22:57, November 26 544 0 theguardian.com

2017-11-26 22:57:03
The Smith bill is flawed as it is. Let's draw the line at any further exemptions

If any more discrimination exemptions make their way into marriage equality legislation, that legislation should be voted down and we should start again.

The bill introduced by Liberal senator Dean Smith already has more exemptions than most LGBTI Australians can tolerate. Anything more would make a joke of our collective effort to achieve full equality and would not be worth the right to marry.

Let’s start with how unpopular the Smith bill is and why.

A recent survey of 3,300 LGBTI Australians across all demographics showed around 70% opposition to those sections that allow discrimination by civil celebrants who nominate themselves as “religious” and by commercial services that are tied to religious organisations.

A majority said they would rather wait than accept marriage on these terms. The concerns many LGBTI people have about the Smith bill relate to both principle and strategy. The exemptions set bad precedents for allowing discrimination in the name of religion and they give new life to old prejudices about same-sex marriage being a threat to faith and freedom.

According to the above study, over 70% of LGBTI people believe the Smith exemptions will be used disproportionately against LGBTI people even though they don’t exclusively target us.

Black letter lawyers defend the Smith bill, saying nothing really changes because its exemptions echo existing exemption in the Marriage Act and other acts. But they fail to understand that when you duplicate bad laws you give them a new lease of life to cause renewed harm.

Strategically, the bill’s exemptions give too much away too early (who starts negotiations with their final position?), which may encourage the demand for further compromises, and it has never been clear how many votes are contingent on them. Religious exemptions were inserted in the Smith bill to prompt a Coalition free vote, but the postal survey served that purpose instead.

Post-survey, we should have started the legislative process with an entirely new bill, one that wasn’t compromised by unnecessary exemptions allowing discrimination in the name of religion.

There are many bills to choose from including bills previously introduced by Labor, Green and Liberal members, or just about any of the bills that achieved marriage equality overseas. But the Smith bill is the one on the table so the job now is to improve it. In the Senate debate I hope to see amendments that will tighten up the discrimination exemptions.

Unfortunately, what seems more likely is the Smith bill will be loaded down with yet more discrimination exemptions, making it unsupportable. Labor has a conscience vote on all amendments to the Smith bill so it’s conceivable enough conservative Catholic Labor senators may join with Liberal moderates and conservatives to vote up more exemptions. These could be the amendments proposed by George Brandis allowing all civil celebrants to discriminate and inserting a statement about an unqualified right to religious freedom.

It might even include further exemptions allowing all wedding businesses to refuse their services to same-sex couples, and all parents to withdraw their children from diversity programs.

The majority of LGBTI Australians who oppose these more radical exemptions and would rather wait is very high.

LGBTI community research from earlier this year, involving over 6,300 respondents across all demographics, showing close to 90% opposition to all the exemptions I just cited, with about a large majority willing to wait for better legislation. The broader community isn’t far behind. A recent Galaxy poll showed 78% of voters interpret a postal survey yes vote to mean same-sex married couples should be treated the same, including almost all yes voters and 43% of no voters.

The underlying reason for these results is the aspiration for equality. The comments left by participants in the above LGBTI community survey are summed up by this one:

“Marriage equality is about equality. Allowing refusal of service entrenches discrimination and prejudice, and undermines the whole point of having marriage equality.”

But a further concern of mine is that such amendments will legally entrench the poisonous American idea that any old prejudice hidden behind a Bible passage should bestow the legal privilege to disadvantage other people. In one stroke it will press-gang Australia into the latest American religious liberty culture war and take us back to a time when shop owners stuck signs in their windows declaring “No Asians”, “No Blacks” and “Ladies’ bar around the back”.

If that sounds over-egged, consider that the head of the Australian Christian Lobby, Lyle Shelton, recently agreed that Muslim business people should be able to refuse their services to Jews.

The real slippery slope is the dismantling of Australia’s anti-discrimination laws so that anyone with a religiously-linked or conscientiously-held prejudice has a special legal privilege to harm others. If any further exemptions are inserted into the Smith bill a tough decision will need to be made. Should the Greens, Labor and the Senate crossbenchers join with Coalition conservatives to vote down the entire bill? I believe they should.

Those of a compromising disposition will say that half a loaf is better than none to which I say any law that perpetuates discrimination and stigma is no loaf at all. They will say this chance might not come again for a long time to which I say the arc of history and the will of the people are on our side.

No reform in Australian history has a stronger mandate than this one. The momentum is not going away.

They will say that Labor will repeal the nastier exemptions when it wins government. Exactly that promise has been made to LGBTI Australians a hundred times before and it has almost always been broken. In this case it is sure to be broken because there will be no political will to revisit marriage equality for a decade at least.

They will say opposing further exemptions is just another way to slow down an urgent reform, and/or take the glory away from the Liberals. That’s certainly not my motivation. I have old and ill friends in same-sex relationships who can’t wait much longer to marry, but by the same token they don’t want the reform compromised just for them. I believe it is important for moderates in the Liberal party to have a record of reform in their ongoing struggle for the soul of their party.

No, my motivation runs deeper than any of that. When I left Australian Marriage Equality to campaign more vigorously against a marriage equality plebiscite I cited a young gay man who killed himself during the angry, hateful debate on decriminalisation in Tasmania in the 1990s, and how I needed to do all I could to stop that happening again.

Now, my mind goes to some young gay man in the near future who is humiliated and embarrassed when the celebrant who married his parents refuses to deal with him because he is marrying another man. He and his outraged family will assume such a refusal is illegal until they discover our parliament explicitly allowed it as recently as 2017.

Perhaps my hypothetical young gay man will overlook the discrimination, or perhaps he will start a campaign to prevent it happening to anyone else. Either way he should not have to endure this injustice just because our parliament was too weak to do the right thing.

It is no longer enough for Labor, Green and other politicians to say they oppose any further religious exemptions. They must draw the line by stating publicly the point at which a marriage bill does more harm than good and should be entirely voted down. I draw the line at anything more than the already flawed Smith bill. I believe the overwhelming majority of LGBTI people do too.

Now it’s over to politicians to decide where they will draw the line. We can only hope they draw it on the right side of dignity and equality.

  • Rodney Croome in a long-time marriage equality advocate