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.

Some faith groups have no problem with homosexuality and their clergy desire to celebrate same sex weddings. Some faith groups have religious objections to homosexuality and object to the very idea of same sex marriage. Those different religious beliefs do not determine what is in the best interests of the child.

If Australia legally recognised same sex marriage, there is no reason why State adoption law would necessarily be changed at all.

Father Brennan does not need to receive this assurance, because adoption has nothing to do with same sex marriage.

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 rules governing assisted reproduction services are also a matter of State law. If same sex marriage were legally recognised, there is no reason why State assisted reproduction laws would necessarily be changed at all. In any case, as the Australian Human Rights Commission's Resilient Individuals report points out every State, except for South Australia already allows same sex couples access to assisted reproduction services.

As things stand today, a child may be created using sperm from an anonymous sperm donor. In other words, the law already allows the creation of a child without just one known biological mother and just one known biological father. In this case, the biological father is unknown.

The assurance Father Brennan seeks therefore has nothing to do with recognising same sex marriage.

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

It is not entirely clear what sorts of professional or artistic services Father Brennan is referring to because the provision of all services would seem to fall within Father Brennan's 'provision of other services' exception. Given that Father Brennan discusses aged care facilities, I will take that as an example.

State and Federal anti-discrimination laws already prohibit discrimination against same sex couples in the provision of services (with some limited exemptions). For example, Part 4C of the NSW Anti-Discrimination Act 1977makes it unlawful to discriminate against a person in the provision of goods or services or the provision of accommodation on the ground of the person's homosexuality.

Part II of the federal Sex Discrimination Act 1984 also makes it unlawful to discriminate against a person in the provision of goods or services or the provision of accommodation on the ground of a person's sexual orientation. Section 37 states that aged care facilities run by religious groups are not exempt from this prohibition against discrimination.

In other words, what Father Brennan seems to fear as a potential consequence of recognising same sex marriage is already the law right now. Recognising same sex marriage therefore has nothing to do with the issue.

Conclusion

It is perfectly proper for the Marriage Act to continue to allow, as it already does, ministers of religion to decline to celebrate a marriage that does not conform to the minister's religious teachings (whether that is because of the religious faith of the spouses to be, the fact that one of them may be divorced, because they are of the same sex or for some other reason). Some ministers of religion, of course, would be more than happy to celebrate a same sex marriage. Those ministers of religion should not be denied the ability to do so because of the religious beliefs of others.

Same sex marriage is an issue where we need to keep the idea of the separation of church and state firmly in mind. No one should be denied the ability to marry the person they love simply because of the religious beliefs of others. And if you are not an LGBTI person, your rights and obligations under the law will be exactly the same as they are today if Australia recognises same sex marriage.

Luke Beck is a constitutional law academic at Western Sydney University