Last year's debate over whether to legalise same-sex marriage revolved around the means for resolving that question. Should Parliament have a free vote, or should public opinion first be tested through a plebiscite?
But same-sex marriage raises fundamental questions of law and religious freedom. The submissions to the current Senate Select Committee on the Marriage Amendment (Same-Sex Marriage) Bill grapple with these issues: if same-sex marriage becomes law, how do we enable gay and lesbian Australians to enjoy their new-found equality? To what extent should we protect people with religious objections to same-sex marriage?
Two issues can be dealt with shortly. First, ministers of religion must be free to solemnise marriages in accordance with their beliefs. Any other position would impose a religious observance, or prohibit the free exercise of religion, contrary to section 116 of the Commonwealth Constitution.
Second, there is no basis for extending a similar concession to marriage celebrants. Celebrants are civil servants. They voluntarily undertake a secular, public function: to solemnise marriages in accordance with the Marriage Act 1961 (Cth).
The case of commercial service providers is more complex. Anti-discrimination law generally bars people from refusing to provide goods and services on the grounds of sex or sexual orientation. But many argue that caterers, florists, reception centre owners and so on should be free to refuse to participate in same-sex weddings, on the basis of their religious beliefs ('the commercial exemption').
The case for the commercial exemption is unconvincing.
First, this particular exemption lacks a principled basis. In a liberal democracy, freedom of thought is absolute. But freedom to act in accordance with one's conscience is constrained by laws of general application. As Justice Scalia noted in Employment Division v Smith, the alternative would be 'a system in which each conscience is a law unto itself'.
The commercial exemption privileges one form of conscience: religious conscience. It provides no protection for a person with a deeply held but secular hostility to same-sex couples. It also only excuses discrimination on certain grounds, namely sex and sexual orientation.
"Advocates of the commercial exemption often labour under the misconception that a same-sex couple denied services is simply able to go elsewhere. This ignores the fundamental, dignitary harm caused by discrimination."
Religion has been used historically to justify practices like slavery and segregation. But we now accept that religious beliefs cannot justify discrimination on the grounds of race, age or disability. Is there a principled basis for exempting discrimination against gay and lesbian Australians (as opposed to people with other attributes), motivated by religious beliefs (as opposed to secular convictions)?
Second, it is unclear how a person breaches a religious prohibition on homosexual sex by providing a same-sex couple with goods or services. Take, for example, a Christian hotelier who accommodates a same-sex couple. In a recent case, after hearing extensive theological evidence, the Victorian Civil and Administrative Tribunal found that Christianity's core doctrines and creeds relate to 'the nature of God, the nature of Jesus, and his interaction with the world', rather than opposition to homosexuality.
But in any case, the hotelier is not engaging in homosexual sex. Nor has he facilitated the couple's conduct in a manner that is blameworthy. Christian new natural law theory provides a sophisticated framework for resolving questions of complicity in another's wrongdoing. The hotelier's act is morally permissible in itself. He is not intending that the couple have sex, or causing it as a necessary means to his own end. His act will not lead to scandal, in the sense that others would infer that he endorses homosexual sex. Irrespective of the hotelier's decision, the couple will continue their relationship. The hotelier's connection to the couple's conduct is too tenuous and contingent to ground a charge of moral culpability.
It might be argued that what matters is merely the hotelier's subjective sense of his religious obligations. But divorced from any basis in religious doctrine and ethics, the commercial exemption begins to collapse into a broad freedom to act in accordance with one's conscience.
Finally, advocates of the commercial exemption often labour under several misconceptions. The first is that a same-sex couple denied services is simply able to go elsewhere. This ignores the fundamental, dignitary harm caused by discrimination. Patricia Williams, an African American academic, vividly describes her experience of being refused entry into a New York store:
'There was almost nothing I could do, short of physically intruding upon him, that would humiliate him the way he humiliated me. No words, no gestures, no prejudices of my own would make a bit of difference to him. His refusal to let me into the store was an outward manifestation of his never having let someone like me into the realm of his reality. He had no connection, no compassion, no remorse, no reference to me, and no desire to acknowledge me even at the estranged level of arm's length transactor.'
The second misconception is that anti-discrimination law is a modern incursion on an otherwise unbounded freedom to contract, and to exercise property rights, in accordance with one's conscience. In its submission to the Senate Select Committee, FamilyVoice states that freedom of religion 'should not be defined by the crumbs left over by newly invented pseudo-rights'. Without a broad commercial exemption, the government will be 'sanctioning a type of servitude or forced labour'.
But the common law has long circumscribed freedom of contract and property rights in order to protect people from arbitrary discrimination. For centuries, courts have required businesses that hold themselves out as open to the public to serve all comers without discrimination. As Joseph Singer convincingly argues, businesses 'constitute a form of property use that injects the property into market relations — a sphere of social life to which everyone should have access'. This tradition carries on through modern anti-discrimination law.
The debate over same-sex marriage will reignite, in this term of government or the next. We will then need to confront and resolve these important tensions between equality and religious freedom. We should strictly scrutinise claims for exemption, lest they undermine the promise of marriage equality.
Jack Maxwell has degrees in law and philosophy from the University of Melbourne. He blogs occasionally at Four Sciences. All views are his own.