Chapter 3
The case for legalising same-sex marriage
3.1
The case for allowing the recognition of same-sex marriage under the
Marriage Act took a number of angles, some of which overlapped. This chapter
aims to convey a flavour of the main arguments put to the committee, the
majority of which are premised on the idea that two people who are willing and
able to make a life-long commitment to each other in the eyes of society and
the law, should not be stopped from doing so merely because they are the same-sex.
It is to this primary argument of the need to ensure fundamental equality that
the chapter now turns.
Equality
3.2
Perhaps the most prominent argument put by those in support of the Bill
centred on the need to treat people as equals, regardless of their sexual
preference, and to recognise and respect the equality of a commitment between
people of the same-sex and people of different sexes.[1]
A number of witnesses referred to the recent reforms by the Government aimed at
redressing the inequities, and all were in support of them. However, witnesses
in support of the Bill predictably went on to argue that the reforms did not go
far enough.
3.3
Dr Paula Gerber from the Castan Centre for Human Rights Law, for
example, submitted that:
There have recently been a suite of reforms that have removed
discrimination against gays and lesbians in the areas of taxation,
superannuation and social security—the last bastion is marriage. In accordance
with international human rights law, principles of non discrimination and
equality, this too must be addressed. Civil unions and domestic partner
registries are not sufficient. They are the equivalent of the ‘separate but
equal’ response in America in the era of segregation, and we know from that
time that that does not result in uniform enjoyment of human rights by all.[2]
3.4
Mr Gardiner, Vice President of Liberty Victoria, agreed and discussed
some of the possible consequences of inequality for same-sex attracted people,
including fostering a climate of homophobia and inviting all the negative
personal and societal consequences of inequality:
Of course, as has already been mentioned, the Australian
parliament, the current government, introduced a huge raft of excellent moves
towards equality in 2008, amending some 84 or 85 federal laws to introduce
equal treatment for same-sex couples, leaving only one glaring hole in the
edifice of equality. That has real consequences. As our submission points out...the
ban on same-sex marriage authorises discrimination...Young same-sex attracted
people...are harmed by the environment that authorises discrimination. There are
pressures on young gay people growing up in a society which is not merely
largely heterosexual but heterosexist, which says, ‘If you are not heterosexual
then you are unworthy.’ That is difficult. The existing marriage law, with its
insistence on inequality, creates an environment, as we say in our submission,
which authorises discrimination and which harms young people...Those young people
are pushed in the direction of depression and, indeed, suicide, by the
environment which is created by things like this marriage law.[3]
3.5
Dr Adiva Sifris, also representing the Castan Centre, agreed that
marriage imbues a sense of legitimacy, and reduces discrimination against
same-sex couples.[4]
Citing the raft of legislation passed by the Commonwealth in 2008 which
eliminated discrimination against same-sex couples, Dr Sifris applauded the
measures already undertaken by the Government but invited further action:
You can already see the flow-on effects of [the 2008
measures]. A recent Galaxy poll showed that the number of same-sex marriages
had increased by three per cent from two years ago. As the law changes, it
starts to pull society along with it.[5]
Marriage and family as dynamic institutions
3.6
Proponents of the Bill argue that marriage is an institution which has
evolved markedly over time.[6]
The Law Council of Australia observed that:
Legal reform of this nature is not unique, it is the natural
progression of rights development as it accords with changes in social practice.[7]
3.7
The Australian Coalition for Equality submitted that:
The institute[ion] of marriage has changed over [the] 200
year history of Australia. No longer is marriage allowed between men and a 12
year old girl. Consenting adults may now choose who their partner for life is,
rather than being forced into an “arranged marriage”. Women are no longer
denied legal rights nor treated as property during a marriage transaction of business.
Couples of mixed-race may now be married and recognised by the law. Marriages
between people of Aboriginal heritage are no longer restricted as they were previously.
People from differing religious backgrounds are no longer frowned upon by society
if they enter into a commitment for life. Society in Australia now recognises and
accepts divorce.[8]
3.8
In its supplementary submission to the inquiry, Australian Marriage
Equality submitted that:
In the past, defenders of absolute monarchy, established
religion and the second-class status of women, sought to place these forms of
oppression beyond change by claiming some divine, natural or historical mandate
for them. However, in each case the progress of history revealed these
institutions to be purely social arrangements. Discrimination in marriage is no
different. The future will show that this discrimination is mandated neither by
nature nor by history and that its removal is both inevitable and desirable.[9]
3.9
One example of that evolution, cited several times through the course of
the committee's hearing, was the abolition of the prohibition on interracial
marriage in the United States in 1967.[10]
Marriage between the races had been outlawed in some states until that time, a
practice now widely accepted as a violation of fundamental human rights. Mr
Rodney Croome, representing Australian Marriage Equality (AME), observed that:
Marriage, like every social institution, changes to keep pace
with changing social attitudes, and it is clear from the evidence we have heard
this morning that a majority of Australians believe marriage today can
encompass same-sex relationships. As I said earlier, Australian public policy
is heading in the same direction with the recognition of same-sex de facto
marriages. Marriage can and should change to reflect what we understand
committed, loving relationships to be. If it does not, it becomes irrelevant
and fossilised. In my mind, what degrades and demeans marriage is the fact that
we keep it petrified at a certain time rather than allowing it to change.[11]
3.10
Reverend Nathan Nettleton was one of the significant number of witnesses
who discussed the relationship between marriage and the raising of children,
and its implications for the validity of same-sex marriages. Reverend
Nettleton, a Baptist Pastor appearing in his private capacity, put his view
this way:
I would support the view that many marriages involve
procreation, but I am yet to hear from the groups who argue that that we should
outlaw postmenopausal marriage. It seems to me to be inconsistent. There are
many marriages that we know where there is no possibility of children and we
still support those marriages...My view is that procreation is a part of some
marriages, but is not one of the conditions that define a marriage as a
marriage.[12]
3.11
Australian Marriage Equality agreed, submitting that:
There is no intrinsic association between marriage and the
raising of children. There is no evidence that children fair worse when raised
by two parents of the same-sex. Indeed, the children raised by same-sex
partners benefit from marriage equality. Therefore, there is no basis upon
which to assert that children will be harmed by same-sex marriage.[13]
3.12
Reverend Dorothy McRae-McMahon also appeared in a private capacity, but
expressed her view on the relationship between marriage and children from a
religious perspective as follows:
I suspect that, from church to church, very often the
procreation issue is raised, and all of us have responded to that one, in that,
although that is of course part of some marriages, it cannot be part of all
marriages, even heterosexual marriages. So it cannot be sustained, I do not
think.[14]
3.13
The committee heard that the constitution of families, too, has changed
over time. Dr Sifris submitted that:
The first thing is that the family is and was regarded as the
foundation of society. Historically the family was based on marriage, and it
was for this reason that the state has furiously protected the institution of
marriage. But we need to understand that, in 2009, families are not what they
were even 20 or 30 years ago. Families come in diverse forms. I have some
statistics here from the Australian Bureau of Statistics which basically set
out the different kinds of family forms. One can see that one-parent families
and couple families without children are on the increase, whereas couples with
children are on the decrease. On the other hand, de facto couples—people who do
not marry—have increased from less than six per cent of all couples in 1986 to
nearly 15 per cent now. Our whole concept of family in 2009 is very different
to what it was 20 years ago.[15]
3.14
Even if the presence of children is accepted as important in the
definition of marriage, the committee notes evidence cited by Australian
Marriage Equality that increasing numbers of same-sex couples are choosing to
raise children. Research from Professor Jenni Millbank in 2002 found that:
Surveys of gay men in the USA have suggested that around 10%
of gay men are parents. American and Australian surveys of lesbians and NZ census
data suggest that between 15-20% of lesbians have children. Australian surveys
suggest that this proportion is likely to increase in the next 5 years as many
lesbians also indicate that they are planning to have children in the future.[16]
Commitment
3.15
A number of opponents of the Bill referred to same-sex relationships not
enjoying the same levels of monogamy as heterosexual marriages.[17]
It was argued that there is considerable difficulty in judging the comparative
levels of commitment between heterosexual and same-sex relationships, primarily
because the latter are unable to marry, putting their relationships in a
different legal and societal category from married heterosexuals. This, in
addition to the residual homophobia experienced by many gays and lesbians,
renders a direct comparison of levels of commitment, often expressed by
reference to the average length of relationships, inaccurate and unfair.
3.16
Mrs Shelley Argent, representing the Parents and Friends of Lesbians and
Gays (PFLAG), was one witness who disputed the view that comparison between
heterosexual and same-sex unions was fair or helpful. Mrs Argent observed that
same-sex relationships:
... are often coming from a situation where they are already
living under pressure. A lot of them do not have family support and their
partners are not welcome in the family home, so of course that is going to put
pressure on the relationship. If you have to go home alone and you cannot take
your partner with you at Christmas time, of course that puts pressure on the
relationship. Then you also have this societal expectation, even from some
parents, that the relationship will not work because it is a same-sex one. I
just think that is insulting...It is all about respecting them as individuals and
respecting their relationship.[18]
3.17
Notwithstanding the difficulties in gauging relative levels of
commitment, Ms Dane spoke to research from jurisdictions which allowed same-sex
marriage which suggested that marriage enhanced the level of commitment felt by
same-sex couples. Ms Dane reported that:
Not surprisingly, studies involving countries and US states
that have extended the marriage right show marriage benefits same-sex couples
in much the same way as it has been shown to benefit opposite-sex couples. For
example, a recent study by Badgett et al involving 552 married same-sex couples
in Massachusetts found that close to 75 per cent felt that marriage had
increased their commitment to their spouses. Seventy-five per cent felt more
accepted by their community as a result, including by their siblings and
parents. Of those living with children, over 90 per cent felt that their
children were happier and better off as a result of their marriage.[19]
3.18
Rev. Nettleton submitted that the argument made by opponents of same-sex
marriage about levels of commitment disclosed an element of internal
inconsistency:
To criticise the homosexual community, as many do, for its
alleged promiscuity while at the same time working to deny them access to the
social structures that encourage and support fidelity for the rest of us is
surely disingenuous.[20]
Same-sex couples' desire for marriage
3.19
Opponents of the Bill argued that the call for marriage among same-sex
attracted people is coming from only a vocal minority within the gay community.[21]
In response, Ms Dane observed that:
If 10 per cent or 20 per cent of same-sex couples wanted to
be married, that should be enough because it is about having the choice. The
same would apply if, all of a sudden in time to come, only 30 per cent or 40
per cent of heterosexual couples chose to marry. Would that be a reason to
abolish marriage? People still need a choice. So I have not really gone down
the path of the numbers for that argument; I have only stated this to try and
dispel the myth out there that I frequently hear that same-sex couples are
promiscuous and do not really want to marry, and that is not true.[22]
3.20
Dr Sifris agreed with Ms Dane:
A recent study shows that a lot of same-sex couples want that
option to marry. Once again it comes back to options and choices. If
heterosexual couples have the option to marry, the option to register, the
option to do nothing, same-sex couple should have that same choice. It is a question
of discrimination. Options and choices.[23]
3.21
The committee notes evidence from the NSW Gay and Lesbian Rights Lobby of
a 2006 survey conducted among gay and lesbian people living in NSW which found
86.3 per cent of respondents were in favour of gay marriage.[24]
A similar survey conducted by the Victorian Gay and Lesbian Rights Lobby in
2005 found that 79.8 per cent of lesbian, gay, bisexual, transgendered and
intersex people surveyed wanted same-sex marriage to be available.[25]
3.22
A 2009 Galaxy poll was also brought to the attention of the committee,
which found that 60 per cent of Australians supported giving same-sex couples
the right to marry.[26]
3.23
Many same-sex couples submitted their personal views about marriage,
emphasising that they saw themselves as being the same as any other couple
intending to marry, including their desire for formal recognition of those
relationships in front of their friends and family. For example, the Hon. Ian
Hunter MLC submitted that:
I want to get married. I know that I could travel overseas and
do it, but like most people, I want to celebrate my love and my life surrounded
by my friends and family.[27]
3.24
Mr Michael Burge was in a similar position, submitting that:
While our marriage ceremony was very special to us, it was
very difficult to involve our wider circle of friends and family, since the
closest geographical place for us to marry was an international flight away.
The cost of travelling to New Zealand was prohibitive to most people, and we
did not expect anyone to spend a lot of money to be at our wedding.[28]
3.25
Family members of same-sex couples also took the view that same-sex
couples were no different to those of opposite sex. These views are well
highlighted by Ms Annette Naylor, who submitted that:
...Both of my daughters are in relationships and are engaged to
their respective partners. As a mother, I am very fortunate that they have each
found such wonderful partners, who love and respect them...I have always loved
and treated both of my daughters equally. They have both grown into beautiful,
strong and intelligent women, whom I am extremely proud of. However, the eyes
of the law currently do not see one of my daughters as equal. Despite the fact that
I attended each of my daughter’s engagements last year, one of my daughters
cannot get married. The reason why my eldest daughter cannot get married is
because she is gay and in a same-sex relationship. She is no different and no
less of a person than my youngest daughter. Her sexuality does not define who
she is and when I look at her, I do not see “my gay daughter”... I see my
daughter. Her relationship is no less loving, no less committed and no less
equal to her sister’s relationship. How will allowing my eldest daughter to
marry undermine my youngest daughters’ marriage? As a mother, I want to attend
both of my daughter’s weddings. I want to be there for both of my girls during
one of the most significant moments in their lives. I want them both to be
treated as equals in the eyes of the law, just as they should be...[29]
Broader role and benefits of marriage
3.26
Proponents of the Bill spoke of their desire to make available the
benefits of marriage to themselves and their loved ones, and argued that the
benefits extended further than the couple themselves.[30]
Mrs Argent submitted that:
A marriage ceremony puts the same-sex relationship into a
context everyone is familiar with and has the potential to transform what the
couple means to each other in the eyes of the family, friends and society in
general. For many parents it will also take the sting out of their son or
daughter identifying as lesbian or gay, because one of the main concerns
parents experience is the loss of the tradition of having the marriage option
for their child. For many this is a huge source of disappointment. For others
it can also help the family come out and come to terms with their sexual
orientation in a positive setting. Supporting friends and family bearing
witness to the ceremony certainly helps to strengthen the couple’s bond and
show the relationship as meaningful in society.[31]
3.27
Mr Croome added that:
[M]arriage is an institution through which partners find
connection and belonging not only with each other but within their families and
within their communities. That is why marriage traditionally and conventionally
creates kinship. We have terms like brother-in-law and mother-in-law. It is why
conventionally at wedding ceremonies those present are asked if they assent to
the marriage. It is not simply about the partners, as important as their bond
is. It is about a public recognition of that and the creation, like I said, of
connection and belonging. Marriage provides us with a universal language of
love and commitment.[32]
3.28
Mr Tuazon-McCheyne agreed, and spoke from his experience as a marriage
celebrant:
I...have married over 1,000 Australian couples. They all
receive a blessing from their community and their family and friends when they
have their wedding ceremony. The most important thing about a wedding day, and
the reason I do it, is that the 80 to 150 people who are there are the key
people in their lives. They want to give love and energy to that couple and
give them a boost on their journey and they want to celebrate what they have.
We do not get that many great days in our lives, and the wedding day, the
marriage day, is one of those days. That is one of the reasons why people get
married, and that is one of the reasons why we got married.[33]
3.29
In addition to the benefits felt by the couple, their family and
friends, the committee heard that marriage as an institution stood to gain from
same-sex marriage. Australian Marriage Equality submitted evidence that
marriage equality may solidify the institution of marriage based on an
examination of places where the formal recognition of same-sex relationships
has a relatively long history. Citing Denmark, Norway and Sweden marriage rates
have increased by as much as 30% and divorces are steadily decreasing in number,
drawing Australian Marriage Equality to conclude that the example of
formally-recognised same-sex partners seems to have helped inspire an
increasing number of young heterosexual couples to marry. Australian Marriage
Equality also cited the Wall Street Journal in an October 2006 opinion article
on same-sex marriage, in which its assessment of the Scandinavian experience
was that: 'there is no evidence that allowing same-sex couples to marry weakens
the institution. If anything, the numbers indicate the opposite'.[34]
3.30
In seeking to contrast the benefits of marriage over those associated
with civil unions, Mr Croome concluded that:
The repeated complaints of partners is that their status as
civil union partners is not recognised or understood by key agencies—health
insurers, schools or even government agencies—and certainly not in social
discourse by their families, friends and neighbours. So while civil unions
might grant those partners equal entitlements as married partners in practice
they are often denied those entitlements by authorities who are ignorant of
what a civil union is or who are deliberately discriminatory... but many of the
partners I have spoken to say that, even though they are guaranteed by that
registry the same spousal rights as married couples in Tasmanian law, often
that is not respected by state authorities, by health insurers, by schools or
whomever it might be simply because there is not an understanding of what that
means.[35]
Human rights and responsibilities
3.31
One of the key arguments for legalising same-sex marriage was its
protection under Australia's international human rights obligations. Australia
is a party to numerous human rights treaties, one of which is the International
Covenant on Civil and Political Rights (ICCPR). Whilst the ICCPR does not
contain an express right for same-sex marriage, it does have a prohibition on
discrimination. Article 26 expressly prohibits discrimination, which is any
distinction, exclusion, restriction or preference on any ground which has the
purpose or effect of nullifying or impairing the enjoyment or respect of human
rights by all on an equal footing. Dr Gerber submitted that the Toonen case stands
for the principle that discrimination includes discrimination on the
grounds of sexual orientation, meaning that discrimination through excluding
people from the right to marry solely based on sexual orientation is a breach
of article 26 of the ICCPR.[36]
3.32
The Australian Human Rights Commission took the same view of
international law, submitting that:
Equality is a fundamental principle of international law. The
Commission believes that a human rights analysis based on the principle of
equality supports the recognition of same sex marriage.[37]
3.33
Dr Gerber went on to argue that, in respect of couples with children,
Australia's international obligations compel the recognition of a relationship
between a child's parents on the basis that to do so is in the child's best
interests:
Same-sex couples are now having children. International human
rights law recognises that the family is the fundamental group unit of society
and deserves special support and protection. Article 2 of the Convention of the
Rights of the Child protects children from discrimination on the grounds of
their parents’ status, and that status includes their sexual orientation. The
UN Committee on the Rights of the Child has expressly stated that it is concerned
that discrimination based on the sexual orientation of the parents impacts
negatively on the children. The Convention on the Rights of the Child also
requires that any decision that impacts or affects children must be made with
the best interests of the child being a primary consideration. Prohibiting a
child’s parents from marrying is not in the best interests of the child. All
children deserve the chance to grow up in a stable and loving home with parents
in a relationship that is publicly recognised and respected. There is extensive
empirical research...that says that children raised in same-sex families are not
disadvantaged by the fact that their parents are of the same sex, but what will
disadvantage them is when those parents are discriminated against purely on the
basis of their sexual orientation.[38]
Recognition of marriages conducted overseas
3.34
A related, though separate issue is the question of whether to recognise
same-sex marriages validly solemnised overseas. Such marriages are not
currently recognised by Australia, but the Bill would reverse this. Among those
in support of the Bill, the proposal received strong support.[39]
The Law Institute of Victoria submitted that Australia was obliged under the
Hague Convention to recognise same-sex marriages, on the basis that the
Convention's purpose is to 'facilitate the celebration of marriages and the
recognition of the validity of marriages’ between Contracting States, and that it
was generally accepted that a marriage ‘validly entered into under the
law of the State of celebration or which subsequently becomes valid under that
law shall be considered as such in all Contracting States’.[40]
3.35
While the Institute conceded that the Hague Convention does not define
marriage, it informed the committee that marriage should be interpreted in its
broadest, internationalist sense, as required by Article 5 which provides that
the ‘application of a foreign law declared applicable by this Chapter may be
refused only if such application is manifestly incompatible with the public
policy (ordre public) of the State of celebration’. The LIV concluded
that, given 'public opinion in Australia is in favour of recognising same sex
marriages...in the LIV’s view, [there is] no international legal basis upon which
Australia can justify its non recognition of foreign same sex unions.[41]
3.36
Mr Gardiner argued that Australia was under an obligation to recognise
such unions, and that:
...[T]he Hague convention should be obeyed, not violated. There
are couples from Canada, from the United States, from South Africa, from
Belgium, from the Netherlands, from Sweden and Norway, and soon from Albania
and others...who are validly married under their laws and who have a right under
the Hague convention to expect that we will acknowledge their marriage if they
come here, and that should be done, too. Repealing section 88EA of the Marriage
Act is quite independent of the question of whether people can get married
here.[42]
3.37
Dr Gerber concurred that Australia was in breach of its obligations,
adding:
We are clearly in breach of that treaty. We even recognise
legally performed polygamist marriages from Saudi Arabia and other such
countries out of respect for our international obligations under the Hague
convention. Professor Hilary Charlesworth referred to Australia as being ‘Janus
faced’. We present one face to the international community as an upholder and
respecter of international human rights law by ratifying all these treaties and
saying we are a worthy, human rights respecting country, and we are seeking a
seat on the UN Security Council. But domestically it is the opposite in many
cases, with children in immigration detention centres and our treatment of
Indigenous Australians, and you can now add to that our treatment of sexual
minorities. Internationally we are saying: ‘We are going to uphold these laws.
They are good, just laws; we agree with them,’ but domestically we are ignoring
them.[43]
3.38
Dr Gerber also pre-empted any argument that recognition of marriages
conducted overseas would provide a loophole through which Australian same-sex
couples could be married offshore and be recognised at home, pointing out that
many countries require at least one party to a marriage to be a resident of
that country before the marriage can take place.[44]
3.39
The adverse affects of allowing same-sex marriages offshore, yet failing
to recognise them within Australia, were set out by a number of witnesses, of
which Australian Marriage Equality was one:
First, for most of these couples, travelling overseas to
marry is not their preference. They would marry in Australia if it were allowed
because a) they would be closer to family and friends, b) a marriage at home is
cheaper and much easier to arrange, and c) they would not risk the legal and
financial complications associated with marriage and/or divorce in other
jurisdictions (for example, non-residents can marry in Canada but only
residents can divorce, and unlike Australia, divorce in Canada is fault-based)...Secondly,
after going to so much trouble to marry overseas, couples have no legal recognition
of their legal status or solemn vows when they return to Australia. This is deeply
offensive to these couples...[45]
3.40
Australian Marriage Equality also points to the distress felt by
foreigners moving to Australia from jurisdictions in which they have lived as
part of a married couple in the eyes of society and the law, but whose
marriages are not recognised under Australian law.[46]
Certificate of non-impediment
3.41
In addition to Australia declining to recognise same-sex marriages
conducted overseas, the committee's attention was drawn to an apparent policy
of the Government to decline to issue a certificate of non-impediment to
same-sex couples who wish to marry overseas. These certificates are usually
required by foreign governments before a marriage can be solemnised. Australian
Marriage Equality submitted that:
Since the end of 2005 we have received a steady stream of
complaints from Australians seeking to marry their same-sex partners overseas
for whom the Government’s refusal to provide a CNI has caused immense
frustration...We understand that the Dutch Government has responded by waiving the
CNI requirement for Australians entering same-sex marriages. We have been told
the only other nationality it does this for is Zimbabweans...our understanding is
that CNIs are issued to establish that there is no impediment to an Australian
marrying overseas, not to establish there is no impediment to the recognition
in Australia of the marriage they intend entering. This is confirmed by the
documentation publicly available. For example, the application form for an
Australian CNI asks the applicant to confirm they are not already married to
another person in Australia. It does not ask if they seek to enter a same-sex
marriage... Our understanding of the role of CNIs is also supported by the
international experience. Other governments request CNIs from Australia to
ascertain whether there are impediments to them solemnising marriages involving
Australian citizens. Chief amongst such impediments are whether the Australian
citizens in question are already married in Australia and are of marriageable
age. Foreign governments are aware of the discriminatory nature of Australian
law, and are not seeking further information about such discrimination because
it is not relevant to them.[47]
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