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Standing Committee on Social Policy and Legal Affairs - 12/04/2012

AGAR, Professor Nihal Singh, Chairman, Hindu Council of Australia

COUSINS, Pastor Peter Bradfield, Pastor, North New South Wales Conference of Seventh-day Adventists, Seventh-day Adventist Church

DENENBERG, Mr Steve, Executive Director, Union for Progressive Judaism

FORSYTH, Bishop Robert, Bishop, Anglican Church Diocese of Sydney

JAGDEV, Mr Bawa Singh, OAM, Secretary, Sikh Council of Australia Inc.

PORTEOUS, Auxiliary Bishop Julian Charles, Auxiliary Bishop, Catholic Archdiocese of Sydney

RIGLEY, Major Graeme, Chairman, Moral and Social Issues Council, Salvation Army

SEMMLER, Reverend Dr Michael, President of the Church, Lutheran Church of Australia

SUJATO, Venerable Bhante, Monastic Sangha Representative, Federation of Australian Buddhist Councils

Committee met at 10:02

CHAIR ( Mr Perrett ): I declare open this public hearing of the inquiry by the House of Representatives Standing Committee on Social Policy and Legal Affairs Committee into the Marriage Amendment Bill 2012 and the Marriage Equality Amendment Bill 2012. I acknowledge the traditional custodians of this land and pay our respects to the elders, past, present and future. The committee also acknowledges the present Aboriginal and Torres Strait Islanders and thanks them for their continuing stewardship.

This committee is currently holding an inquiry into two bills: the Marriage Equality Amendment Bill 2012, introduced by Mr Bandt, and the Marriage Amendment Bill 2012, introduced by Mr S Jones. There are wording differences between the two bills, which distinguish them technically, but the object of each bill is to legalise same-sex marriage in Australia, recognise same-sex marriages performed in foreign countries and ensure that the status quo, that no obligation is placed on ministers of religion to perform any marriage, including same-sex marriages, remains. We are examining the bills and the changes that they propose to make to the Marriage Act 1961. We are particularly interested in the legal and technical aspects of the bills. We will write a report to parliament that summarises the main issues and the contributions made by members of the public and relevant organisations. We as a committee are not voting on the bills. The House of Representatives will debate the bills in the chamber later this year and then will vote. While different members of the committee are on the record stating their views regarding same-sex marriage, we are here today as a committee and the report that comes out of this inquiry will reflect the views and materials presented to the committee.

Today's hearing is open to the public. A transcript of what is said will be placed on the committee's website. This is a public hearing, however, not a public meeting. Only those whom the committee has invited as witnesses will be allowed to speak and only the committee will be asking the questions. Anyone who interrupts proceedings will be asked to leave the premises. The public is welcome to participate in the inquiry by completing the online survey on inquiry website at www.aph.gov.au/marriage. Flyers about the survey are available in large piles at the door.

The deputy chair has sent her apologies; she is unable to make it to this hearing. We have also received apologies from the Quakers and the Episcopal Assembly of Oceania; today is Orthodox Easter and they are unable to be here. Please note that these meetings are formal proceedings of the Commonwealth parliament, even though we are in the New South Wales parliament building. Everything said should be factual and honest, and it can be considered a serious matter to attempt to mislead the committee.

Today we are discussing two bills that deal with marriage as a legal contract in Australia. We recognise that marriage is a religious institution for many and that is closely entwined with religious tradition, ceremony and meaning. We are opening the hearing today with this roundtable to discuss religious perspectives of marriage. It is not necessary that everyone here agrees with each other, but it is necessary that we have the chance to hear what marriage means to various religious organisations. Could you tell us about the importance of the institution of marriage in your religious tradition, particularly the foundations for the religious tenets that inform your religious position, and whether it is a literal interpretation of certain texts?

Prof. Agar : In the Hindu religion marriage is a spiritual contract, not just a social contract. We are supposed to go ahead with a few goals when we get into marriage. They are spiritual growth, companionship, model etiquette and all those. So in our religion there is no concept of sexual orientation. This is a choice. I will come to that later on. But in the Hindu religion, therefore, in summary, the marriage is between a man and a woman for progeny and for their spiritual growth.

CHAIR: Thank you.

Mr Jagdev : In Sikhism the institution of marriage is at the core of the Sikh religious teaching. Sikhism rejects celibacy and asceticism and condemns promiscuity regardless of sexual leaning. Sexual relationship is allowed within the bounds of marriage, which unites a man and a woman for the purpose of procreation and raising children in a caring and loving family environment. God created man and woman for the propagation of the human race. Otherwise he could have created only men or women. According to Sikh philosophy—

CHAIR: I should state that, because we have quite a short time, we have got your submissions, so there is no need to read any submissions. I am hoping for a shortened or Reader's Digest version for the sake of listeners.

Mr Jagdev : Okay. The Sikh philosophy does not approve of any such union; and we, the Sikhs, are totally against same-sex marriage and the use of marriage in that context.

CHAIR: Okay.

Major Rigley : The Salvation Army believes that the marriage of one man and one woman is a sacred institution ordained by God and traditional good-faith commitment to that union is one of the most rewarding of life's decisions. It is not a reflection on your sexuality as such; it is simply a reality that the Salvation Army believes that historically the cornerstone of society has been based on the marriage definition as one man to one woman for a lifelong, indissoluble union. That is the Salvation Army's view, which we believe part of our biblical tradition.

CHAIR: So the Bible would be the source for that.

Major Rigley : Yes.

CHAIR: Thank you.

Bishop Porteous : The Catholic tradition with regard to marriage is that it has a precise meaning as an exclusive and permanent union of a man and woman. It believes this on the basis of both divine revelation and the exercise of human reason and believes that marriage is foundational to both human life and also to society. It is a natural institution that does not allow for redefinition. That is basically our position.

Bishop Forsyth : The Anglican Church is very similar. The founder of the Christian faith, Jesus himself, spoke directly about marriage, quoting Old Testament texts and making two points:

… God made them male and female.

Then he quoted another text:

Therefore a man shall leave his father and mother to be joined to his wife, and they shall become one flesh—

meaning new kin. That is a fundamental insight that marriage creates a kinship relationship in which children are born and so forth that comes out of God making us male and female. Therefore, for us, to seek to include others into the marriage is a fundamental change of the deep meaning of marriage, not merely an addition to an existing institution. That is our deep concern.

CHAIR: Thank you.

Mr Denenberg : As you will know from the submissions you received, within the Jewish community there are a number of different perspectives on this, ranging from the Orthodox, who would say that an eternal value is that it can only be a man and a woman who enter into marriage—

CHAIR: Sourced from?

Mr Denenberg : Sourced from the Old Testament. The Progressive movement is based on the fact that we believe that religion is itself an active part of society and that each person was created in the images of God, which also comes from the Old Testament. We therefore believe that the behaviour of people has to reflect both modern values as well as the eternal values that we have from the Torah. As such, we support the concept. We believe that it is time for our society to move on. Only 60 years ago homosexuals were being exterminated alongside Jews because of what they are. I am heading off to Poland with a group on Sunday. We believe it is time to change. We believe we have to reflect these values, and our Progressive Judaism reflects that as well.

CHAIR: Thank you.

Mr Sujato : On behalf of the Federation of Australian Buddhist Councils, we support same-sex marriage, or marriage equality. This is something which I have discussed fairly broadly with the Buddhist community in Australia and have found pretty much general support. Yes, of course there is a diversity of views, but generally I would have to say the overwhelming response of the Buddhist community has been supporting marriage equality. Even in those people who might not support it, the opposition is not very strong; it is maybe something they are not so used to.

In Buddhist tradition, marriage is not as central a sacrament as it is for many of the other traditions we have heard. Typically, Buddhism has simply adopted the cultural norms of marriage in whatever society it has found itself in. There is no specifically Buddhist marriage ritual, so in different countries it is practised quite differently. In ancient India we often had polygamy, for example. In Tibet we had polyandry sometimes. There were many different kinds of marriage arrangements. So from a Buddhist perspective we see that marriage arrangements have essentially been conventions which are contracts developed among consenting people for the good of themselves, because of love, commitment and those reasons, rather than being specifically a spiritual or divine sacrament.

CHAIR: Are there no teachings of Siddhartha Gautama about marriage?

Mr Sujato : In the early Buddhist scriptures there are no teachings about the sacrament of marriage as such. There is basically advice for marital couples: things like fidelity, looking after each other and those kinds of things.

CHAIR: So fidelity despite how in some Buddhist traditions there is polygamy. Is it fidelity to one person?

Mr Sujato : No, fidelity does not necessarily mean to one person. Fidelity essentially means that you are not betraying anybody. That is how it is defined.

CHAIR: So you can be faithful to your four wives rather than your one.

Mr Sujato : Absolutely. Of course, I should note—and probably many of you have been aware—that the Dalai Lama has expressed views which have been interpreted as being critical of homosexuality. You asked about the texts. He is actually relying not on the Buddhist teachings as such but on much later commentaries which were composed a thousand years later. I am researching those. They do not even mention homosexuality; it is just sort of by the by. What they mention is essentially non straight sexual intercourse: any form of masturbation or any other kind of sexual activity is also outlawed according to those particular texts.

CHAIR: Okay.

Rev. Dr Semmler : Thank you for the opportunity. Please forgive my laryngitis; we do a lot of preaching in our church! Yes, the Bible does speak about this, but it does not for us as Lutherans speak about it as an institution of the church. It is of the state. It is for the state to regulate marriage. For us as Lutherans, we have a teaching of what marriage means and how we as Christians live in that marriage, and it is a man and a woman as the basis of society. It is unique. Our take on this is we do not want to interfere with the government ordering society. We do not like talking in rights; we talk in privileges and responsibilities. It is good governance to protect society and look after its health—to order society. The government must take that responsibility. We would say to the government, however, that to change the definition of marriage in its uniqueness of a husband and wife, which is there to promote and to build society, would be a wrong move. When my wife and I took vows, they were publicly held. To have that definition changed would be a very interesting move by a government. But to recognise what the world calls rights but we would call privileges and responsibilities of same-sex relationships is the government's business. We would not interfere with that, but we would want to make sure that the marriage as we understand it is not interfered with. That is a unique thing. Society cannot exist without a husband and a wife—a male and a female relationship. It cannot exist where they are just single people. It cannot exist where there are just same-sex relationships. It must have that unique relationship of a husband and wife, a man and a woman in an intimate relationship.

That is the basis for us, and there are behavioural issues in that. Each gives to the other. If you take the Ephesians passage from scripture, it is the husband who gives himself to his wife so that the wife can be the wife that she needs to be and vice versa. Our illustration is Christ giving himself for the lives of others. So there is a definite difference between what is theological, what is political and what is physiological, and the political must be governed by the state. We support that, but our plea is: please, preserve the uniqueness of the husband/wife—the male/female—in marriage.

CHAIR: Thank you.

Pastor Cousins : As a Seventh-day Adventist I would like to reaffirm our longstanding position as expressed in our fundamental beliefs that marriage was divinely established in Eden and affirmed by Jesus as a lifelong union between a man and a woman in loving companionship. Marriage was not a human idea; it was God's idea.

CHAIR: As per the Old Testament and New Testament, as you posed there.

Pastor Cousins : As per the Old Testament, God created man, God created Eve and brought her to him divinely ordained. We see that the use of the term 'marriage' for same-sex relationships is, in a way, to water down the concept of marriage as it has existed over thousands of years.

CHAIR: Okay.

Mr NEUMANN: My views are very clear. I am on the record in parliament and in the media that I am in favour of marriage between a man and a woman and against same-sex marriage, but I am struggling with one proposition put by the Catholic Church, Bishop Porteous, and is that in paragraph 6 of the submission you are arguing that to remove the legal definition of 'a man and a woman' from the legal code erodes respect for the distinctive role of fathers and mothers. You argue that on the basis that there would be an extra burden on the Family Court system which struggles to meet increasing demands placed on it. Parents have parental responsibility as mothers and fathers by virtue not of their marriage but by virtue of the fact that they are mothers and fathers under part 7 of the Family Law Act, so I am a bit puzzled by that argument. The states have transferred their jurisdiction to the federal government. The Family Court and Federal Magistrates Court exercising family law jurisdiction deal with ex-nuptial children as well as children born from same-sex relationships or from marital relations between a man and a woman, so how is it that there will be extra burden placed on the Family Court system—and why should that be an argument against same-sex marriage?

Bishop Porteous : I think essentially the concern of the church is to provide the best possible environment for the nurturing and formation of children. We believe that that is in the complementary roles a father and mother would play in the formation of children. There is clear evidence that where that is lacking—particularly where there is only one parental influence on a child—children do suffer from that. So our concern was essentially that society does all it can to provide the best possible environment for the nurturing of children. That is the provision of the influence of both a father and a mother. To remove that would put children at risk, if you like. It would deny, to a certain extent, their right under the United Nations charter, to have the influence of a father and a mother for their formation. This can then devolve into social breakdown to the extent that more things are likely to come to court and the children are likely to suffer; and, therefore, we will see the effects of that working through the court system.

Mr NEUMANN: I do not understand that argument. While I disagree with Mr Bandt's bill, I do not get the argument you are putting, because there is no change in Mr Jones or Mr Bandt's bills in relation to the definition and criteria the Family Courts use to determine what is the best interest of the children, and that remains the paramount consideration of the legislation. So this argument that you are putting, I think, is a pretty weak one that lacks legal foundation. So I ask you again: how is it that you are putting that proposition when that is a nonsense?

Bishop Porteous : I would be the first to say that is not central to our argument. That is one of the side issues. Obviously the change in the definition of marriage is going to have vast social implications that I do not think we have begun to appreciate yet. If it is established, we will see all sorts of outworkings in all sorts of areas. One of the great dangers—

Mr NEUMANN: Tell us what you think those areas are, because I did not find your arguments overly persuasive when I read them. Keep going.

Bishop Porteous : If we change the nature of marriage, I will first go to children, because I think that is a major consideration. All the possible implications for children, firstly in terms of maybe the lack of the best possible position for them to be nurtured in a sound sense of their own identity and in a sense of their identity as a male or female can come into question. They can start to become confused. If I have two dads or two mums, I do not have the complementary experience of fatherhood and motherhood. I can shape my own sense of who I am as a man or who I am as a woman. This in turn can then lead to ongoing confusion in life about their identity.

One of the other big issues I do not think we have dealt with enough—and I have heard examples of this—is where children are told, 'I think you should go talk to your father about this.' There was a case in a Catholic school recently. The child stood up and screamed out loud: 'I don't have a father. I don't know who my father is.' The sense of identity of a child is made secure when they have a clear sense of who they are. If we have same-sex unions then there are going to be a lot of cases of children not knowing who their fathers are. They come from a sperm bank. This in turn is going to create great confusion in the minds of children as to who they are and their whole sense of generational background. One of the blessing most of us have here is that we know who we are. I know who my father is. I know who my mother is. I know my grandparents. I can trace back the generations. That gives me a sense of my own identity, my own background. One of the dangers here would be that, if the definition of marriage is changed, it threatens this whole understanding of our own identities. I think that, in turn, will lead to people being less secure about who they are, and that can lead to society being damaged by that. In a sense, marriage has always been protected by society because we say, 'It is for the good of society if we support marriage.' If we build our marriage laws to protect it, that is going to be for the long-term good of the society.

CHAIR: I am particularly interested in exploring that. I have a chart in front of me showing marriage celebrants from 1908 through to 2008. If I pick the year 1967, back then about 90 per cent of marriages were performed by ministers of religion. Then there is a sharp decline from 1967 through to when this chart stops in about 2008, where only 35 per cent of marriages are performed by ministers of religion and it is trending. I can pass it around, but you are no doubt aware of some of this. Many of you made a suggestion that marriage is a significant part of your religion—in fact, it was even suggested that, if there were no opportunity for procreation, you would not even marry people. I am not sure if I am putting words into your mouths—

Bishop Porteous : We would still allow a very old couple, for instance, to get married. That would be accepted by the church.

CHAIR: I thought you said that there had to be an opportunity for children.

Bishop Porteous : I think you have to preserve the openness to life as essential to the meaning of marriage. A child needs to be born as an expression of the love between a man and a woman.

CHAIR: So a couple in their 70s could still get married.

Bishop Porteous : They still could get married, yes.

CHAIR: Because there would be the possibility of children, remote as it might be.

Bishop Porteous : Yes.

CHAIR: But other folks, in terms of this change in society from 1967 through to now, obviously seem to have had a massive change in terms of how important religion and marriage are to each other. There seems to be a focus on the idea that, if people of the same sex had a committed relationship and wanted to get married, that would somehow be the end of civilization, but there seems to have been a significant change in civilization from 1967. I am not sure what happened then. I know my wife was born, but I do not think I would hold her responsible for it! Why has this happened? Why is there such a focus on same-sex marriage rather than society's approach to religion? I was wondering if I could hear about this.

Bishop Forsyth : I do not understand the point you are making. You are absolutely right that there has been a massive shift away from the dominance of the church in these rights of passage. The church is not rigid; that is certainly true. To change the institution of marriage—not the religious meaning of marriage—which was there from ancient times, which is where we came from historically—

CHAIR: We are talking about the Marriage Act.

Bishop Forsyth : Yes. I am certainly not claiming that we want some sort of right over marriage as Christians or we want to control the debate. I respect that we live in a multifaith, multicultural, secular society. We Anglicans have given up trying to run anything. Yes, it was great while we had it, but we've given up! The days when you could not get married otherwise have, very happily, gone.

Mr NEUMANN: The Founding Fathers of Australia would not have a piece of you, would they?

Bishop Forsyth : No, no. I am not going to go there! So our claim is not that we want to control it or make it about religious control. We have our own personal convictions, but our objection is based upon what we believe is good for the society irrespective of religion. I make that clear. There is a subconcern I have that you will see in our paper We are concerned about unintended consequences which may lead to threats to the freedom of religion in terms of being compelled to act against conscience. Perhaps we will come back to that.

CHAIR: We might touch on that later.

Bishop Forsyth : Up until now, marriage has attached fathers, mothers and children so that the father—the husband of the wife—is the putative father of the children. He is not always; we know that, of course. But it connects. If you change from man/woman, you cannot at all have the biological parents connect to their children by marriage. I know in many examples it does not happen like that, of course, but as an institution that change is one that we have deep reservations about long-term. That is a break of the connection of father/mother/children as an institutional societal organisation. That is why it is man/woman: you need one of each to make a child.

CHAIR: But the figures are that about half of children born do not have married parents. Obviously, of those half that do have married parents, two-thirds of them were not married in a religious ceremony.

Bishop Forsyth : We believe that marriage is marriage no matter who does it. There is nothing in the Bible to say how you get married. There is no requirement that the church does it. Marriage is a contract between two people. We believe it is good when it is blessed in a religious context, but religion does not make marriage. Our point is not that you must have marriage to have fathers and mothers. We are saying that, if you change the meaning of marriage where it no longer means that relationship honoured by society which nurtures the kind of partnership within which children are born and nurtured to something else for other reasons, it is a dangerous thing to do long term.

CHAIR: How would that affect my marriage?

Bishop Forsyth : It may not affect your marriage literally in itself. We are not pretending for a minute that. But it would change what it meant for you to say, 'We're married.' Marriage as an institution would change.

CHAIR: I am using myself as an example. I was married in a Catholic church—to an Anglican, for the record's sake. There is one school of thought that, if the Marriage Act changed tomorrow, that would not affect my relationship with my wife at all. If two blokes or two women wanted to protect their committed relationship to the exclusion of all others, as both bills suggest, how would that impact on my marriage?

Bishop Forsyth : I do not object to that happening. I just do not want it to be called by the same name as a man and a woman for life. I have my own personal judgment of what should happen, but I am not saying there should not be committed, even legally authorised gay relationship matters. I am simply saying calling the two realities by the same name is confusing and it does affect what marriage means. I would not mind a thing called 'gay marriage'.

Dr STONE: That leads on to a question I have been keen to ask you, Bishop and others. There is a lot of support for same-sex civil unions. Some are called civil unions. Some are other authorised registrations or whatever. At least four states have explored these paths. Can you tell us your response to there being what some fear is evolutionary civil unions leading ultimately into same-sex marriage in our society? What is your response to their being a same-sex civil union legislated in the national context? How would that change the situation? Would it be no different or would that still be a concern for you in terms of the fundamentals of a man and a woman procreating children?

Bishop Porteous : I have a simple comment. I think it is difficult because it does in one sense say that the state does recognise these unions as valid in their own right. As a Catholic, I would have difficulty with that. The church's position is very clear. We would say again that it is not reflecting the truth about human nature and the nature of marriage. The Catholic church's stance flies on two wings. One is revelation, which is central. The other one is reason, and I believe what is not applied enough in this issue is looking purely from the point of view of reason: to look at nature as it is. It is very clear that the way we are as human beings—male and female—has natural complementarity. There is the whole biological physical reality connected with sexual expression that is very clear at a natural level. It is just how we are. So we have to say that something different from this is not according to the nature of human beings. To ask if we can then enshrine, even at a lesser level than marriage, still declares to society that there is another option. With due respect to people who have an inclination, we cannot say that, because nature declares what it means to be married, what it means to be male and what it means to be female.

Mr BANDT: Does that mean that your view is that homosexuality is unnatural?

Bishop Porteous : The church teaches very clearly that homosexuality is a disordered expression of sexuality. We have to say that very clearly as the teaching of the church in its reflection from scripture and its examination of the natural realities of human life.

Mr BANDT: I must say I do not know to what extent the others around the table agree with that view, but it seems then that the arguments against equal marriage are in fact arguments against gays and lesbians. It proceeds from a statement and a belief that homosexuality is unnatural, so it is not necessarily about protecting a particular institution. It is about reinforcing certain churches' views that homosexuality is unnatural.

Pastor Cousins : I think that would be drawing a long bow. I do not believe that is the case. We believe very clearly in the rights of individuals and in the rights of people to make choices. What is at stake here is why it is that same-sex marriages must borrow a term that has applied for centuries to a heterosexual relationship. Where is the creativity? Why don't we call it something unique—for that is what it is?

Dr STONE: A civil union?

Pastor Cousins : If you like—but not marriage.

Prof. Agar : I would certainly support the argument that it may be called civil union. I do not agree with the bishop that homosexuality is unnatural, because there is no biological scientific evidence to say that.

Mr BANDT: We have heard from at least two religious organisations here today, and another one that put in a written submission, that they would agree with the ability to marry two people of the same sex within their faith. In the context of the differing views, given that religious diversity, is it not incumbent to protect that freedom of religion by allowing those religious organisations that want to marry same-sex couples to do so? How is it our role, or the role of other religious organisations, to tell churches or religious groups that they are not allowed to marry same-sex couples?

Bishop Forsyth : With respect, there is no attempt to tell people that at all, sir. That is not the thing. You are asking us what we think is good law. I have a great concern about religious freedom. I think there are dangers in this world for it, but even I would not pretend that religious freedom is freedom to do whatever I think I want to do. There are many things I would like to do as a religious practitioner, some good and some bad. I do not think that just because I would like to do it that gives me a right to do it. It is where I am constrained by deep convictions. There is a church I am thinking about, the Metropolitan Community Church, which is actually an explicitly gay church, isn't it? But I do not think I want to use the religious conscience argument at this point one way or the other. In fact, I am agreeing with you: if there is a case against changing the definition of marriage it cannot depend upon a judgment positively or negatively about the state of homosexuals, because in our society there is no agreement. Some have a belief that it is unnatural and some that it is not.

I think the state has to be neutral on this. I do not pretend my case. I hope it does not in any way depend upon other judgments one might make about the moral standing of homosexual relationships. The state must make the decision, as far as it can, on other grounds. One way or the other, one of my concerns is that some of the objects of the bills here are quite unrelated to marriage.

CHAIR: Are you referring to both bills?

Bishop Forsyth : Particularly the equality bill—the one with the very lengthy objects to recognise fundamental human rights and so forth. That is, I think, probably overegging the pudding the other way.

Mr Denenberg : I would like to comment on what you have said. Within our movement we have been offering same-sex commitment ceremonies for a number of years. What we do find of the gay groups within our movement is that they feel they have been excluded, possibly for centuries. Homophobia has been prevalent in our society, so when we have offered same-sex commitment ceremonies for many of them it is insufficient. To a certain extent, we appreciate and embrace the fact that they want spirituality, they want a real commitment and they want the same commitment that the rest of society enjoys. We know that within gay marriages there will be divorces and there will be some good parents and some bad parents. But there is no question the evidence is that same-sex couples are as capable of being good parents as heterosexual couples and that the desire is for those people to be included in our society using the same terms, the same ceremonies and the same commitments, and we feel that this is an appropriate move forward in today's world.

Ms SMYTH: Bishop Porteous and some of the others here today have reflected on what essentially seems to be a public policy view that the primary purpose of marriage is natural procreation or that in some way that validates marriage. I note that you are nodding at that, Bishop Porteous. It seems to me an unusual position to be inviting the state to take a public policy position which would seem not only to be discriminatory towards same-sex couples but also to be somewhat discriminatory towards those who are infertile, who are elderly and who choose to marry and choose not to have children. What the state in fact is being invited to do here is declare that marriage is solely for the purposes of, and indeed validated only by, natural procreation. That would seem a very narrow casting of the definition of marriage and, I would have thought, rather dangerous for a range of organisations which are seeking to advocate their faith view to a range of people and indeed recruit people from a range of walks of life. I wonder whether you have any comments on that and whether you perhaps could cast that differently for me if you have a different view now.

Bishop Porteous : I appreciate that question and I do understand the issue. Firstly, the important thing with regard to marriage is to present its truth, its reality. We know that it finds concrete expression in a whole range of situations according to people and backgrounds. But, as I was saying before, we are not basing ourselves here solely on a faith view. We are saying that this is the truth of human life, which I think is self-evident.

Ms SMYTH: It is not quite self-evident to me. That was perhaps apparent from my question. Perhaps you could explain why it is a truth.

Bishop Porteous : Firstly, there has been a tradition—and that is not just from Christianity, as we have heard from Hindus and from Sikhs today.

Ms SMYTH: Is that a truth?

Bishop Porteous : There is a truth about the nature of marriage that I think has been enshrined in cultures, not just limited to Christianity. The good of society means we need to maintain that truth because there are inherent goods that come forth as a result of adhering to that truth. That is not to say that in concrete situations there are not difficulties. But hard cases make bad law. If you try to adjust it for everything, you weaken and destroy the essential good that is essentially being proclaimed.

Ms SMYTH: Can I just return to the truth question for a moment. Is it right for me to say that it is based on biology solely? Is it based on your perception that it should be a heterosexual biological relationship that potentially leads to life? That is essentially, in a nutshell, the definition that you are presuming in terms of marriage.

Bishop Porteous : Biological, psychological, spiritual, I think, are all the elements. I think there is a strong psychological dimension.

Ms SMYTH: Presumably, that is common to a variety of couples—elderly couples, infertile couples, potentially homosexual couples. So, psychologically and spiritually, potentially those couples tick those boxes.

Bishop Porteous : Certainly, the union between a man and a woman has a natural psychological dimension to it.

Ms SMYTH: How so?

Bishop Porteous : The vast bulk of humanity has found the attraction between a male and a female to be the natural way in which their own lives are realised in terms of marriage and, hopefully, family.

Ms SMYTH: I suppose what I am getting to, as a woman, is that marriage has not necessarily always been kind to women throughout its history, I think it is fair to say—and I should say that I am not married, which I think is important to note in the context of this. The same sorts of arguments about biological inevitability in the 'nature of things' has been applied to a range of circumstances affecting discrimination against women in society—for instance, from women in the workplace to women voting to, most recently, questions about whether women should be in the front line in the military. I would need rather a lot of persuading to believe that marriage should be reflective solely of what some perceive to be 'natural' circumstances and only validated by that. I would have imagined that marriage had more to it than simply a set of biological circumstances that are predisposed to creating children in a 'natural' set of circumstances.

Bishop Porteous : Society as a whole, I think, has a general orientation towards respect for and appreciation of the importance of marriage as a union, marriage as providing a stable basis for the living of life and creating the environment in which to have children. I think that is, by and large, the view and the sense. I think people just have an inherent sense of 'this is right'. There may be issues, and certainly there have been changes in society with regard to roles of women that may nuance things. You might have both working, and things like that, in marriages now, whereas before you might have had just the male working and the female at home.

CHAIR: They have always done a little bit of work. I am saying that to nine male religious leaders around the table.

Ms SMYTH: I think there is a higher bar for the state in making an assessment about how these things should apply to the whole of society and to people from a variety of faith and non-faith backgrounds. I think it is important to tease out that this should be about more than just the issue of procreation.

CHAIR: Reverend Semmler has been very patient, so I will go to him.

Rev. Dr Semmler : Obviously, this becomes a very emotive issue with words like discrimination and rights. I will say again that, for us, it is not about rights; it is rather about the opportunity, the responsibility and the privilege, which takes us to another area. For us, the procreation issue in the marriage does not validate the marriage. That does not validate marriage for us. We would still say, very clearly, that the contribution of a male-female relationship to society is in itself unique and in some ways, without becoming emotive as well, there would be something of a reverse discrimination if that marriage definition were broadened. We are not saying that there should not be a recognition but, again, when you argue from rights, you kind of lose our church a little bit because there is a difference in the relationship, even in the actual sexual act if nothing else. There is a difference and, somehow, we need to be honest and recognise those differences. There cannot be a society without procreation but it does not mean that procreation per se is that which validates a marriage. We would never say that. We still say that marriage is for everybody. It is given for the state not specifically to the church and the state needs to order it. So the state needs to ask questions. Does a decision to broaden the definition of marriage really enhance and protect the state and those in the state? That is a big question.

CHAIR: That should be the question.

Rev. Semmler : I think so. Think big picture. Please do not try to correct a wrong in the past by legislating something for the now. You need to think what it could be in the future. I will appeal again: please, the uniqueness of the male-female relationship does not put it above or anywhere else. It puts it unique in its contribution to society. That is what we would like to see preserved and that is why we would appeal for not changing the definition of marriage.

CHAIR: Venerable Sujato.

Ven. Sujato : Thank you. It seems to me that one thing that has been missing a little bit from the dialogue this morning has been the perspective of compassion and understanding, and what is the suffering people are actually experiencing in their lives right now that causes them to want to ask for gay marriage—the people who want to bring this about. It seems to me that there is a wide range of suffering, from schoolyard bullying to discrimination in the workplace and all kinds of social discrimination. There is a lot of empirical evidence. For example, in some states in the US that have legalised same-sex marriages, there are lower levels of anxiety among gay families and so on and so forth. There is a lower incidence of HIV in those areas. There is a lot of demonstrable and real social, psychological and health benefits from same-sex marriages. We should be focusing on the actual alleviation of human suffering and the actual responsiveness to people's needs. I think the reason for that is, again, something that I am not sure has been really touched on is: why marriage. Why not civil union? Because marriage really means something to people. It has all the fantasy. It has the veils and throwing the rice and all of those things, which is part of what makes living together and keeping a commitment to glue and hold it together. Having civil union just does not do that in the same way.

Mr BANDT: I will follow up that point and a general question that people can answer now or later. We have a submission from the Psychologists for Marriage Equality pointing out that you have, amongst same-sex attracted people, a four-times higher rate of attempted suicide. We have submissions from many groups saying exactly what you just said that they want marriage because it is recognised as an important institution, which is why they want to embrace it themselves. To be barred from it specifically on the basis of their relationship is harmful so, putting aside the principal arguments—and I have one eye to our representative from the Salvation Army here today who spoke about a sense of brokenness, I think, in society in their submission—when you have so many people who are clearly suffering as a result of stigma, surely there has got to be an argument, if we move beyond principle, for saying that it would actually do more good to allow those people to participate fully when we know the evidence is that that will reduce the mental health and other health problems that those people face.

Bishop Porteous : I have one little issue of correction on that information. We have to be sure that increased suicide rates and other issues, depression and so forth, are because they cannot get married and not because of the actual experience of life generally for homosexuals. I just make that little clarification.

Mr BANDT: But I was clear about that in my question and said that it is as a result of stigmatisation and difference and that there is also evidence of that in the submissions. One of the things that they are saying is that this would go some way towards reducing that stigmatisation.

Bishop Porteous : I have other evidence.

CHAIR: I do not think that we have had any evidence in terms of looking at suicide rates of same-sex-attracted people in states that have brought in marriage recognition. On my preliminary research, we have not actually got any data on that.

Mr NEUMANN: I want to explore something with the Christian ministers that the chair raised before. Bishop Forsyth quoted Matthew's gospel chapter 19:5 which says that a man should leave his mother and father and join together with his wife and two shall become one. That is from Genesis chapter 2:24. Adam and Eve were certainly not married in the sense that they did not go through any ceremony like that, and you would have to accept, would you not, that the Bible was a progressive revelation.

For example, Joshua's ideas of God would be very different from Jesus' ideas of God. I am sure that Jesus did not go around engaging in genocide through Palestine, sacking Jericho and killing women and children. Jesus would not have done that; certainly none of the gospels talk about that. Very few of your submissions actually explore this and there are millions of people who sit in your pews every week in your churches and I am interested in knowing the biblical interpretation or understanding of your positions. Certainly Paul raises that issue in Ephesians chapter 5:31 as well. Perhaps the Christian ministers could explore the biblical understanding of marriage from your point of view, because you represent millions of Christians who sit in your congregations every week. Can you tell us on what biblical basis you believe that marriage should be between a man and a woman?

Bishop Forsyth : By the way, Jesus' name also means Joshua.

Mr NEUMANN: Yes, I know.

Bishop Forsyth : It was a great disappointment to many that he did not do that. They thought he should throw the Romans out, but he said, 'My kingdom is not of this world.'

Mr NEUMANN: Judas Iscariot would probably agree with you.

Bishop Forsyth : It may well have been the reason he betrayed Jesus. For a Christian person, God had spoken in many ways through our ancestor prophets but now He had spoken through his Son. The words of Jesus have a very special place. Secondly, Jesus endorsed and enhanced the understanding that God made us male and female and that is why the words 'one flesh' are there. In some places he corrects or develops, but here he endorsed. It seems to me that the scriptures give you two ways of life which are blessed by God: celibate singleness and fully sexual marriage—and marriage means one man and one woman. It is not just a verse here or a verse there, they are the two main streams.

I am always open to being corrected by understanding, but there is a third kind of relationship from a biblical point of view—and I am not talking about what the states should do—which is 'man-man' and 'woman-woman'. In the Bible, rather than society, wherever it is mentioned in both Testaments a non man-woman relationship is universally condemned unconditionally in very strong terms, often counterculturally. You may want to say that it is not the states' job to enforce the Bible—and I do not think that it is—but I do not think that you can properly argue that it is not actually a Christian doctrine to hold that marriage is between a man and a woman. I think that that is a pretty strong case. I know there are attempts within the church to overturn that. There is theological ferment. We are Anglicans; of course, there is no view held by anybody at any time not held by Anglicans sometimes. We have a very diverse church; I am not pretending other than that. But I would say that the great weight of biblical understanding is that. You may go outside the Bible to change; you may even challenge the Bible. I respect those views, but I think the Bible is strong.

Mr NEUMANN: Is that the view of the Seventh-day Adventists and the Lutherans as well?

Pastor Cousins : Yes. The biblical account is very clear. As I said earlier, God created Adam—and that, of course, may be a discussion amongst some—and He said, 'It is not good for man to be alone.' He provided Eve to Adam for companionship for the covenant of marriage, and biblically the covenant is far deeper than a secular union; it is akin to the hesed, God's love for man. God provided Eve for Adam. It comes from His divine hand. It was His idea, and He created woman for man. It is one of the two institutions that come to us from Genesis and the Garden of Eden.

CHAIR: On Q&A on Monday night I heard a slightly different interpretation from Archbishop Pell, but we might touch on that. We are going over time, and I am happy to extend this a little bit, but I might hear from the Reverend Dr Semmler and then we will have questions from Dr Stone, and then there is a question I would definitely like to ask before you go.

Rev. Dr Semmler : I do not think it is our job to enforce our theology or even our morality on the state. I think that is important for us as Lutherans. However, for us as Lutherans it is also quite clear that marriage is of God for the state, and it is designed in a complementary way. That is why there are Adam and Eve. That to us is quite important. Whether you take that as literal or mythological, it is still precisely the same. That is picked up again by Jesus, and Scripture is for us a history of God revealing Himself and showing Himself with His people and to His people. Therefore, there is a progression, as you kind of mentioned before. But there is no contradiction from our point of view. The very fact that marriage is likened to what Christ did for us—you are going to get me into theology, and I will be as brief as I can; I appreciate—

CHAIR: Please do. I think Major Rigley is waiting.

Rev. Dr Semmler : There are no children of God and there are no believers unless Christ gives Himself. There is no church unless Christ gives Himself. There is no marriage unless a man gives himself to a woman and a woman gives herself to a man to make that one uniqueness. That is basically where we are coming from—Ephesians.

Major Rigley : Just to comment, the Salvation Army believes very strongly in the difficulties that the gay community experience, Senator. I totally accept the fact that we are working without discrimination.

CHAIR: That is about as defamatory as you can get! We are House of Reps here.

Major Rigley : Sorry.

Bishop Forsyth : That is much more serious!

CHAIR: We are happy to tolerate religious stuff, but nobody is calling us senators!

Major Rigley : My humble apologies. But the Salvation Army works without discrimination, and that is the history of the Salvation Army's social involvement across the nation. So there is no question for us of the pain and agony that people experience in situations that are not fostered by society or recognised by society. So we are very mindful of that, yet we are also a religious organisation and we believe strongly in what Christ said about the state of marriage. We can interpret, as you say, the mythological background of the Old Testament and the progressive revelation. I agree with the comment from the Anglican Church that it is a progressive revelation of Christ, and He became God's greatest revelation. So in the Salvation Army we believe strongly that Jesus was talking in that instance about divorce. He was not talking about marriage per se, but He used that to reflect on the fact that, from the history of creation, God had brought man and woman together as a complementary relationship. It is not about procreation as such; I do not believe that is the case in all ways whatsoever. I think it is about the complementarity, if you like, of a male and a female. It does not, by deflection, imply inappropriate relationships between other people in society, but what we are simply holding to is that the definition of marriage is a unique institution ordained by God. That is where the Salvation Army comes from. We recognise the pain and we recognise the other issues. It may be, as someone suggested earlier, looking at other definitions and other names for relationships that do not change the fundamental nature of what we believe marriage has been ordained to be for thousands of years, both by society and by our religious convictions.

Dr STONE: Maybe that was a good finale, Major. My background is in social science and I spent a lot of time looking at gender socialisation, particularly in the Australian culture, and I have very particular view about the need for a male and a female in the socialisation of children—boys having a father and girls having a mother. There is a lot of evidence about what happens when that is not the case. There is also a lot of evidence about what happens when a heterosexual couple with their own children fall off the rails as well—that goes without saying. I am interested in the human rights debate. We seem to have some saying that there is a human right for a same-sex couple to have equality of access to the institution of marriage. We also say there is a human right for children to be raised it in the best possible environment for them to reach their full potential themselves as parents and as fully developed human beings. Do you see a hierarchy of rights there? How do we manage that?

Bishop Forsyth : I do not think the argument on rights works here. Anyone can get married if they fulfil the conditions of the institution. Any man or woman can get married in this country under present law. In my view it is not discriminatory if there is an inherent requirement. I do not think I have got the right to become the captain of the Australian cricket team—no matter how bad they go—because I do not have the ability. If you had a rule that said redheaded men or men with moustaches could not then that would be plainly discriminatory. My understanding is marriage is a certain kind of relationship. All may enter it if you wish. Some may say, 'I choose not to because I am not attracted to the opposite sex,' to which I say, 'I understand that. Maybe you could find some other thing.' I do not think a couple have a right in the way individuals to. That is why I would say that, for me, there is not a balance of rights. There is not, in my understanding, a rights question at stake. I know, by the preamble to these bills, others see it very differently.

CHAIR: If you are same-sex attracted, DSM-1 said that it was a condition that could be treated. That has long been gone in the psychiatric associations' approach to homosexuality. It would not matter what society did. If someone is same-sex attracted, I think most people would respect that it is not something that can be treated as a psychiatric condition. I know there are still some religious groups—

Bishop Forsyth : We will assume that for the sake of the argument.

CHAIR: I know we might hear from people later in the day that would disagree. For them to be excluded because of their sexual orientation—

Bishop Forsyth : They are not excluded because of their sexual orientation.

CHAIR: They are excluded. They would be excluded.

Bishop Forsyth : This is why I am opposing some of the objects of these laws. The present law simply says a man and a woman. It makes no mention of sexual orientation at all.

CHAIR: Since 2004, Bishop Forsyth.

Bishop Forsyth : I understand that. It was because it was taken for granted; that is why, not because we are changing it backwards. I am not saying a person who is same-sex attracted should get married but I am saying the law does not say: sorry, you people cannot get married because you are same-sex attracted. All it says is a marriage is this: if you can fulfil this, you cannot marry your sister or your brother.

Mr BANDT: It says that they cannot get married to each other. Your suggestion is that the only way it could be fulfilled is if a homosexual man and a lesbian woman decided to marry each other.

Bishop Forsyth : I am saying a man and a woman. I am making no other comment.

CHAIR: So they could do it without love?

Bishop Forsyth : Of course I am not proposing that. I am drawing attention to the law. I am not trying to argue a silly case like that. I understand the issues here. I am simply saying that people are reading into the law as though there is a law that says you must not get married if you are same-sex attracted. No, it says: this is marriage. If you can fulfil what it is, you can do it. That is the argument I am putting.

Mr BANDT: There used to be similar laws about what the voting franchise was. There used to be similar laws about who would control property. You could mount exactly the same argument that as long as you met those criteria, they would apply to everyone equally.

Bishop Forsyth : Yes you could. I understand that point. You have to show it is not just the case but also that this is the inherent reality of the thing. It is arbitrary to say that someone must have property to vote in a way that I do not believe it is arbitrary to say you must be a man and a woman to marry. That is the difference. I am not a nominalist. You can choose to call it what you like. There are other realities out there of some kind which are different kinds of realities and I would like to keep the word 'marriage' to that reality.

Dr STONE: It is not the evolution of norms of society we are talking about.

Bishop Forsyth : That is going on, but not that part of the reality.

Dr STONE: We are talking the reality of biological reality, if you like, of the male-female.

Bishop Forsyth : Deep down it is grounded and that is the distinction.

Dr STONE: Yes, I hear what you are saying.

CHAIR: I have a question that would lead to you, Bishop, because I know we touched on this earlier. In terms of the biology, if you are a quadriplegic with no ability to have children, or you have had cancer, or a hysterectomy, or something like that or you are 80 years old, you were saying that the Catholic Church would still let these people be married, even though their biology is such that there would be almost no chance of them having children—miracles aside. So their biology would say that they cannot get married but, because they are men and women, they would be able to get married?

Bishop Porteous : That is correct.

CHAIR: Can you see a contradiction there?

Bishop Porteous : We would say that there are two ends in marriage. One end is companionship and unity of a man and woman, and the second end is procreation. Ideally they should both be present. If the procreation side is not, we would still recognise the fact that a couple wants to be married for the sake of companionship and unity.

CHAIR: I can speak with a bit of authority here; my Anglican wife had to accept that the children would be raised in the Catholic Church, if I remember—

Bishop Porteous : If I may comment on rights. The major argument that has been put forward in relation to acceptance of same-sex unions as marriages is based on rights. They have a right to do it. That is something that a lot of people are naturally drawn to in Australia because we are very strong about human rights, and that is one of our great traditions, and our Constitution and so forth supports it. I would fully support, obviously, the protection of rights.

However, it is also important to realise that no right is absolute. I can have the right to drive a car, but I have to abide by the law. What that does say is that the right has to be balanced by the common good. There are other real factors that have to be brought into consideration in the way in which a right is exercised. We would say that we are not denying the rights of homosexual people, but we would have to say that, in terms of the common good of society, marriage has a particular definition which cannot be changed. You cannot have a right to enter something which has a particular meaning and, since time immemorial, has an understanding of the way in which life should be lived in society, and we want to protect that.

CHAIR: Thank you. I will take a last comment and then we will have the last question.

Mr Denenberg : What has come out is that the important issue for us, perhaps, is our relevance to society. To me there is an inevitability that there will be equal marriage rights. It will come. Whether it is this time around or next time, it will come, because it will be fulfilling the human rights and the equality of both sexes. For me the question is: how do we ensure our relevance. You have spoken about figures and the diminution of numbers of people seeking marriage within religious institutions.

CHAIR: Only one in three now.

Mr Denenberg : Yes. Our core goals are the common good of society and making the world a better place. What we have found is that, by embracing people of the same sex, making them feel that they are equal members of our community with the same rights and the same obligations, we are fulfilling our goal in that respect.

CHAIR: Thank you. Some submissions have suggested that the amendments proposed to section 47 do not go far enough in protecting freedom of religion, for example, that no obligation should be imposed on a religious body to make its property available for a marriage that it disagrees with. Can you comment on the legal concerns of religious organisations in the event that same-sex marriages were legalised? I might hear from some voices that we have not heard for a while such as a demand that the Sikh temple had to be used.

Mr Jagdev : According to Sikhism the marriage is a union between two opposite sexes. So, if two homosexuals come, we would refuse.

CHAIR: Do you think that there would be enough protection in the legislation to allow you to prevent the two blokes from being married in your temple?

Mr Jagdev : That would be against our ethics and our philosophy. We would not do it.

CHAIR: Rather than go around the table, would anyone else like to comment on that?

Bishop Forsyth : That was our Anglican submission. And I must say there is a lot of fear out there amongst Christians, which I think is unrealistic. I do not believe there is any intention; I respect that. It is more to do with the interaction of non-discrimination laws when marriage is changed. For us, if this law were changed, we simply would not recognise it to be the case. Those who marry otherwise in God's word aloud are not joined together by God, we say in our service. We would say that is not a marriage. But there are dangers for—

CHAIR: Does that mean you would not recognise Buddhist marriages, Sikh marriages or—

Bishop Forsyth : Of course we would. It is not Christian marriages. Marriage is not a Christian institution; it is a God-given for humanity institution, whether you are an atheist or a Callithumpian or a Jedi Knight—whatever your religion be. My point is just that there would be a fundamental problem. I do not think ministers would be forced to do it. There is a concern about provision of services, secular celebrants who may have conscientious views, the whole interaction—not of this act; this act is quite safe. But we would like to be sure that there was something saying that no other act will compel. Someone mentioned the other day wedding photographers. I am not saying that they are right to not want to do it; I am simply saying freedom is freedom for those who are wrong to justifiably—and I just do not want to have people caught where a change is deeply felt, where they are felt by the law to engage in endorsing something they profoundly disagree with. I think we would be very comforted if, in the legislation, if it were to pass, there would be some way to make sure it was not just section 47 but some other more general thing, as we suggest in our own Anglican proposal.

Pastor Cousins : What in fact would prevent the secular state from coming back with the law which says, 'You are discriminating against certain people by not permitting them to be married in your building'? I think that case would be as strong or stronger than the one you have at present. So inherent in this and in the argument that has been put forward now is that danger.

Major Rigley : I believe that the bill put forward by Mr Bandt and the bill put forward by Mr Jones both clarified the exemption that would be available to certain bodies, and I accept that on its face value, but I also have concern, under the human rights legislation, that it could be watered down in a different way. I think it is important that, for an organisation like the Salvation Army, which has officers belonging to the organisation—they have to accept the direction of the organisation—it would be inherently difficult if there were some scenario that allowed that; that could be watered down.

CHAIR: It is not my bias here, but we will leave the last word to the Catholics.

Bishop Porteous : There is just another question I would raise in this regard; I do not think it has been canvassed yet. If this legislation comes in it amounts to a redefinition of the nature of marriage. Does that then mean that this would have to be taught in schools, that a Catholic school then would have to say that this is the official position? Would we come under discriminatory legislation to say that we must teach this? Does it mean that we could say to somebody who supports this legislation and wants to teach in our school, 'Sorry, you cannot teach this in our schools because this goes against Catholic teaching'? It opens a Pandora's box with regard to what we would say is our religious freedom in being able to present what we believed to be true about the nature of marriage.

CHAIR: Bishop, I will take that by way of a comment and remind you that we ask the questions.

Bishop Porteous : My apologies.

CHAIR: Thank you very much for your time and your contribution. I am sorry that we have run out of time. We could have chatted all day. Thank you very much for appearing before us today.