Marriage equality - allowing independent civil celebrants to discriminate?

The most recent developments on Marriage Equality as most would know are:

  • The planned Plebiscite on Marriage Equality by the AEC did not proceed*. However a voluntary Postal Survey via the Auatralian Bureau of Statistics did replace this.

  • Senator Deam Smith 300The Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill, that was prepared for the Plebiscite, was referred to a Senate Select Committee to inquire into the nature of this Bill and its consequences should it be enacted.

    If this Bill proceeds unaltered, then it would have the similar effect as the Freedom to Marriage Bill 2014 as regards that fact that 99% of celebrants would not be required to uphold the civil law definition of marriage.

  • The Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill resolved that it would only accept submissions strictly addressing its terms of reference, with a particular focus on the following areas:

    • the proposed exemptions in the Exposure Draft for ministers of religion, marriage celebrants and religious bodies and organisations to refuse to conduct or solemnise marriages, and the extent to which those exemptions prevent encroachment upon religious freedoms; 
    • the nature and effect of the proposed amendment to the Sex Discrimination Act 1984;
    • whether there should be any consequential amendments to this bill, or any other Act, and, if so, the nature and effect of those consequential amendments.

  • CCN supported the submission of the peak celebrant body, the Coalition of Celebrant Associations (CoCA) Inc to the Select Committee. 

    This submission recommended:

    • no exemptions for independent Subdivision C civil celebrants.

    • only if the government decided to grant exemptions for Subdivision C civil celebrants, that such exemptions be for

      • only current Subdivision C independent civil celebrants, not new celebrants, and
      • only upon application to the Commonwealth Registrar for an exemption (as only 3% of the 2015 CoCA Survey of Commonwealth celebrants indicated they would resign if the definition of marriage were changed to include same sex couples).
      • the defintion of marriage be between two adults 
  • For more information on the important work of the Select Committee, including the speeches presented in parliament, visit here.

* September 2017

The Coalition Government has arranged to send out an Australian Marriage Law Postal Survey using the ABS. Read more about this here.

February 2017

The information below was compiled in March 2015 

Some MPs and Senators continue to raise concerns about individual conscience issues for civil as well as religious celebrants. Most of these comments are based upon mis-information about Australia's Marriage Act. The Marriage Act 1961 Section 47 already exempts religious celebrants from having to marry any couple upon any grounds, not just the state definition of marriage.

Senator Leyonhjelm's Freedom to Marry Bill 2014 is the only one proposed so far that extended this exemption to all independent religious celebrants.

Proposed Section 47 in the Freedom to Marriage Bill 2014 states:

47 Authorised celebrants (other than certain State and Territory officers#) not bound to solemnise marriage etc.

Subject to subsection 39(4), nothing in this Part:
(a) imposes an obligation on an authorised celebrant, to solemnise any marriage; or
(b) prevents such an authorised celebrant from making it a condition of his or her solemnising a marriage that:

(i) longer notice of intention to marry than that required by this Act is given; or
(ii) requirements additional to those provided by this Act are observed.

# Currently at 8 September 2016, there are

  • 287  state & territory marriage officers at 
  • 8032 Commonwealth authorised independent civil marriage celebrants, and
  • 568 Commonwealth authorised independent religious marriage celebrants, and
  • 23,103 Recognised Religious marriage celebrant 
This amendment of the Marriage Act would give 99% (31703 of 31,990) marriage celebrants the permission not to uphold the law and the primary function they are authorised to do ie to discriminate on any grounds.

Consequences of allowing individual conscience under 'civil' law

This is not a simple matter, because the Marriage Act 1961 is complex and discriminatory already.

1. Increased discrimination against heterosexual couples

This proposed amendment to Section 47 would make it lawful for Commonwealth independent Civil Marriage Celebrants to not only discriminate on the basis of gender/ sex/ sexual orientation, but also upon prior marital status, religion, race, age or any other basis they so choose.

So the effect of  Senator Leyonhjelm's Freedom to Marry Bill 2014, by making a minor amendment rather than a specific amendment to is to grant almost all (98%) marriage celebrants the right to Discriminate on any grounds  - previous marriages, race, religion etc - against any couple - heterosexual or same sex couples.

For example: a civil celebrant could decide to refuse a heterosexual couple because:
  • one of the parties to the marriage had been previously married four (plus) time thus not committed to long-term relationships which marriage is intended to be

  • one or both parties to the marriage had children in previous defacto relationships and marriages and thus morally not committed to monogamous long-term relationships

  • of difference in age or race on grounds e.g. the civil celebrant  refuses to marry a 58-year-old Australian male to an 18-year-old Asian female.

  • of religious discrimination (e.g. one party was Greek Orthodox and the other Muslim) e.g. the civil celebrant  believes the marriage is doomed because of religious difference, or thinks their own religion is the only "true" one 

  • one of the parties to the marriage had been previous married to a person of the same sex.  Here the civil celebrant could then make a value judgement that the person was not inherently same sex attracted, thus not truly heterosexual and therefore explain to the couple that they did not wish to proceed with marrying the couple on these grounds,

2. Having a law that 99% of the those authorised under that law are allowed not to apply the law?

This Leyonhjelm proposed change would grant 31,979 celebrants or 99 % of all marriage celebrants the right to discriminate upon any grounds they so choose, and not uphold the law as regards the definition of Marriage, if Australia's legislation made same sex marriage lawful!

Civil Celebrations Network Incorporated considers that Section 47 already grants sufficient powers to religious celebrants whether Recognised Religious Celebrants (Subdivision A) or independent religious marriage celebrants (Subdivision C).

3. Other ways to uphold respect for personal conscience or religious belief without compromising civil law

Rather than increase the grounds upon which ALL marriage celebrants (except State Officers) can discriminate against couples, there are other ways to uphold respect for personal conscience or religious belief without compromising civil law as regards same sex marriage.

Current independent civil celebrants can apply to transfer to the Commonwealth religious celebrant category if personal conscience is an issue. The peak body, Coalition of Celebrant Associations (CoCA) Inc. conducted a survey of Commonwealth Marriage Celebrants, which showed that only 3% would need to resign on the basis on person conscience.
Last modified on Tuesday, 07 November 2017 11:01