Marriage Amendment (Marriage Equality) Bill 2015 compatibility with international human rights instruments to which Australia is signatory (Response to claims in the Explanatory Memorandum).
International Covenant on Civil and Political Rights (ICCPR) – Article 18
The Bill only provides an exemption for ministers of religion. Any other celebrant is not able to exercise their freedom of conscience if they believe that marriage is inherently gender-diverse.
In addition, same-sex marriage laws have enabled hundreds of intrusions into this most basic freedom: religion, conscience, belief and thought.
The Barronelle Stutzman story is a classic example. Barronelle is a Washington florist. She served her friends, a gay couple, for some years before they asked if she would do flowers for their wedding. After much consideration she spoke to the couple, explaining that her religious convictions meant she could not, although she would do anything else for them. The Washington Attorney-General and the couple sued Barronelle personally, and her business. She lost her case in March.
Hundreds of bakers, florists, photographers, hoteliers, venue hosts, churches and pastors are finding themselves in similar positions across Europe and the USA. Some close down, others are “re-educated” by court order, and others are heavily fined in a personal capacity or threatened with imprisonment. Many Christian businesses are deliberately targeted.
As evidenced in the Barronelle Stutzman story, there is a material difference between unjust discrimination against a person because of who they are - ie “no gays” or “no blacks” and the desire not to be forced to participate in certain activities or ceremonies that conflict with one’s conscience. This is a most basic freedom; the freedom of conscience, belief and thought, protected by Article 18.
The Marriage Amendment (Marriage Equality) Bill 2015 will lead to a fundamental erosion of Article 18 freedoms.
ICCPR – Article 23
Redefining marriage is not the same as promoting marriage. In 1966, when the ICCPR was written, “marriage” was only comprehended to mean the union of one man and one woman. This is the kind of marriage to which the Covenant confers rights.
Key evidence of this is in the wording of sub-article (1), “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” Family is the natural group unit of society, because man-woman marriages are the union by which society is naturally produced.
This Article is incompatible with same-sex marriage. Rather, it reveals the reason why gender-diverse marriage is uniquely worthy of the protection of the State to the exclusion of other unions.
The Marriage Amendment (Marriage Equality) Bill 2015 erodes Article 23 protections by weakening the special protection afforded to society’s natural and fundamental group unit, centred on gender-diverse marriage.
ICCPR – Article 26
All persons are equal before the law in Australia insofar as it confers on every citizen an equal right to enter into the relationship called “marriage” if they so desire.
The Explanatory Memorandum of the Bill makes the assertion that redefining marriage improves equality before the law. If this is true, then the fullest equality before the law must be achieved by fully deconstructing the definition of marriage, to include those who find love in the myriad of ways possible in human experience. The same logic must also apply in law to any other definition that excludes (ie all definitions).
This is not what equality before the law means and such an argument is evidently absurd. The Marriage Act 1961 is already compatible with Article 26.
Convention on the Rights of the Child (CRC) – Article 7
The definition of marriage defines family. Defining a family structure that requires a child to miss out on their mother and/or their father is incompatible with Article 7, which confers on a child, “as far as possible, the right to know and be cared for by his or her parents.”
Government policy that removes a child from its true parents by deliberate act, not justified by Article 9, is incompatible with Article 7 of this Convention.
The consequences of the Marriage Amendment (Marriage Equality) Bill 2015 will clearly lead to the unjust breach of the Article 7 rights of children.
CRC – Article 9
Provides that, “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when… such separation is necessary for the best interests of the child.”
The Article further provides that, where a child has been separated from one or both parents, they must be able to maintain personal relations.
The consequences of the Marriage Amendment (Marriage Equality) Bill 2015 will clearly lead to the unjust breach of the Article 9 rights of children.