Wednesday, 29 November 2017
Marriage Amendment (Definition and Religious Freedoms) Bill 2017; In Committee
I will be opposing this amendment in particular because of the third of the observations made by Senator Leyonhjelm, relating to the introduction of a new section 38A into the Sex Discrimination Act. This is the so-called bakers and florists amendment. It seems to me to be, in a sense, almost an academic argument—like the search for the bunyip, the search for the homophobic florist goes relentlessly and unavailingly on. Honourable senators have heard my position in relation to conscientious objection. For reasons I explained before, I believe that those who officiate in a marriage ceremony, whether they be religious celebrants or civil celebrants, ought to have the benefit of a conscientious objection—that matter has now been resolved against my view—but I do not believe that a right of conscientious objection can sensibly go beyond the act of officiating at the ceremony itself.
What Senator Leyonhjelm's amendment would essentially say to commercial goods or service providers—bakers, florists, wedding caterers; anyone from whom a commercial good or service may be purchased—is that you are free to discriminate against people on the basis of their sexuality and specifically you are free to discriminate against people in relation to the fact that they are entering into a ceremony of same-sex marriage. In my view, there is no justification for extending conscientious objection purely to a commercial relationship. I know, and Senator Abetz and I were discussing this a moment ago, there have been some cases in America where the Supreme Court has held that a commercial relationship may be protected, but that's because of the jurisprudence of the First Amendment. It is nothing to do with Australian law. If you say that any commercial service provider, any vendor of a good, is able to discriminate against people because they are conducting a same-sex marriage, then you are striking at the heart of the very principle that this bill seeks to establish—that is, the equality of people of the same sex in relation to marriage with people of opposite sex.
I respect Senator Leyonhjelm's libertarian principles. This amendment reflects a pure, almost absolutist libertarian point of view which would, taken to its extreme, see the repeal of all antidiscrimination law. Plainly the parliament does not want to do that, and it ought not to do that. In the balancing of rights, the idea that we should not protect categories of people from discrimination is I think an extreme position. We should protect people from discrimination, as the Sex Discrimination Act does, and, given the will of the parliament to amend the law to allow same-sex couples to marry is evident, then there is absolutely no reason, in my view, why antidiscrimination law should not apply to same-sex couples as it does to other protected categories. As I said in a television interview the other day, under the existing law it is unlawful to refuse to sell a good or a service to a person because they are gay, and if it's wrong to refuse to sell a good or service to a person because they are gay then it cannot be right to refuse to sell that same good or service to two people because they are gay. So, Senator Leyonhjelm, I understand where you're coming from. At least there is a certain crystalline purity about Senator Leyonhjelm's absolute positions. But this is not a position I would wish to adopt. It does attack, really, the heart of what the parliament is seeking to achieve here, and for that reason I will be opposing the amendment and I would urge other senators to do likewise.