While same-sex marriage has now become law in the ACT, the minority view of some church leaders is being allowed to hamstring Australia-wide equality, writes Peter Norden.

Australia’s path towards same-sex marriage appears to be running along two possible avenues.

One emanates out of the new Australian Capital Territory Marriage Equality Same-Sex Bill passed today: proposing new legislation restricted to same sex couples who seek to obtain a civil union.

The other involves a possible amendment to the existing Marriage Act, the passing of which seems dependent on Tony Abbott allowing a conscience vote to his Coalition parliamentary members.

Constitutional lawyers can better argue the prospects of the first avenue, but it seems that its success depends on whether the High Court decides that the new legislation impinges on the jurisdiction of the current Marriage Act, which is clearly restricted to a marriage between a man and a woman.

The ACT legislation cannot be found to be inconsistent with the federal law.

In this article, however, I would like to consider some aspects of the second possible path to the approval of same sex marriage throughout Australia, and why the Prime Minister may act to ensure there is insufficient parliamentary support for any future Amendment to the Marriage Act that would extend the definition of marriage to include same-sex partners.

Tony Abbott seems determined at this stage not to allow such legislation to proceed due to a personal conviction, which is at least influenced by his traditional Catholic values.

But the question to be considered is whether as Prime Minister he should effectively impose that personal conviction on the members of his party, by preventing them from acting on their own diverse convictions regarding same-sex marriage.

Given the clear majority of Australians, including Catholics, are now in favour of making an amendment to the existing legislation for civil ceremonies to include same-sex couples, let me explore why Tony Abbott seems so reticent in providing a conscience vote to his Coalition members.

Some Christian church leaders believe that the approval of same-sex marriage would threaten the very institution of marriage in Australia.

Other religious leaders have even suggested that such a change would open the way to the recognition of relationships with domestic animals!

Unlike the Australian Christian Lobby and Family Voice Australia, two of the more prominent lobby groups resisting a change to the Marriage Act, the Catholic Church represents a much broader membership base, but one that is far more diverse than the positions often adopted by its clerical leaders.

It is common knowledge that the new Prime Minister receives regular counsel from Cardinal George Pell, who is well known for his dismissive attitude to the long-established and respected Catholic tradition of “the centrality of individual conscience” in ethical decision making.

The Cardinal believes that more weight should be given to what he regards as “absolute truth” in the face of the rising influence of relativism, libertarianism and secularism.

Gone are the days when Catholic leaders had a recognised legitimacy to impose moral standards on their affiliated church members, as evidenced in Catholic Church teaching on matters of birth control or sexual morality generally.

Most Australians would respect the fact that an organisation like the Catholic Church should be able to determine who is eligible for marriage, for those who desire to be united within a Catholic Church marriage ceremony.

But their intention to impose their views on the wider Australian community in determining who can be married in Australia today should certainly be challenged.

While Catholic leaders may no longer be able to ensure conformity of belief or behaviour from the broad range of their church members, it is possible for them to exert an influence in Canberra through well-resourced lobbyists and through a direct appeal to the Prime Minister himself.

However, the relationship between Catholic Church marriage practice and the civil law is relevant to explore, because it reveals much about the way in which that church engages with civil society today.

Civil marriages are not recognised nor are civil divorces of a person who may have been married in a church ceremony. To be married in a Catholic church such a person must submit to an annulment process to prove that the previous marriage was invalid from the beginning.

From this analysis, it is clear that the Catholic Church will not extend its marriage blessing to those that don’t fit within its existing categories or procedures, and such conditions appear reasonable with regard to church-approved ceremonies.

Any proposed amendment to the Marriage Act would obviously include exemptions that preclude any obligation on religious organisations to conduct same-sex marriages.

In many European countries, marriages are performed by the state and church bodies are left to decide which unions they are willing to bless in a separate ceremony afterwards.

In Australia today it is the state that should decide the scope of the definition of civil marriage and not be controlled by the minority view of some church leaders.

The Prime Minister may have strong personal convictions about the nature of marriage, but he needs to respect the diverse convictions of his parliamentary colleagues and those of the Australian people.

Peter Norden is an Adjunct Professor in the School of Global, Social and Urban Studies at RMIT University. View his full profile here.

Author: Peter Norden
Publication: ABC The Drum
Date: 22 October 2013