Can a business refuse service to a same-sex marriage couple?

On Thursday 7 December 2017, the House of Representatives voted overwhelmingly to legalise same-sex marriage in Australia.

It seems to be a law of nature that weddings, and the wedding industry, are a never-ending snowball effect. “Just a simple ceremony” ultimately grows to involve florists, caterers, photographers, wedding planners, venues, cake makers and an army of other service providers.

Will it be the same for same-sex weddings, or may businesses refuse to provide services? And if so why would they want to, and is it legal for them to do so?

The hard and fast answer to this question is that businesses may not refuse, with certain exceptions. The future, though, is still complicated.

The “no” part

The Sex Discrimination Act 1984 (SDA) clearly makes it unlawful to discriminate against similarly situated people because of sexual orientation, gender identity or intersex status. Same-sex couples are protected from discrimination under the law’s definition of “marital or relationship status”.

The SDA clearly predates the legalisation of same-sex marriage in Australia, but the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 appears to adopt the same broadly-protective approach. Parliament specifically rejected amendments meant to safeguard freedoms of speech and religion for gay marriage opponents, though those issues may be considered later. The government has appointed a panel to examine how to safeguard religious freedoms once single-sex marriage is a reality in Australia.

The exceptions

The Marriage Amendment Bill allows churches and religious organisations to boycott same-sex marriage without violating Australian anti-discrimination laws. Existing civil celebrants can also refuse to officiate at same-sex marriage, but celebrants registered after same-sex marriage becomes law would not be exempt from anti-discrimination laws.

Existing anti-discrimination laws also permit businesses to refuse service to anyone based on dress code, disruptive behavior, legal requirements or for safety reasons. A wedding venue might refuse to permit the premises to be used for a nude wedding or where it would be required to serve alcohol to minors or if the ceremony involved swimming with sharks, for example.

A specific history with a given customer, non-payment or disruptive behaviour, might also permit a business to refuse to provide services to that customer. The incident would have to involve that customer, rather than a class of customers.

Looking to the future

Social change comes after a long, difficult battle. Although the postal ballot demonstrated overwhelming support for same-sex marriage throughout Australia, considerable variation exists among different demographic groups. It would hardly be surprising to see conflict at that margin. Push-back is a near certainty.

Many think it unlikely that the question will attract the political fervour or litigiousness that the U.S Supreme Court’s “cake maker” case has. Although each nation has a long and tortured history with discrimination, it would be perilous to extrapolate from one country’s social history to another’s.

Finally, there are practical considerations on both sides. Most businesses work to expand a customer base, not to exclude people. It is hard to explain why picking a fight over a wedding would be a good business strategy.

On the other side, most people wanting to celebrate a marriage look for a joyous and memorable celebration – a toast to the future, not a lawsuit. In the longer run, when single-sex marriages are not unusual, the market may sift this out.

The Marriage Amendment Bill 2017 provides a path by which issues of the protection of religious liberty may be examined, but the panel that will examine these questions will convene only after the law takes effect. In the mid-near future, this is the saucer within which passions may be expected to cool.

Rolf Howard, Managing Partner, Owen Hodge Lawyers

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