Last year's debate over whether to legalise same-sex marriage revolved around the means for resolving that question. Should Parliament have a free vote, or should public opinion first be tested through a plebiscite?
But same-sex marriage raises fundamental questions of law and religious freedom. The submissions to the current Senate Select Committee on the Marriage Amendment (Same-Sex Marriage) Bill grapple with these issues: if same-sex marriage becomes law, how do we enable gay and lesbian Australians to enjoy their new-found equality? To what extent should we protect people with religious objections to same-sex marriage?
Two issues can be dealt with shortly. First, ministers of religion must be free to solemnise marriages in accordance with their beliefs. Any other position would impose a religious observance, or prohibit the free exercise of religion, contrary to section 116 of the Commonwealth Constitution.
Second, there is no basis for extending a similar concession to marriage celebrants. Celebrants are civil servants. They voluntarily undertake a secular, public function: to solemnise marriages in accordance with the Marriage Act 1961 (Cth).
The case of commercial service providers is more complex. Anti-discrimination law generally bars people from refusing to provide goods and services on the grounds of sex or sexual orientation. But many argue that caterers, florists, reception centre owners and so on should be free to refuse to participate in same-sex weddings, on the basis of their religious beliefs ('the commercial exemption').
The case for the commercial exemption is unconvincing.
First, this particular exemption lacks a principled basis. In a liberal democracy, freedom of thought is absolute. But freedom to act in accordance with one's conscience is constrained by laws of general application. As Justice Scalia noted in Employment Division v Smith, the alternative would be 'a system in which each conscience is a law unto itself'.
The commercial exemption privileges one form of conscience: religious conscience. It provides no protection for a person with a deeply held but secular hostility to same-sex couples. It also only excuses discrimination on certain grounds, namely sex and sexual orientation.
"Advocates of the commercial exemption often labour under the misconception that a same-sex couple denied services is simply able to go elsewhere. This ignores the fundamental, dignitary harm caused by discrimination."
Religion has been used historically to justify practices like slavery and segregation. But we now accept that religious beliefs cannot justify discrimination on the grounds of race, age or disability. Is there a principled basis for exempting discrimination