Law Council Says ‘Religious Exemptions’ In Marriage Bill Go Too Far


The peak body for the legal profession has said that controversial “religious exemptions” in the government’s draft marriage equality bill go too far and should be removed.

A draft marriage equality bill was released by the Government last year as part of its failed plebiscite on the issue, and the bill is before a Senate inquiry that is looking at proposed exemptions “for ministers of religion, marriage celebrants and religious bodies and organisations to refuse to conduct or solemnise marriages.”

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One such clause in the draft bill would allow civil celebrants to refuse to solemnise a marriage if the refusal “is because the marriage is not the union of a man and a woman” or is based on a “conscientious” belief that is not defined in the bill.

Another proposes that “religious bodies” and “religious organisations” be permitted to specifically refuse to provide facilities, goods or services to LGBTI couples for weddings.

Law Council of Australia President Fiona McLeod SC said in a statement the legal sector supported freedom of religion, and considers it reasonable to allow ministers of religion to conduct religious marriage ceremonies in accordance with the tenets and doctrines of their religion.

“These [religious freedom] protections already exist and are appropriate. But extending this exemption to civil celebrants discriminates against same-sex couples without any proper basis,” she said.

“The marriage ceremonies that civil celebrants perform are secular, not religious. They do not merit the same protection of freedom of religion and have no other proper basis for exemption.”

The draft bill makes clear that the controversial provisions “[do] not limit the grounds on which” a marriage celebrant or religious minister may refuse to solemnise a marriage.

The legal profession also objects to the proposed exemption for ‘religious bodies and organisations’ in the provision of facilities, goods or services for the purpose of solemnisation of a same-sex marriage, Ms McLeod said in the statement.

“This proposed exemption would erode fundamental principles of non-discrimination and represent a disproportionate extension of existing exemptions to discrimination laws for ‘religious bodies’ in defined and limited circumstances,” she said.

Under international case law, protections against discrimination have taken priority over freedom of religious expression in the provision of secular and commercial services, she said.

“An organisation not established for religious purposes, but connected with a religious body, which provides commercial services incidental to the solemnisation of marriage – such as, photographers and caterers – should not be able to rely on the exemptions to unlawfully discriminate against couples on the grounds of sexual orientation or gender identity,” she said.

“There is an important distinction between freedom of religion and the freedom to express one’s religious beliefs.

“The freedom to express one’s religious beliefs must be carefully balanced where it intrudes upon other rights, such as the fundamental right to be free from discrimination on the grounds of sexual orientation or gender identity.”

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The Law Council said both provisions have “no proper basis in human rights law and should be removed,” Ms McLeod said.

Earlier this month, an overwhelming majority of LGBTI people who were surveyed by groups PFLAG and Just.equal rejected the controversial provisions in the draft bill.

The Law Council of Australia was one group who addressed the inquiry in Melbourne on Monday, before the hearings moved to Sydney on Tuesday and Canberra on Wednesday. The Law Council’s full submission to the inquiry is available on the committee’s website.

The Senate committee is due to report by February 13.