Why there should be no room in the law for celebrants to discriminate on same-sex marriage

This article was first published on 16 November 2017 in The Conversation. You can hear an interview with Becky on this issue here and here.

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Celebrants should not be free to discriminate against couples who ask them to perform a marriage ceremony.  Source: CityofStPete, Creative Commons

The process of legislating for marriage equality is underway. Marriage celebrants are looking forward to Australia’s busiest-ever wedding season. However, with the proposed laws now on the table, not all marriages will be equal.

The private member’s bill sponsored by Liberal Dean Smith is being debated today in the Senate. Attorney-General George Brandis has said he wants to amend the bill to extend religious protections to civil celebrants.

If it goes through, the amendment would permit civil celebrants to refuse to conduct a marriage ceremony because of their conscientious or religious beliefs (as another marriage amendment bill did earlier this year).

Permitting non-religious, civil marriage celebrants to discriminate is a bad idea. This goes far beyond protecting religious freedom.

My research into Australia’s marriage laws and civil marriage celebrants leads me to believe that Brandis’ proposed changes will undermine Australia’s flourishing civil marriage system by sanctioning discrimination against LGTBIQ clients. They will weaken marriage equality and will permit humiliating, unnecessary discrimination.

Providing the right to refuse to solemnise marriages to civil marriage celebrants undermines the aims and nature of Australia’s world-leading civil marriage celebrant program. It also compromises Australia’s long-established pluralistic system of marriage, as inherited from England.

Unique weddings and quirky celebrants: Australia’s contribution to the world

To understand the marriage equality law, it is helpful to know a little about the history of marriage in Australia.

Until 1973, when Australia’s world-first civil celebrant program was created, most civil wedding ceremonies were dry, brief and formal procedures conducted by state officials in registry offices.


Read more: As Australians say ‘yes’ to marriage equality, the legal stoush over human rights takes centre stage


The civil celebrancy program was initially set up by the Whitlam-era attorney-general, Lionel Murphy. It went under the publicity radar, unlike the no-fault divorce reforms debated and passed by the federal parliament at the same time.

According to one of Australia’s first civil celebrants, Dally Messenger, the civil celebrant program allowed for a civil alternative to religious marriage ceremonies that was dignified. Marrying couples could choose a ceremony at a place with symbols, dress and a celebrant consistent with their beliefs.

Murphy initially appointed just a small group of civil marriage celebrants in 1973 and 1974. Today, there are around 9,000 civil marriage celebrants registered in Australia. The civil celebrancy program, alongside the secularisation of Australian society, has made civil marriage ceremonies attractive and accessible to brides and grooms.

In other words, before Elvis’ Little Wedding Chapel in Vegas, we had Australia.

It is easy to find celebrants across Australia advertising services for garden weddings, weddings at family homes, beach weddings, skydiving weddings, underwater weddings, helicopter weddings and almost nude weddings (the celebrant said their nudity showed “there was nothing you wouldn’t do to be together”).

Allowing civil marriage celebrants to refuse to conduct a marriage ceremony because of their conscientious or religious beliefs against the marriage of partners of the same sex would undermine a key aim of the civil celebrancy program – to allow for a non-humiliating alternative to religious marriage ceremonies.

It is degrading for anyone to be told that they will not be able to be married by a celebrant because of the celebrant’s personal beliefs about them. The law should not authorise this humiliation.

Religious or civil wedding? The value of choice

The proposed exemption for civil marriage celebrants also undermines the long tradition of a pluralistic system of marriage law in Australia.

Since colonial times, Australians have been able to choose a religious ceremony or a non-religious civil ceremony. Both will be validly recognised as a marriage under law.

This system was inherited from England, where both religious (Church of England, Jewish and Quaker marriages) and civil marriages have been recognised since 1836.

Today in Australia, religious marriages must be conducted by law in accordance with the rites and practices of a broad range of religions. Civil marriages must be performed in accordance with the Marriage Act, and are far more heavily regulated by law than religious marriages.


Read more: The marriage equality survey is won, but the battle against discrimination continues


Most Australians choose to have a non-religious wedding. For nearly two decades, civil marriage has been overwhelmingly the most popular way to be married in Australia. In 2015, almost 75% of all marriages were performed by a civil celebrant rather than a minister of religion.

Over the last half of the 20th century, there was a major shift towards civil weddings. In 1959, just 11.4% of marriages were civil marriages. Civil marriages have outnumbered religious marriages in Australia since 1999.

Providing civil marriage celebrants with the right to refuse to marry a couple based upon their sexuality or the religious beliefs of the celebrant brings an element of religiosity to civil marriage. It reverses the historical separation of civil and religious marriage in England and Australia that has been in place since 1836.

The exemption will limit the ability of Australians to opt into a wedding that is not governed by religious values, defying the trend towards civil marriage.

Discrimination on the basis of sexuality or gender has no place in contemporary Australian law and society. If we are to achieve true marriage equality, then prejudice cannot be permitted in the delivery of secular wedding services. Our anti-discrimination laws exist to ensure equal treatment of all Australians, regardless of personal attributes.

Rosemary Hunter on the Scarlet Letter

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We have a new episode of the Scarlet Letter out, and it’s a great one. A couple of weeks ago, the Feminist Legal Studies group put on our first official event – a seminar by Professor Rosemary Hunter of Queen Mary University in London.

In this special episode of the Scarlet Letter, we present Part 1 of the seminar, in which Professor Hunter discusses the Feminist Judgements Project and her research on the role of feminism in the judicial process.

Part 2 of Professor Hunter’s seminar will follow on 15 December.

Have a listen to Part 1 below, and don’t forget to subscribe to the Scarlet Letter so you never miss an episode:

http://directory.libsyn.com/episode/index/show/scarletletter/id/5943268

When it comes to redress for child sexual abuse, all victims should be equal

This piece was originally published in The Conversation on 1 November 2017.  An associated blog post regarding the evidence the authors presented to the Victorian Law Reform Commission can be found here.

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The redress scheme cannot be a truly ‘just response’ if it says some kinds of victims simply don’t count.  Photo Source: Torbak Hopper (Creative Commons)

 

Kate Seear, Monash University and Suzanne Fraser, Curtin University

The federal government last week announced details for its long-awaited redress scheme for victims of institutional child sex abuse. The proposed scheme is a response to recommendations from the ongoing Royal Commission into Institutional Responses to Child Sexual Abuse.

Controversially, the government proposes to exclude from redress anyone convicted of sex offences, and those sentenced to prison terms of five years or more for crimes such as serious drug, homicide or fraud offences.

This proposal is profoundly flawed and a step backward. It is made at a time when institutions should be atoning for past wrongs without arbitrary exceptions.

Crimes compensation schemes across Australia

All Australian states and territories have victims of crime compensation schemes. They provide victims of certain crimes with modest compensation to cover their expenses, or payments to recognise wrongs perpetrated against them.

Although state and territory schemes are typically funded by the state, the Commonwealth scheme anticipates that “responsible entities” – such as churches – will pay.

All schemes include criteria detailing who is eligible for support and who is not. People who “collude” with the perpetrator to rort the scheme are excluded. Victoria’s scheme contains an additional, broad provision requiring its tribunal to consider whether victims’ “character, behaviour or attitude”, past or present, should exclude them. The idea of excluding certain kinds of victims from support is is thus not unique.

However, all exclusion criteria warrant scrutiny, as they raise questions about victimhood, the selective recognition of harm, and social and community responsibility.

The Commonwealth proposal is especially in need of scrutiny, because of its historic significance and symbolic role, and also because it involves more specific criteria for excluding victims than other schemes.

The problem with saying only some victims are worthy of sympathy

We have studied how the Victorian law is interpreted and applied. The Victorian provision differs from the proposed Commonwealth one, but what we found offers clues about the significance of the Commonwealth exclusions.

Victoria’s “character” test allows highly partial moral and political judgements about who may be deemed “worthy” of public sympathy and support. For example, people with a history of illicit drug use or addiction can be excluded on the basis that they have a criminal history.

On occasion, victims with a drug-using history do receive compensation, but this can depend on whether tribunal members interpret the crime they have experienced as an explanation or “excuse” for their drug use or addiction. Here, being a victim of child sexual abuse or family violence is considered relevant.

While an experience of crime might lead to drug use for some, this is not the case for others. The nature of addiction is heavily contested, as is the relationship between drug use and past suffering or trauma.

So, there are practical and ethical problems associated with making decisions in legal contexts about why someone might have begun consuming illicit drugs or developed drug problems, and whether that should exclude them from compensation.

Notably, these evaluations can disproportionately affect women, since women are more often victims of family violence, sexual assault and sexual abuse. Such scrutiny may also retraumatise victims and compound, rather than alleviate, their suffering.

As it happens, the Victorian Law Reform Commission is currently undertaking a review of the Victorian Victims of Crime Assistance Act. We recently told the commission that the existing approach is flawed.

Although it might be politically popular – and less expensive – to separate applicants into the categories of “deserving” and “undeserving” victims, it is morally wrong to do so.

We acknowledge that some taxpayers may not tolerate money being given to people with criminal records. Why, they might ask, compensate criminals for wrongs done to them, when they themselves don’t respect the law?

At least part of the answer is that as a society we must acknowledge the seriousness of the impact on individuals of the kinds of crimes sometimes before the Victorian tribunal. The same holds for the royal commission.

In introducing the bill to parliament, Social Services Minister Christian Porter described it as a “just response”:

Children placed in the trust of our society’s institutions were some of the most vulnerable members in our community and the fact that must be confronted is that many children were sexually abused by the very people charged with their care and protection. No child should ever experience what we now know occurred. That is why it is time for all institutions and all governments to take responsibility for what has happened.

This statement acknowledges that children experienced serious harms in contexts facilitated and overseen by the nation. It insists that the community must accept and respond constructively to this knowledge. Taking a careful and informed approach to the meaning of criminal acts such as illicit drug consumption is part of this obligation.

Importantly, those excluded by the Commonwealth scheme will have been convicted and punished in the past. Should someone who suffered harms as a child forfeit the right to have those wrongs acknowledged? Would this amount to punishing them again?

Justice should apply to everyone

We would argue that a person’s right to justice, to the extent that this might be available through compensatory schemes, should not be tied to past activities.

As justice theorist Sara Ahmed argues we must:

… challenge the view that justice is about […] being the right kind of subject. Justice is not about ‘good character’. Not only does this model work to conceal the power relations at stake in defining what is good-in-itself, but it also works to individuate, personalise and privatise the social relation of (in)justice.

As the royal commission has exposed beyond question, institutional responses to child sexual abuse have often been profoundly irresponsible, and potentially criminal in themselves.

The ConversationThe redress scheme must send the strongest possible message to those responsible. It cannot be a truly “just response” if it says some kinds of victims simply don’t count.

Kate Seear, Academic Director of Springvale Monash Legal Service & Senior Lecturer in Law, Monash University and Suzanne Fraser, Professor, National Drug Research Institute, Curtin University

This article was originally published on The Conversation. Read the original article.