The result is in. The postal ballot on marriage returned a “Yes” vote, 61.6 per cent in favour, with 38.4 per cent opposed. Is this the end of the matter? Certainly the Australian people have spoken and that is to be respected. But it is only the beginning.
Now a way forward has to be found that respects the rights of all Australians. The admirable campaign by the Coalition for Marriage leading the “No” campaign has engaged thousands and thousands of people who have understood that changing the marriage law has huge consequences and will affect everyone. They now need to understand and engage in the ongoing culture war around the nature of human sexual identity itself – whether human sexual identity is determined by biology or by gender-fluid ideology.
Biology is objective and unequivocal. Gender-fluid ideology holds that gender is how you feel and may be different from your biological sex and can change. Gender-fluid ideology is subjective, based on how a person feels, and equivocal. These are diametrically opposed views. No matter how difficult it is we have to get our heads around this.
In a democracy, how can the rights of all citizens be protected when there are two diametrically opposed views of a fundamental nature that affect the rights and liabilities of those who hold those respective views?
Following the announcement of the ballot Victorian Senator James Patterson released a draft Marriage Amendment (Definitions and Protection of Freedoms) Bill (PoFs Bill) to be taken to the Coalition party room for consideration. However, before that could happen, West Australian Senator Dean Smith moved a cross-party bill (Smith Bill), which he had released earlier this year.
The PoFs Bill proposed an all-inclusive redefinition of marriage and provisions to protect the freedoms of those who hold the view that marriage is the union of a man and a woman.
The PoFs Bill proposes marriage be redefined as “the union of a man and a woman or the union of any two people”. This would preserve marriage as the union of a man and a woman for those who are of this view while also extending the definition to the union of “any two people”.
In contrast the Smith Bill only proposes marriage be redefined to mean the union of “any two people”.
The PoFs Bill seeks to meet Australia’s obligations under the International Covenant on Civil and Political Rights (ICCPR Article 18.1) to protect freedom of religion and belief.
It protects individuals who for deeply held reasons decline to be involved or provide their services for the celebration of marriages that are not between a man and a woman, extending the protections already provided for religious bodies and religious marriage celebrants to individuals who provide services for weddings (such as flowers, photography, catering).
It provides that any person or entity has the right to freedom of thought, conscience, religion or belief in relation to holding or lawfully expressing their views or beliefs about marriage. It protects charities from being stripped of their charitable status because of their views or beliefs about marriage. It protects individuals and entities from being treated unfavourably or subjected to any detriment, disadvantage, obligation or sanction or denial of any benefit by a public authority because of their views or beliefs about marriage.
The Smith Bill only proposes very narrow religious protections for religious marriage celebrants to be allowed to decline to solemnise marriages other than those between a man and a woman.
Australia also has an obligation under the ICCPR (Article 18.4) to recognise and protect the right of parents “to ensure the religious and moral education of their children in conformity with their own convictions”.
The PoFs Bill seeks to provide that parents can request that their children be released from any class where material to be taught is not consistent with their beliefs. This would protect parents’ right to decide on the education they want for their children when radical sex education or relationships programs are taught in schools. The Smith Bill has no provision to meet this obligation.
If the Smith Bill is proceeded with, it must be amended to include wider protections such as those proposed by the PoFs Bill.
Redefining marriage as only the union of “any two people” would mean any two people regardless of their gender identity, and make gender-fluid marriage a protected attribute under the federal Sex Discrimination Act. Without protections, to express or teach the view that it is different from or not the same as the union of a man and a woman would risk complaint of discrimination.
This would have far reaching consequences in every area of society and affect everyone – in the imposition of gender policies in work places, in sexuality and relationships curricula in schools, in businesses providing goods and services and/or accommodation for weddings, in the re-education that would be required to de-gender language.
Freedom to disagree
Any bill to amend the marriage law as a result of the “Yes” vote should provide protections for all Australians and must not force either view upon those who have a deeply held opposite view. The way to move forward in a free society like Australia is to find common ground that those who hold either view can accept and live with.
Even those who are of the view that gender is fluid and may differ from biological sex can surely agree that biological sex is an objective fact that can be ascertained to the satisfaction of everyone. They may also be of the view that gender, how one feels, what gender one identifies with, is more important than biological sex. They are free to do so. But those of the opposite view must be free to disagree.