The dangerous version of marriage equality the 'no' camp wants - even if we get a 'yes' vote.

On Wednesday we will finally learn the result of the marriage equality postal survey.

However, if the opinion polls are indeed correct and we get an overwhelming ‘yes’ vote, it’s not the final hurdle to legalise marriage for same sex couples in Australia.

The $122 million postal survey was, as we all know, non-binding. Now, members of parliament will be asked to vote on whether they want to see our marriage laws changed, informed by the will of the general public.

And to do that, they need a bill. Liberal Senator Dean Smith has said he’ll introduce the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 this week, in the event of a ‘yes’ vote. It’s a bill that has cross-party support for how it balances the legalisation of same sex marriage with religious concerns (namely, allowing ministers or celebrants to turn away LGBTI couples).

Listen: Mia Freedman talks to Janine Middleton, the CEO of Australian Marriage Equality.

However, there is another bill proposed by conservative Liberal Senator James Paterson that goes even further, backed and developed by no-leaning MPs. And if that fact alone rings alarm bells in your head, you’re on the money. This proposed bill has drawn criticism for its potential to undermine Australia’s anti-discrimination laws.

So let’s take a look at why this bill is so dangerous.

Empowering people to say no.

When we talk about empowering, it’s often seen in a positive light. In this case though, the bill, if enacted, would give anyone involved in Australia’s greater than $2 billion wedding industry the power to refuse their services to same-sex couples on grounds of “conscientious objection”.

This means that not only could a marriage celebrant or church refuse to hold a gay marriage, but a baker could refuse to bake their wedding cake, a function centre could refuse to host the reception, a florist could refuse to arrange the bouquets and a printing shop could refuse to print the invitations. Seriously.

Senator Paterson, who says he voted ‘yes’ in the postal survey, wants to make it clear this refusal is for weddings only (ie a bakery couldn’t decline to bake a gay person’s birthday cake because they’re gay).

“I think that’s an important difference because weddings are special. They are different from any other thing that happens in society. We have very strong beliefs about that,” told ABC’s Lucy Barbour.

And if you think this sounds ridiculous and a lot like discrimination, you’re not alone.

Senator James Paterson has said he has voted 'yes'. (Image via AAP.)

"Picking and choosing which people to serve is arbitrary and exclusionary and this is precisely the type of discrimination that anti-discrimination law aims to avoid," UNSW associate professor Mark Humphery-Jenner writes.

To work, the bill would override existing state and territory anti-discrimination and freedom-of-speech laws. And that's not all.

Senator Paterson's bill is so broad, it could also allow service providers to "conscientiously object" to weddings that involve people who have had sex or children before marriage. Tacked on is a clause that would allow parents to remove children from classes that don't reflect their views on traditional marriage.

As Equality Campaign co-chair Anna Brown puts it, the bill is reminiscent of a time when shop owners could refuse to serve people on the basis of gender, race or appearance.

"This is not a marriage equality bill. It's about enshrining discrimination and taking Australia back decades," Brown said.

"Australians are voting to make our country a fairer and more equal place, not to take us back to a time where people can be denied service at a shop.

"Australians have voted for equality, not more discrimination. Australians believe in a fair go for all – this bill goes completely against what people have voted for."

This bill would deliver marriage, yes, but not equality.

Smith vs Patterson

While Dean Smith's bill does protect some religious freedoms to essentially discriminate, it doesn't go nearly as far in allowing people potentially involved in a wedding to decline to take part.

In this bill, under sections 47 A and B, marriage celebrants may refuse to marry a couple if it goes against their religious beliefs (they would have to be registered as "religious marriage celebrants"). Similarly, religious organisations, like churches, may refuse to make their facilities available or offer goods and services. So they could decline a couple from marrying in their church if they see fit.

While many LBTQI Australians still find this bill's implications offensive, it is the far more moderate option and one the Equality Campaign is willing to accept for the sake of expeditiousness.


"The proposed bill has support across the government, opposition, and cross-bench and there should be no impediment to it passing now," Equality Campaign co-chair Alex Greenwich said.

Senator Dean Smith's bill has the support of the major parties. (Image via AAP.)

What's likely to happen?

The good news is, Prime Minister Malcolm Turnbull has said the government would not support changing laws to legally allow for discrimination against same-sex couples, and any bill that did so had "virtually no prospect" of passing parliament.

Meanwhile, Senator Smith has told Perth's The Sunday Times he will introduce his bill on Thursday, even if Australia returns a 'no' vote. Labor, the Greens and the Coalition have all indicated they support Smith's bill, with some MPs also coming out against Senator Paterson's this week.

Turnbull has described Senator Smith's as "clearly a good bill to start with", adding that amendments would likely be proposed, if not made.

"In a situation like this when a bill is presented, it’s like the first draft, so that gets put up, and there’ll no doubt be plenty of amendments ... debated, no doubt, for hours on end and at the end of it they’ll come to a conclusion on an amended bill," he told reporters at a media conference in Manila on Monday.

Labor's position the caucus resolved in October was Senator Smith's bill "strikes an acceptable compromise" between marriage equality and religious freedoms. Meanwhile, Greens leader Richard Di Natale has said his party would seek to make amendments to Smith's bill, but would "not do anything to jeopardise" it going through if those changes weren't likely to be accepted.

The optimistic among us are hoping marriage equality could be a reality by Christmas. But of course, we will have to wait and see.