Reassuring Fr Frank Brennan about same sex marriage

In a recent contribution to the ABC Religion and Ethics portal, the Jesuit priest and law professor Father Frank Brennan indicated that he would support legal recognition of same-sex marriage if he received four assurances. Those assurances are:

• The assurance that religious groups could continue to order their religious and church affairs consistent with their teaching on marriage.
• The assurance that adoption authorities could always make decisions in the best interests of the child.
• The assurance that state authorised/funded assisted reproduction services would not be expanded to allow the creation of a child without just one known biological mother and just one known biological father.
• The assurance that those who had religious objections to same-sex marriage would not be required by law to violate their own consciences in the performance of professional or artistic services (as distinct from the simple sale of goods or provision of other services) when that performance is usually enhanced by the person believing in the relationship that is being celebrated or sustained.

In this post, as a constitutional law academic and supporter of marriage equality, I want to respond to Father Brennan's requests.

The assurance that religious groups could continue to order their religious and church affairs consistent with their teaching on marriage.

Put simply, the Federal Parliament has no power to legislate in respect of how religious groups order their religious and church affairs. Section 116 of the Constitution says: 'The Commonwealth shall not make any law … for prohibiting the free exercise of religion'.

If it is contrary to Catholic teaching for persons in same sex relationships to receive the sacrament, then federal law cannot force the Catholic Church to give the sacrament to those persons. If it is contrary to Catholic teaching for persons in same sex relationships to participate in parish committees, then federal law cannot force the Church to allow such persons to participate.

With common sense exceptions (such as requirements to comply with zoning laws, building safety codes and anti-money laundering laws), religious groups can order their internal religious affairs as they see fit.

Father Brennan can be assured that religious groups could continue to order their religious and church affairs consistent with their teaching on marriage if Australia legalised same sex marriage.

The assurance that adoption authorities could always make decisions in the best interests of the child

The rules governing adoption are a matter of State law rather than federal law. The rules vary from State to State. However, adoption has nothing to do with same sex marriage. In some States, unmarried same sex couples may adopt a child. If same sex marriage is recognised, then in those States married same sex couples would be able to adopt a child.

Issues relating to adoption by LGBTI individuals and couples were recently canvassed in the Australian Human Rights Commission's Resilient Individuals: Sexual Orientation, Gender Identity and Intersex Rights report.

Father Brennan seems to suggest that religious beliefs about the propriety of various human relationships are relevant to what is in the best interests of a child. Just because a particular religious group happens to believe that, other things being equal, being raised by a same sex couple is not in the best interests of a child does not mean that, as a matter of fact, being raised by a same sex couple is not the best interests of a child.