xenophon Team and Derryn Hinch. The Coalition managed to convince four One Nation Senators, the Liberal Democrat senator David Leyonhjelm and Tasmanian senator Jacqui Lambie to vote in favour of the plebiscite.</p>
<p>The defeat of the plebiscite bill is a win for the LGBTI community and their supporters, who feared that allowing a national debate about whether they are entitled to equal rights would subject them to a splenetic campaign of personal attacks. We only need to look at the campaigns that were run in opposition to the screening of the <a href="http://www.smh.com.au/nsw/the-truth-behind-the-gayby-baby-ban-20150901-gjcg0j.html">Gayby Baby documentary in NSW</a>, and the <a href="http://www.abc.net.au/news/2016-03-16/governments-safe-schools-review-labelled-joke-by-mps/7250974">Safe Schools Coalition</a>, to know there are significant portions of the Australian population who are not ready to have mature and respectful debates on any issues to do with the rights of LGBTI people.</p>
<p>The defeat of the plebiscite is also a win for democracy. As <a href="https://www.theguardian.com/australia-news/2016/nov/07/marriage-equality-plebiscite-bill-set-to-fail-as-nxt-vows-to-block-it-in-senate">Senator Stirling Griff</a> of the Nick Xenophon Team observed: “We’re elected to make decisions, not to outsource them.” </p>
<p>Similarly, Liberal Senator <a href="https://www.theguardian.com/australia-news/2016/nov/07/marriage-equality-plebiscite-bill-set-to-fail-as-nxt-vows-to-block-it-in-senate">Dean Smith</a> said that a plebiscite would “irretrievably undermine the principle of parliamentary sovereignty”. </p>
<p>It is a fundamental principle of democracy that we elect our politicians to make decisions on our behalf. Former High Court Judge <a href="http://www.smh.com.au/federal-politics/political-news/michael-kirby-warns-against-dangerous-political-precedent-of-a-gay-marriage-plebiscite-20160821-gqxv9g.html">Michael Kirby</a> was right to highlight the dangerous precedent this plebiscite could have set. He said:</p>
<blockquote>
<p>It will mean any time that there is something that is controversial, that’s difficult for the parliamentarians to address or they don’t want to address, they’ll send it out to a plebiscite. </p>
</blockquote>
<p>Before the final demise of the plebiscite bill, there were many government MPs asserting that there would be no parliamentary vote on marriage equality until 2019 if Labor did not back the plebiscite. However, this is likely to have been a negotiating tactic to increase pressure on Labor. </p>
<p>Now that the distraction of a plebiscite is over, it is time for some good faith negotiations on the way forward. NSW Premier <a href="http://www.abc.net.au/news/2016-10-11/greyhound-ban-baird-government-confirms-backflip/7921000">Mike Baird</a> provides a useful precedent of how this can be done. After announcing a ban on greyhound racing in July 2016, <a href="http://www.abc.net.au/news/2016-10-11/greyhound-ban-baird-government-confirms-backflip/7921000">Baird turned around three months later</a> and said: </p>
<blockquote>
<p>So it’s clear in hindsight as we reflect on this we got it wrong — I got it wrong, the Cabinet got it wrong, the government got it wrong. </p>
</blockquote>
<p>Prime Minister Malcolm Turnbull would win back much of the respect he has lost in recent times if he took a leaf out of Mike Baird’s book, and acknowledged that a plebiscite was no longer possible, so it is the duty of parliament to move forward with deciding whether same-sex couples should be allowed to marry. </p>
<p>There are several bills that the Turnbull government can choose to support:</p>
<ol>
<li>Labor’s <a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5708">Marriage Legislation Amendment Bill 2016</a><br></li>
<li> Adam Bandt, Cathy McGowan and Andrew Wilkie’s <a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5711">Marriage Legislation Amendment Bill 2016 No. 2</a> (The cross-benchers’ Bill); </li>
<li> Senator David Leyonhjelm’s <a href="http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1041">Freedom to Marry Bill 2016</a>.<br></li>
</ol>
<p>These bills have some significant differences, mostly around the extent to which different individuals and organisations are exempt from being involved in same-sex weddings. It is appropriate that religious organisations should not be forced to ordain marriages that are against their religious beliefs. However, such exemptions should not extend to non-religious businesses such as civil celebrants, florists and caterers. For this reason, Leyonhjelm’s bill should not be adopted, since it seeks to exempt suppliers of wedding goods and services from their obligations not to discriminate pursuant to the <em><a href="http://www.austlii.edu.au/au/legis/cth/consol_act/sda1984209/">Sex Discrimination Act 1984.</a></em> </p>
<p>Supporting Labor’s bill might be a bridge too far for Malcolm Turnbull. However, if he were to support the cross-benchers’ Bill, opposition leader Bill Shorten might well do the same. We could then have a much needed demonstration of our politicians making the 45th Australian Parliament function in an effective and democratic manner, and in a way that enables the pressing issues of our time to be dealt with in a timely manner.</p>
<p>If Turnbull is unable to garner the support of the conservative members of his party, then we will all have to wait until 2019, when <a href="https://theconversation.com/with-the-plebiscite-set-to-be-blocked-who-will-leave-a-legacy-of-marriage-equality-64522">I predict </a>, Prime Minister Bill Shorten will promptly and proudly enact legislation amending the <em>Marriage Act</em> to allow all couples to marry, regardless of their sexual orientation, gender identity or intersex status.</p><img src="https://counter.theconversation.com/content/68409/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paula Gerber does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Now that same-sex marriage will not be put to a national vote, it is up to the Prime Minister to ensure that marriage equality is written into law.Paula Gerber, Professor of Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/664822016-10-05T19:15:50Z2016-10-05T19:15:50ZWith that ring, I thee judge: why the law should not allow exceptions on marriage equality<figure><img src="https://images.theconversation.com/files/140387/original/image-20161004-20223-1rg1ilv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In the US and Ireland there have been headline court cases of bakers refusing to make cakes for same-sex weddings.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In July 2012, Charlie Craig and David Mullins went into Masterpiece Cakeshop in Lakewood, Colorado, to order a cake for their wedding. Jack Phillips, the owner of the shop, responded by informing them he would not make a cake for a same-sex wedding. Craig and Mullins immediately got up and left. Later they sued Phillips for discrimination.</p>
<p>What if this happened in Australia? </p>
<p>While Phillips’ conduct may have been lawful here until 2012, in 2013 the Sex Discrimination Act was <a href="https://www.legislation.gov.au/Details/C2013A00098">amended</a> to explicitly include sexual orientation as a prohibited ground of discrimination. As a result, it is now unlawful for <a href="https://theconversation.com/anti-discrimination-law-exemptions-dont-strike-the-right-balance-between-rights-and-freedoms-61660">most</a> employers and service providers to deny equal treatment to anyone on the basis of their sexual orientation.</p>
<p>This amendment has been contentious, particularly in light of the current push to legislate for marriage equality. It has been argued by some religious groups that it could result in a breach of their religious freedom by forcing them to provide services to LGBTI people.</p>
<p>This is exactly what did happen in Colorado. Craig and Mullins were <a href="https://www.scribd.com/document/189976204/Initial-Decision-in-Masterpiece-Cakeshop-Case">successful in their legal action</a> and Phillips was ordered to:</p>
<blockquote>
<p>… [c]ease and desist from discriminating against … same-sex couples by refusing to sell them wedding cakes or any other product [they] would provide to heterosexual couples.</p>
</blockquote>
<p>In his judgment, Justice Spencer observed:</p>
<blockquote>
<p>At first blush, it may seem reasonable that a private business should be able to refuse service to anyone it chooses. This view, however, fails to take into account the cost to society and the hurt caused to persons who are denied service simply because of who they are.</p>
</blockquote>
<p>He went on to explain that US law has interpreted religious freedom narrowly to primarily cover:</p>
<blockquote>
<p>… activities fundamental to the individual’s religious belief, that do not adversely affect the rights of others, and that are not outweighed by the state’s legitimate interests in promoting health, safety and general welfare. </p>
</blockquote>
<p>In dismissing Phillips’ religious freedom arguments, Justice Spencer emphasised that:</p>
<blockquote>
<p>… [t]o excuse all religiously motivated conduct from state control would permit every citizen to become a law unto himself.</p>
</blockquote>
<p>He noted that: </p>
<blockquote>
<p>… [c]onceptually, [Phillips’] refusal to serve a same-sex couple due to religious objection to same-sex weddings is no different from refusing to serve a biracial couple because of religious objection to biracial marriage.</p>
</blockquote>
<p>Some Australian religious groups have expressed concern about this shift towards the stronger protection of the rights of LGBTI people. <a href="http://www.abc.net.au/religion/articles/2015/10/15/4331899.htm">Archbishop Anthony Fisher</a>, for example, argues this protection risks excessively reducing the space for religious liberty and “licences [the] vilification of people’s conscientious beliefs”.</p>
<p>However, such arguments privilege the status quo under which a narrow segment of society have been allowed to assert their rights and freedoms at the expense of the rights and freedoms of others.</p>
<p>Discrimination is rife in Australia. People are regularly denied equal access to both employment on the grounds of <a href="http://www.abc.net.au/news/2014-08-28/johnson-a-nation-of-coffee-drinkers-and-racists/5702264">race</a>, <a href="https://www.humanrights.gov.au/news/stories/workplace-discrimination-begins-pregnancy-0">parental status</a>, and <a href="http://www.smh.com.au/business/workplace-relations/disability-discrimination-still-rife-in-australian-workplaces-australian-network-on-disability-conference-20160516-gowaim.html">disability</a>. </p>
<p>They are also denied access to services, demonstrated by taxi drivers leaving Indigenous Australians <a href="http://www.theage.com.au/victoria/actor-and-aboriginal-elder-uncle-jack-charles-refused-taxi-in-melbourne-again-20160413-go5lrb.html">stranded on the street</a>, employers declining to interview people <a href="http://www.smh.com.au/federal-politics/political-news/muslims-face-racial-discrimination-but-dont-have-protection-under-act-report-finds-20151103-gkq8hw.html">with “ethnic-sounding names”</a>, breastfeeding mothers being asked to leave <a href="http://www.couriermail.com.au/news/queensland/liana-webster-forced-to-leave-bribie-island-aquatic-centre-after-breastfeeding-her-daughter-rori/story-e6freoof-1226555303135">swimming pools</a> and <a href="http://www.abc.net.au/news/2016-02-26/mass-breastfeeding-protest-in-bendigo/7199458">food courts</a>, and real estate agents <a href="http://www.austlii.edu.au/au/journals/IndigLawB/2000/54.html">refusing housing to Indigenous Australians</a>. </p>
<p><a href="https://www.humanrights.gov.au/our-work/legal/legislation">Anti-discrimination legislation</a> is a legal response to this ongoing cultural problem. Its gradual expansion in Australia reflects international human rights law and a vision for a more equal society – one in which everyone can have equal access to employment and services, and no-one will be subjected to the dehumanising experience of being denied equal treatment.</p>
<p>Nonetheless, the federal government is <a href="https://www.theguardian.com/australia-news/2016/sep/14/marriage-equality-law-would-protect-conscientious-objectors-who-reject-gay-weddings">reported</a> to be considering the inclusion of “appropriate protections for religious freedom and conscientious objections” alongside any amendments to the Marriage Act.</p>
<p>While it is unclear what these protections might include, the proposal sounds similar to a proposed exemption in Northern Ireland that <a href="http://www.ibtimes.co.uk/northern-irelands-anti-gay-amendment-branded-licence-discriminate-1489188">would allow businesses</a> to refuse service in situations where someone feels they are required to “endorse a same-sex sexual relationship in violation of his/her faith identity”.</p>
<p>The Northern Ireland amendment came after Daniel and Amy McArthur, owners of Ashers Bakery in Belfast, were fined for refusing to provide a cake with a <a href="http://www.bbc.com/news/uk-northern-ireland-35474167">pro-marriage equality slogan</a>. While this case does raise some <a href="https://www.theguardian.com/commentisfree/2016/feb/01/gay-cake-row-i-changed-my-mind-ashers-bakery-freedom-of-conscience-religion">questions around freedom of political expression</a>, the proposed exemption has been criticised for effectively providing carte blanche to all forms of discrimination against LGBTI people.</p>
<p>In finding an appropriate balance between the right to equality and the right to religious freedom, Australia could draw inspiration from US law. It focuses protection on:</p>
<blockquote>
<p>… activities fundamental to the individual’s religious belief, that do not adversely affect the rights of others, and that are not outweighed by the state’s legitimate interests in promoting health, safety and general welfare. </p>
</blockquote>
<p>The right to discriminate against others does not fit this criterion.</p>
<hr>
<p><em>Cristy Clark will be online for an Author Q&A between 1 and 2pm AEDT on Thursday, October 6, 2016. Post your questions in the comments below.</em></p><img src="https://counter.theconversation.com/content/66482/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cristy Clark does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As the US example shows, freedom of religion should not be allowed to morph into the right to discriminate.Cristy Clark, Lecturer in Law, Southern Cross UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/645372016-09-23T23:04:59Z2016-09-23T23:04:59ZHow heterosexual couples are protesting marriage inequality<figure><img src="https://images.theconversation.com/files/135752/original/image-20160829-17884-vaj03h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Heterosexual couples who believe in marriage equality, and the civil celebrants who marry them, are using wedding ceremonies to protest marriage law in Australia.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>As the spring wedding season warms up, increasing numbers of heterosexual couples are using their wedding ceremonies to call for a change to Australia’s marriage law.</p>
<p>Australian support for marriage equality has <a href="http://www.crosbytextor.com/news/record-support-for-same-sex-marriage/">steadily increased</a> over the years; it has risen from just 38% in 2004. A <a href="http://www.smh.com.au/federal-politics/political-news/poll-shows-growing-support-for-samesex-marriage-20140714-3bxaj.html">July 2014 poll</a> showed 72% of Australians supported the legalisation of same-sex marriage.</p>
<p>A clear <a href="http://www.crosbytextor.com/news/record-support-for-same-sex-marriage/">majority of married heterosexual couples</a> favour marriage equality. And a 2016 poll suggests that support for marriage equality is high among <a href="http://www.sbs.com.au/news/article/2016/05/24/over-half-australians-migrant-backgrounds-support-same-sex-marriage-poll">second-generation Australians</a>.</p>
<p>Despite this support for marriage equality, marriage itself is in decline in Australia. There were just <a href="http://www.abs.gov.au/AUSSTATS/abs@.nsf/allprimarymainfeatures/893C1288678FD232CA2568A90013939C?opendocument">5.2 marriages per 1000 people in 2014</a>, down from 6.2 in 2004 and <a href="https://aifs.gov.au/facts-and-figures/marriage-australia">9.2 in 1950</a>. These figures are <a href="https://theconversation.com/why-are-fewer-people-getting-married-60301">much lower than in the US</a>. And 74.1% of Australians who do get married now choose a <a href="http://www.abs.gov.au/AUSSTATS/abs@.nsf/allprimarymainfeatures/893C1288678FD232CA2568A90013939C?opendocument">civil rather than religious wedding</a>.</p>
<h2>Institutionalised discrimination</h2>
<p>At every civil wedding ceremony in Australia, the discriminatory nature of marriage must be announced by law. The Marriage Act <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s46.html">obliges civil celebrants</a> to say:</p>
<blockquote>
<p>Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.</p>
<p>Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.</p>
</blockquote>
<p>This requirement, known colloquially as the “monitum” (Latin for “warning”), has existed since the Marriage Act was enacted as Australia’s first national marriage law in 1961.</p>
<p>The provision reflects <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2011-2012/SameSexMarriage#_Toc316885794">common law</a> and religious views prevalent at the time. Garfield Barwick, the key architect of Australia’s marriage laws, <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;db=HANSARD80;id=hansard80%2Fhansardr80%2F1960-05-19%2F0180;orderBy=_fragment_number,doc_date-rev;page=0;query=Dataset%3Ahansardr,hansardr80%20Decade%3A%221960s%22%20Year%3A%221960%22%20Month%3A%2205%22;rec=1;resCount=Default">explained in 1960</a> that the legislation was:</p>
<blockquote>
<p>… a contribution towards the stability of marriage.</p>
</blockquote>
<p>These ideas persist today. Arguments for protecting the institution of marriage were mustered again by the parliament in 2004, this time to justify explicitly <a href="http://www.austlii.edu.au/au/legis/cth/num_act/maa2004165/">excluding same-sex couples from the Marriage Act</a>. Philip Ruddock, then the attorney-general, <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=CHAMBER;id=chamber%2Fhansardr%2F2004-06-24%2F0037;query=Id%3A%22chamber%2Fhansardr%2F2004-06-24%2F0000%22">said</a>:</p>
<blockquote>
<p>The government has consistently reiterated the fundamental importance of the place of marriage in our society … [and will] take steps to reinforce the basis of this fundamental institution.</p>
</blockquote>
<h2>Heterosexual solidarity</h2>
<p>Given the ubiquity of civil marriage and support for marriage equality, how do heterosexual brides and grooms who support marriage equality manage the legal requirement of the monitum at their weddings?</p>
<p>My ongoing research reveals heterosexual couples who believe in marriage equality, and the civil celebrants who marry them, use their wedding ceremonies to protest marriage law in Australia in a number of ways.</p>
<p>Most common were “statements of protest” read by the civil celebrant, bride, groom or another guest before or after the monitum. These express dissatisfaction with the current state of the law and a desire for reform.</p>
<p>Other methods included:</p>
<ul>
<li><p>the celebrant reading the monitum quietly or turning the PA system down; </p></li>
<li><p>holding private, legal wedding ceremonies with the monitum, and then a separate, public ceremony without it; </p></li>
<li><p>holding a commitment ceremony instead of a wedding; </p></li>
<li><p>having guests wear ribbons in solidarity; and</p></li>
<li><p>from one celebrant, the omission of the monitum during small weddings where they were confident they would not be reported.</p></li>
</ul>
<p>My sample is too small to reliably state the extent to which there is a commitment to marriage equality in civil wedding ceremonies nationwide. Estimates from the celebrants I spoke to ranged, at the low end, from a commitment to marriage equality in 2-3% of weddings conducted by that celebrant to 80-90% at the high end. </p>
<p>I will be surveying all registered Australian civil celebrants to reliably understand the magnitude of the protest phenomenon.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/135738/original/image-20160829-17884-1nu015l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/135738/original/image-20160829-17884-1nu015l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/135738/original/image-20160829-17884-1nu015l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/135738/original/image-20160829-17884-1nu015l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/135738/original/image-20160829-17884-1nu015l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/135738/original/image-20160829-17884-1nu015l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/135738/original/image-20160829-17884-1nu015l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Multiple recent opinion polls suggest the majority of Australians back same-sex marriage.</span>
<span class="attribution"><span class="source">Charles Platiau</span>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<h2>Reconciling protests with personal opportunity</h2>
<p>What my research does show is getting married while disagreeing with marriage law is a pretty narrow space to inhabit. </p>
<p>One bride, Edith (not her real name), arranged for her celebrant to make a heartfelt statement of protest after the monitum at her wedding. Edith acknowledged the difficulties:</p>
<blockquote>
<p>I do have friends that say they wouldn’t get married until the law changes. And I felt like I didn’t want to wait for that. We have reasons for wanting to get married now and do it. There are probably some people who would feel that that’s selling out, and I totally get that, but I just felt like I really wanted to make that clear and not partake in something exclusionary.</p>
</blockquote>
<p>Some couples aren’t prepared to sign up. Suzanne and her partner, Kieran, had a wedding ceremony surrounded by family and friends in 2015, but this was not a legal marriage. Suzanne explained why:</p>
<blockquote>
<p>Now, women aren’t so much discriminated in the Marriage Act, but same-sex couples absolutely are. And, to me, signing that document is equivalent to saying, ‘I don’t like Hitler, I’m going to join the Nazi Party’ … [people that] get married are inadvertently endorsing the legislation. </p>
<p>If everybody turned around and said, ‘Well, I’m just not going to get married under this legislation anymore,’ the government would be forced to look at it … I cannot sign that document, because as soon as I say I’m legally married … I am consenting to the very issues that I stand against.</p>
</blockquote>
<p>Suzanne’s views might suggest something important about Australia’s discriminatory marriage laws: rather than protecting the institution of marriage, they may be directly damaging it. Not only are LGTBI couples unable to access marriage, but straight couples may be unwilling to join an institution seen as exclusionary and outdated.</p>
<p>Reforming marriage laws will <a href="https://theconversation.com/an-ethical-case-for-marriage-equality-in-australia-39698">strengthen the institution</a>. It will almost <a href="https://www.washingtonpost.com/news/the-fix/wp/2015/04/28/heres-how-many-gay-marriages-the-supreme-court-could-make-way-for/">certainly increase the marriage rate</a> among gay and straight couples. The sooner the law changes, the less likely marriage’s decline in Australia will be terminal.</p><img src="https://counter.theconversation.com/content/64537/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Becky Batagol does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Given the ubiquity of civil marriage and support for marriage equality, how do heterosexual brides and grooms who support marriage equality manage legal requirements at their weddings?Becky Batagol, Senior Lecturer in Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/644912016-08-29T20:05:27Z2016-08-29T20:05:27ZMarriage ‘inequality’ is a threat to religious freedom – and it is probably unconstitutional<figure><img src="https://images.theconversation.com/files/135713/original/image-20160829-17887-1wge1xx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A minister of religion is not obliged to solemnise any marriage.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>Despite the <a href="https://theconversation.com/same-sex-marriage-plebiscite-appears-doomed-64492">Greens</a> and the <a href="https://twitter.com/KJBar/status/770060062698172416">Nick Xenophon Team</a> promising to vote against it, a bill authorising a plebiscite on marriage equality will soon come before federal parliament. Whether a plebiscite happens or a parliamentary free vote takes place instead, the marriage equality debate is ramping up. </p>
<p>A core issue of that debate is the idea, propounded by those who support existing marriage laws, that amendments to the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/">Marriage Act</a> will presage an attack on religious freedom and people of faith in the Australian community. This could not be further from the truth. It is actually marriage inequality that threatens religious freedom.</p>
<h2>Marriage equality is not a threat to religious freedom</h2>
<p>The Australian Constitution <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s116.html">says clearly</a> that the federal parliament must not make any law “for prohibiting the free exercise of any religion”. The federal parliament simply does not have power to interfere improperly with religious freedom.</p>
<p>Section 47 of the Marriage Act <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s47.html">currently says</a> a minister of religion is not obliged to solemnise any marriage. This means that if a particular minister refuses to solemnise an interracial marriage, an interracial couple cannot sue for racial discrimination. </p>
<p>If a particular minister has a religious objection to divorcees remarrying, a divorcee seeking to remarry needs to find another minister or a civil celebrant. They cannot sue for discrimination. </p>
<p>Marriage equality advocates want to keep this section. If the Marriage Act is changed to allow same-sex marriages, ministers of religion will not be required to solemnise those marriages. And this section means a minister of religion cannot be sued for discrimination for refusing to solemnise a same-sex marriage. </p>
<p>Legal marriage equality is not an attempt at telling religious groups what they should or should not believe or who should be allowed to participate in their religious ceremonies.</p>
<h2>Marriage inequality is a threat to religious freedom</h2>
<p>What if a minister of religion actually wants to solemnise a same-sex marriage? What if their religion welcomes same-sex couples and believes same-sex couples can be properly married in the eyes of their God or Gods? </p>
<p>Such ministers and such religions exist in Australia. But the Marriage Act says those ministers of religion cannot solemnise those unions.</p>
<p>The Marriage Act does much more than deny legal recognition to same-sex unions. It <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s101.html">makes it a crime</a> for a person to purport to solemnise a marriage unless authorised to do so. Since Australia does not have marriage equality, no minister of religion is authorised to solemnise a same-sex marriage in Australia and purporting to do so is a crime.</p>
<p>The act also <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s113.html">goes further</a> and makes it a crime to hold a separate religious marriage ceremony unless the couple has first been legally married. Since being legally married is not possible for same-sex couples, it is a crime for a minister of religion to hold a non-legally binding religious marriage ceremony for a same-sex couple.</p>
<p>If an opposite-sex couple wants a religious marriage ceremony first and then a legal ceremony later, that is also a crime. It is the same with the situation where the couple does not want a legal ceremony because they are happy to be legally de factos. </p>
<p>The penalty is a A$500 fine or imprisonment for six months. Although there have been no cases of it happening, a minister of religion in Australia can be sent to prison simply for holding a religious marriage ceremony for a same-sex couple. </p>
<h2>A constitutional challenge?</h2>
<p>These crimes may well be unconstitutional. Making it a crime to have a religious marriage ceremony for a same-sex couple looks rather like prohibiting the free exercise of those religions that accept same-sex marriage.</p>
<p>Two High Court constitutional cases are relevant. In a <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1912/65.html">case in 1912</a>, the High Court held that compulsory military training for teenage boys did not prohibit the free exercise of religion even if a boy had religious objections to military training. The High Court said the training had “nothing at all to do with religion”. The boy remained free to practise his religion.</p>
<p>The situation with the Marriage Act crimes is different. A religious ceremony has everything to do with religion.</p>
<p>In the <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1943/12.html">Jehovah’s Witnesses case</a> in 1943, the High Court held that the free exercise of religion was not absolute. It held that the Constitution did not protect activities seriously prejudicing the war effort even if performed in the exercise of some religion.</p>
<p>Again, the situation with the Marriage Act crimes is different. There is no justification for criminalising a harmless religious ceremony, which everyone knows has no legal effect, but which may have religious significance for the participants. </p>
<p>Ministers of religion who support marriage equality would be able to challenge the Marriage Act crimes in the High Court. They would stand a good chance of winning.</p>
<p>There are lots of reasons to support marriage equality. Religious freedom is one of them.</p><img src="https://counter.theconversation.com/content/64491/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Luke Beck does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ministers of religion who support marriage equality would be able to challenge the Marriage Act in the High Court. They would stand a good chance of winning.Luke Beck, Lecturer in Constitutional Law, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/630982016-08-02T04:00:10Z2016-08-02T04:00:10ZIf Australia is going to have a plebiscite on marriage equality, how should it work?<figure><img src="https://images.theconversation.com/files/132129/original/image-20160727-5673-15pb1fw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The plebiscite on whether Australia should legalise same-sex marriage is constitutionally unnecessary.</span> <span class="attribution"><span class="source">AAP/Alan Porritt</span></span></figcaption></figure><p>In August 2015, the Abbott government <a href="http://www.smh.com.au/federal-politics/political-news/tony-abbott-flags-plebiscite-on-samesex-marriage-in-bid-to-defuse-anger-20150811-giwyg1.html">committed the Coalition</a> to a plebiscite on whether Australia should enact marriage equality. </p>
<p>Since the election, <a href="https://www.theguardian.com/australia-news/2016/jul/18/turnbull-suggests-marriage-equality-plebiscite-may-be-delayed-until-2017">Prime Minister Malcolm Turnbull</a> and <a href="http://www.abc.net.au/news/2016-07-24/plebiscite-only-way-to-resolve-same-sex-marriage-george-brandis/7656350">Attorney-General George Brandis</a> have promised the vote will take place soon. But does Australia need to have a plebiscite? And if we do have one, how should it work?</p>
<h2>Constitutionally unnecessary</h2>
<p>This plebiscite is constitutionally unnecessary. The <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2013/55.html">High Court ruled</a> in December 2013 that the federal parliament has the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html">constitutional ability</a> to pass legislation providing for marriage equality. There is no need for constitutional change in Australia, unlike in some other countries <a href="http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail2013112800060#WRR00350">such as Ireland</a>. </p>
<p>The High Court <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2013/55.html#fnB16">also made clear</a> that parliaments have changed the legal understanding of marriage, and of what marriage entails, many times in Australia’s history.</p>
<p>It is parliament’s responsibility and within parliament’s power to legislate on marriage. This is not surprising: Australians expect parliament and government to make significant and controversial decisions about the budget, the tax system, the country’s defence and much more. There is no reason for marriage to be different. </p>
<p>The plebiscite will therefore be an unnecessary and <a href="http://www.news.com.au/finance/economy/australian-economy/marriage-equality-plebiscite-could-cost-australia-more-than-half-a-billion-dollars-data/news-story/9ae8060b5e10ceff7fff429dccc3f7d7">costly</a> vote, with <a href="https://www.theguardian.com/australia-news/2016/jun/21/same-sex-marriage-plebiscite-will-license-hate-speech-says-penny-wong">potentially damaging consequences</a> for many <a href="http://www.smh.com.au/federal-politics/political-news/biggest-ever-study-of-lgbtiq-australians-finds-85-oppose-plebiscite-on-samesex-marriage-20160801-gqi6i3.html">Australians</a>. It has, nevertheless, been promised.</p>
<h2>Designing plebiscites</h2>
<p>Under Australia’s constitutional and legal arrangements, there is no set formula for how a plebiscite should be organised. Australians make a distinction between referendums, which are national votes <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s128.html">required to amend the Constitution</a> and which must be conducted in a particular way; and plebiscites, which are national votes for other purposes.</p>
<p>Australia has had just three national plebiscites: two <a href="http://www.aec.gov.au/Elections/referendums/types.htm#plebiscites">on conscription of troops</a> during the first world war, and <a href="http://www.aec.gov.au/elections/referendums/national-song-poll.htm">a 1977 vote</a> on the national anthem. </p>
<p>It <a href="http://www.smh.com.au/comment/samesex-marriage-plebiscite-facing-multiple-challenges-20160724-gqcglv.html">seems likely</a> parliament will need to pass the framework legislation for any marriage plebiscite. So how should this plebiscite be designed?</p>
<p>When designing the plebiscite, the parliament should bear in mind Britain’s recent vote on leaving the European Union. </p>
<p>One of the truly <a href="https://theconversation.com/how-is-the-uks-brexit-referendum-different-from-australian-referendums-61375">remarkable features</a> of the Brexit vote was that it took place without any clear proposal on what would actually happen in the event of a vote to leave the EU, and when it would take effect. As a result, more than a month later the British people and government are still figuring out what “Leave” means.</p>
<p>If a national vote is worth having on marriage equality, the Brexit trap must be avoided. Australian voters need to know what they are getting if they vote “Yes”; they should know their vote will have an effect and what that effect will be. If a national vote is worth having, it should be more than an “advisory” in-principle poll.</p>
<h2>Avoiding the Brexit trap</h2>
<p>So, here is a proposal for the plebiscite’s design. While it may not be perfect, it will help Australia avoid the Brexit trap. </p>
<p>The federal parliament should pass a single new law. That law should do three things:</p>
<ul>
<li><p>First, it should set out precisely and in detail the proposed amendments to the <a href="https://www.legislation.gov.au/Details/C2013C00164">Marriage Act</a>. There are already <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr5660%22">plenty of examples</a> of what this could look like. Existing proposals would legislate for marriage equality while also ensuring that, as is currently the case, religious ministers need not marry couples they don’t wish to. There could also be details of related amendments that might need to be made to any other legislation.</p></li>
<li><p>Second, it should set up the machinery for how the plebiscite vote itself will be run and administered (the <a href="http://www.sbs.com.au/news/article/2016/07/24/compulsory-vote-gay-marriage-question">compulsory</a> or <a href="https://www.theguardian.com/commentisfree/2016/jul/28/the-marriage-equality-plebiscite-and-the-constitution-it-may-not-be-plain-sailing">voluntary</a> nature of voting, for example, or <a href="https://www.attorneygeneral.gov.au/transcripts/Pages/2016/ThirdQuarter/24-July-2016-Interview-with-Fran-Kelly-Insiders.aspx">public funding</a> for the campaigns). It should also ensure there is a formal process for someone – like the governor-general – to officially declare the result soon after all the votes are counted. There is no need for a <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s128.html">complicated formula</a> to determine which side has won; whichever of “Yes” or “No” gets the most votes, that side wins.</p></li>
<li><p>Third, and most importantly, the law should state that the proposed amendments to the Marriage Act do not take effect right away. Instead, the law should make it clear that, if there is a “Yes” vote, the proposed amendments would take effect within 30 days of that result being officially declared. If there is a “No” vote, then the proposed amendments do not take effect.</p></li>
</ul>
<p>These three elements ensure the Brexit trap is avoided. Voters would know the proposal that is on the table, right down to the punctuation. This means the question on the ballot paper could be something simple:</p>
<blockquote>
<p>Do you agree to the proposed changes to the Marriage Act that are set out in the new law?</p>
</blockquote>
<p>Every voter’s choice would be relatively straightforward: “Yes” or “No” to a particular proposal.</p>
<p>What’s more, voters would know that if they vote “Yes”, federal parliament does not need to take any further action. In the event of a “Yes” vote, the proposed amendments will automatically come into effect soon after the governor-general declares the vote. And voters who vote “No” will understand what, precisely, they are saying “No” to.</p>
<h2>Making the vote count</h2>
<p>Under this plan, voters will know their vote matters, and that their vote will have an effect. But there are risks involved. </p>
<p>As the 1999 <a href="http://www.aec.gov.au/elections/referendums/1999_referendum_reports_statistics/1999.htm">republic referendum</a> demonstrated, there can be political risks in having a concrete proposal on the table. And the very nature of any plebiscite means that, at some point in the future, federal parliament could choose to revisit the result, whatever it is, and even choose to amend the Marriage Act again.</p>
<p>But the plebiscite would have created facts on the ground: a “Yes” vote would make marriage equality a reality soon after the vote.</p>
<p>Alternatively, Australia could run the risk of the Brexit trap: a vote could be designed without a clear proposal and without a clear plan for what happens in the event of a “Yes” vote. But Australian voters deserve better than that.</p>
<p>The plebiscite is unnecessary and it may well <a href="http://www.smh.com.au/comment/why-a-plebiscite-on-samesex-marriage-is-dangerous-and-divisive-20160414-go63vs.html">prove divisive</a>. There are some doubts over whether <a href="https://www.theguardian.com/commentisfree/2016/jul/28/the-marriage-equality-plebiscite-and-the-constitution-it-may-not-be-plain-sailing">particular features</a> of a plebiscite may be constitutional. </p>
<p>It isn’t <a href="https://www.australianmarriageequality.org/2016/07/04/media-release-ame-calls-for-political-parties-to-work-together-to-deliver-marriage-equality/">too late</a> for the government to reconsider, nor for the opposition parties <a href="http://www.smh.com.au/federal-politics/federal-election-2016/will-bill-shorten-block-the-samesex-marriage-plebiscite-20160711-gq31we.html">to block</a> the plebiscite in parliament. But if it is going to happen, the plebiscite should be a chance for Australians to cast a meaningful vote on a clear proposal.</p><img src="https://counter.theconversation.com/content/63098/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ryan Goss does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’s the plebiscite Australia doesn’t have to have. But if the plebiscite on marriage equality goes ahead, how should it be designed?Ryan Goss, Senior Lecturer in Law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/422472015-05-25T20:07:12Z2015-05-25T20:07:12ZSame-sex marriage should not be a matter for a conscience vote<p>There has been much debate about whether MPs <a href="https://theconversation.com/drafts/42299/edit">should be allowed a conscience vote</a> on same-sex marriage. Many suggest that religious sentiment rather than party policy should determine how parliamentarians vote. Despite what people often assume, however, same-sex marriage is a political rather than a religious issue; that is why the debate is about whether or not it should be legal, not whether or not it fits with any religious doctrine.</p>
<p>Same-sex marriage would already occur if the state did not interfere because there are plenty of people (vicars, priests, marriage celebrants) ready and willing to marry gay people. The reason this does not happen is because the state forbids it.
If you have any doubt about this, read the <a href="http://www.comlaw.gov.au/Details/C2004A01361/Html/Text#param0">Marriage Amendment Act 2004</a>, which states:</p>
<blockquote>
<p>Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.</p>
</blockquote>
<p>There is nothing to stop us changing this to:</p>
<blockquote>
<p>Marriage may be contracted in accordance with law by two persons without distinction as to their sex.</p>
</blockquote>
<p>That is what the <a href="https://theconversation.com/why-irelands-marriage-referendum-could-go-right-down-to-the-wire-41953">Irish Constitution will now say</a>.</p>
<p>In 2004, the Australian <a href="http://www.smh.com.au/articles/2004/05/27/1085461876842.html">government decided</a>, with the support of the Labor opposition, to deny a section of the population a right that can be enjoyed by the rest of the community. To oppose same-sex marriage, therefore, means that one supports state discrimination regarding a right deemed so fundamental to human wellbeing that it is included in the Universal Declaration of Human Rights (<a href="http://www.un.org/en/documents/udhr/">Article 16</a>).</p>
<h2>Religion ought not rule in a secular democracy</h2>
<p>My preference would be for the state to stop interfering with marriage, but that is a topic for another day. Given that it does interfere, and differentiates between heterosexual and same-sex marriage, it better have very good reasons for doing so.
As stated above, theology cannot do the heavy lifting because marriage is defined by the state not religion.</p>
<p>The fact that some religions suggest same-sex unions are an abomination is also irrelevant. The liberal-democratic state should not be in the business of imposing the religious beliefs of one group on another group. A religious person who finds such unions contradict her faith should pause before entering into one, but she has no good reason for stopping other people from doing so.</p>
<p>Opposition does not come only from the religious. In a <a href="http://www.annesummers.com.au/conversations/julia-gillard/">conversation with Anne Summers</a> at the Sydney Opera House, former prime minister Julia Gillard told the audience she is opposed to same-sex marriage because marriage has traditionally been between a man and a woman. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/E-mChLO917s?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Julia Gillard offered a couple of arguments against same-sex marriage, neither of which stands up well.</span></figcaption>
</figure>
<p>This is a terrible argument. Wives were traditionally deemed the <a href="http://en.wikipedia.org/wiki/Coverture">property of the husband</a> and rape within marital bonds was permitted. I doubt Gillard would offer her support for these traditions simply because that is how we used to do things.</p>
<p>Gillard also offered a more general opposition to all forms of marriage based on her feminist beliefs. On these grounds, however, same-sex marriage seems better than the heterosexual version because it is not founded on a tradition of male domination. There is certainly nothing in Gillard’s anti-marriage stance that supports discriminating against same-sex marriage. </p>
<p>The main point, however, is that Gillard’s distaste for marriage may be a good reason for her to avoid it, but it is not a good reason for disallowing it for other people. </p>
<h2>Rights of children are a furphy too</h2>
<p>But, some people will protest, “What about the children?” This concern was raised in the debate in Ireland by (despite scandals over child abuse) supporters of the Catholic Church. </p>
<p>Well, what about the children? It turns out they are just fine. The social science data shows that children raised by same-sex couples are <a href="http://journalistsresource.org/studies/society/gender-society/same-sex-marriage-children-well-being-research-roundup">no better or worse off</a> than children raised by heterosexual couples despite the social ostracism they often face. If we really care about these children we can help them by removing the stigma attached to same-sex marriage.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/82808/original/image-20150525-32555-1b2up0q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/82808/original/image-20150525-32555-1b2up0q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/82808/original/image-20150525-32555-1b2up0q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=826&fit=crop&dpr=1 600w, https://images.theconversation.com/files/82808/original/image-20150525-32555-1b2up0q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=826&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/82808/original/image-20150525-32555-1b2up0q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=826&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/82808/original/image-20150525-32555-1b2up0q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1038&fit=crop&dpr=1 754w, https://images.theconversation.com/files/82808/original/image-20150525-32555-1b2up0q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1038&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/82808/original/image-20150525-32555-1b2up0q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1038&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In 1959, after Gladys Namagu was prohibited from marrying her white fiance, Mick Daly, the power to ban interracial marriage was removed without any conscience vote.</span>
<span class="attribution"><a class="source" href="http://hdl.handle.net/10070/56466">Douglas Lockwood Collection/Northern Territory Library</a></span>
</figcaption>
</figure>
<p>The arguments above suggest that MPs should not be allowed a conscience vote on same-sex marriage. It is a matter of conscience whether a parliamentarian decides to marry a person of the same sex, but it is not a matter of conscience whether other people are allowed to do so.</p>
<p>If party leaders suggested a conscience <a href="http://www.abc.net.au/news/2011-07-01/croomemarriage/2778326">vote on inter-racial marriages</a> or marriages between Catholics and Protestants there would be outrage, but this is exactly what is happening with same-sex marriage. The position of the party leaders should be clear: all party members should be required to vote in favour of same-sex marriage. In Labor’s case, that is consistent with the party’s policy platform. To allow otherwise is to condone discrimination. </p>
<p>It is a great shame that Australia is so far behind the times on this issue. Ireland is a country where homosexuality was outlawed until 1993 and yet they legalised same-sex marriage this year and in Friday’s referendum they voted by a large majority to reify this decision by changing their constitution. If conservative Catholic Ireland can do it, I am sure we can.
</p><img src="https://counter.theconversation.com/content/42247/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David van Mill does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Same-sex marriage is about state recognition of the union between two people and is a political issue. Religious belief can apply in a church and in individual decisions, but not to a secular state.David van Mill, Associate Professor in Political Science and International Relations, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/252002014-04-03T03:28:53Z2014-04-03T03:28:53ZWhy Norrie’s court victory is a leap forward for everyone<p>Have you ever asked yourself why institutions continue to demand that we identify ourselves as male or female on every form? What difference does gender make to my bank account, to the tax office, or to the many other bureaucracies we deal with in daily life? </p>
<p>While it may only a minor irritation for me to have to specify that I’m female, for many others it’s a constant confrontation of who they are and how they identify. But now there’s hope for change. </p>
<p>Many of you would have read about the case of Norrie versus NSW Registry of Births, Marriages and Deaths this morning. Norrie was born male, undertook gender reassignment surgery, but subsequently felt that <a href="http://www.smh.com.au/nsw/sexless-in-the-city-a-gender-revolution-20100311-q1l2.html">neither gender</a> matched their feelings. </p>
<p>Yesterday, <a href="http://www.theguardian.com/world/2014/apr/02/third-gender-must-be-recognised-by-nsw-after-norrie-wins-legal-battle">the high court ruled</a> that New South Wales must allow Norrie to legally identify as having a non-specific gender. What’s telling is that in its ruling, the court pointed out that yet again the law is behind scientific facts: </p>
<blockquote>
<p>For the most part, the sex of the individuals concerned is irrelevant to legal relations. </p>
</blockquote>
<p>The obvious exception to this is the Marriage Act, which, in Australia, was modified in 2004 to specify that marriage is not between two people, but a <a href="http://www.comlaw.gov.au/Details/C2004A01361">man and a woman</a>. </p>
<p>This anomaly led to bizarre circumstances for Jan Morris (formerly James Morris) a renowned UK author. As Jan tells in her account of her gender transition (<a href="http://www.nybooks.com/books/imprints/classics/conundrum/">Conundrum</a>), James was married to Elizabeth. </p>
<p>When James transitioned to become Jan, he had to <a href="http://www.independent.co.uk/news/uk/this-britain/love-story-jan-morris--divorce-the-death-of-a-child-and-a-sex-change-but-still-together-839602.html">divorce Elizabeth</a> because two women couldn’t be married. Nonetheless they stayed together as a couple and, entered into a <a href="http://en.wikipedia.org/wiki/Civil_partnership">civil partnership</a>, when that became an option in the UK in 2008.</p>
<h2>A spurious dichotomy</h2>
<p>Most people working in this field have argued that the dichotomy male/female is spurious. They point out that there’s a continuum of biological features that are used to distinguish between male and female (more or less reliably), but that there’s a significant number of people (commonly called inter-sex) for whom differentiation is not straightforward. </p>
<p>What’s more, there are many people who don’t identify with the sex to which they were assigned at birth (trans-gender) at all. And even within “transgender”, there are some who clearly identify with their re-assigned binary, while others insist on the gender “trans” in its own right.</p>
<p>In 2007, some colleagues and I undertook <a href="http://www.glhv.org.au/files/Tranznation_Report.pdf">a national survey</a> of 253 trans-gender people from all states and territories in Australia and New Zealand. We found clear evidence of diverse views on how these people identify and describe themselves.</p>
<p>Half of respondents (50.6%) reported that they’d tried to amend public documentation to reflect their current gender identity and that this was crucial to their sense of personal and identity recognition. </p>
<p>The documents they’d tried to change included bank accounts; insurance details; birth certificate; car registration; naturalisation papers; citizenship certificates; passport; council rates; post office box details; credit cards; police security checks; driver’s licenses; superannuation; electoral details; tax file number; gun licenses; and university records.</p>
<h2>Buried in bureaucracy</h2>
<p>Experiences and outcomes varied, and even within the same organisation, there appeared to be different practices, leading to different experiences and degrees of difficulty and frustration. </p>
<p>The organisations they’d dealt with included electoral commissions; tax offices; financial institutions (banks, credit card companies, superannuation funds); public companies such as telecommunications providers; government departments; health insurance companies; local councils; the police; post offices; and transport departments.</p>
<p>Those who’d been able to successfully change their documentation experienced this as affirming their gender while the inability to change their documents naturally had consequences in participants’ lives. As one said:</p>
<blockquote>
<p>My bank has outright refused to stop addressing my mail as “Mr” until I can provide them with either an updated birth certificate or a letter from a surgeon saying I have undergone GRS (gender reassignment surgery).</p>
</blockquote>
<p>What came across most clearly was exactly this kind of irritation, frustration and distress, which resulted from dealing with the binary world of organisations (banks came in for particular criticism). Understandably, most people had a strong desire for recognition of who they were.</p>
<p>Norrie’s victory in the high court means the enforced adoption of either male or female as the only way of being, or “doing gender” in Australia will come under increasing scrutiny and challenge. </p>
<p>So well done, Norrie. With any luck, the rest of us will benefit from your persistence and avoid the unnecessary task of identifying our gender every day.</p>
<p><br></p>
<p><strong>Further reading</strong>
<br>
<a href="https://theconversation.com/norries-gender-win-brings-us-closer-to-knowing-who-we-are-25250">Norrie’s gender win brings us closer to knowing who we are</a></p><img src="https://counter.theconversation.com/content/25200/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marian Pitts does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Have you ever asked yourself why institutions continue to demand that we identify ourselves as male or female on every form? What difference does gender make to my bank account, to the tax office, or to…Marian Pitts, Emeritus Professor, Australian Research Centre in Sex, Health and Society, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.