The Slightly Disgruntled Scientist

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Sue the churches, sue the bakers

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In 2004 it took the Australian parliament less than a day to decide to prohibit marriage between any couple who weren’t man and woman.

It has taken another thirteen years plus the length of a David Kalisch speech to see substantial progress on overturning this discriminatory act. Two weeks ago we got the results back from a survey run by the Australian Bureau of Statistics — a result that has no legal meaning, no statistical rigour and little political sway. However, it has called the bluff of a very work-averse government, and so now we have another marriage equality bill before the Senate.

As I write this, various conservative and libertarian senators are amending the hell out this bill. Their amendments reflect the rhetoric of the recent “no” campaign, which reflects conservative talking points that have been bouncing around for years.

The stated concern is that once marriage equality is restored people will, if refused marriage by a priest, turn around and sue the church.

Good.

It could also be a celebrant whose religion compels them to refuse. Or maybe someone will sue a baker who refuses to bake them a wedding cake.

Good.

GOOD.

GOOD.

Because that is exactly how you hold providers of a public service and business owners to account when they make highly questionable decisions.


One libertarian senator, whose totally consistent libertarian views birthed an extra regulatory body to appease a cargo cult, has claimed that no celebrant should have to solemnise any wedding they don’t want to.

They don’t have to. They can quit.

I mean, let’s think about what would happen even if they don’t resign. No one is going to call the police on them. The police are not going to show up and march them at gunpoint to the ceremony. No couple would exchange vows in front of such a horrific scene! Probably.

No one is going to be forced to celebrant a marriage, anywhere in Australia, ever, amendment or no.

Can I really say they weren’t forced if their only other choices are getting sued or quitting? Well, yes, of course I damn well can. They were not forced to specifically be a celebrant. They are not forced into making the choice as to whose relationship they permit to have legal recognition. They have made a free choice to work providing a public service, acting as a gatekeeper for a special legal status that carries importance in our society.

The public service is required to perform duties without discriminating. If you do not want to do that, do not become a public servant.

If you disagree, reflect on what should happen if this were any other public service. Should a capital works project manager be immune to legal action if they refuse tenders from gay engineers? Should a tax office accountant be allowed freedom to refuse deductions by trans taxpayers? Of course not, because being gay or trans should never be a factor in whether or how you can participate in civil society.


What about where this role overlaps with religion though? Does it not interfere with a priest’s religious observance if they can’t refuse to marry a particular couple?

Well, major religions have had quite literally millennia to avoid this incredibly obvious and well-documented problem by advocating for a completely secular separation of religious and civil recognition of marriage. They have largely chosen not to, instead doubling down on the opposite. This is now their mess to fix — and fix it they can, still.

In other words, if you want “priest” to not be a public service role, go back in time and tell your bloody church to not use its full might and influence to make it one.

But they’ve just left it just a bit late, and that shouldn’t be made the problem of everyone in the world who isn’t a male-plus-female couple.


And that brings us to the bakers. Those poor bakers. They get up so early, and for what? To be used as conservative strawmen for homophobia? They deserve better, they make your friggin' danishes. Shut up about the bakers.

Let’s talk about running a business then.

Are we not just talking about people freely exchanging money for goods and services? The libertarian sleight of hand here is that a business is not a person. Even though it is run by people and employs people and sells to people, a business is granted a distinct legal identity from the people involved. A business enjoys many privileges that an individual does not: limited liability and organisational continuity being the most obvious.

In exchange for those very nice privileges, businesses are expected to comply with legal and social constraints. And just like a conflicted celebrant, if a business owner wants to reject that deal, they are free to do so. They are free to simply not run a business. They are not forced at spatula-point to wake up at 3am, drive to a bakery and make croissants for gay marryers. They have the option to not do that.

Even if… they… knead the dough.

Businesses can quite reasonably reject a client if they can account for their decision — a bar can refuse to serve a drunk patron or a car hire service can refuse someone with recent speeding fines. But if their decision comes down to “they weren’t heterosexual” then it’s been widely agreed upon that this is not good enough, in the same way as any other form of discrimination is not good enough. If that’s how you make decisions, you don’t get those privileges.

It is already the case that people may be prevented from running a business eg. fraudsters. It is not some fundamental freedom akin to walking under the open sky (and not seeing a wind turbine in the distance). It is granted by the government, and if you don’t want the responsibility it comes with, leave it.


I would very much like it if priests and civil celebrants and business owners had to comply with societal and legal standards that are, at their youngest, about thirty years old. Unfortunately Australian law already provides a great many exemptions from anti-discrimination law, so I won’t get my wish any time soon. On top of that, the practicalities of marriage services make it all a bit moot — any baker, jeweller, celebrant or priest could find countless other ways to politely decline any couple without risking legal action.

But the justifications being made tonight, in our senate, the claims of protecting personal liberty and religious freedom, should be seen for what they are: vacuous excuses to punch holes in anti-discrimination laws and undermine the important democratic principle of equal participation in society.

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