The evolution of the institution of marriage has involved a complex interplay of social, political, religious and financial factors. In the first decade of the 21st century, as part of a global trend, countries have increasingly passed laws enabling same-sex marriage (SSM). However, in Australia, the matter still remains a contentious issue. As it stands, the current legal regulatory regimes governing same-sex relationships (SSRs) in this country may be described as out of step with those of the rest of the world, wholly inadequate and largely discriminatory.
In 2004, the Australian federal government amended the Marriage Act to insert the definition of marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’ This legislative change took place following a wave of legalisation of SSM in overseas jurisdictions as well as increased judicial attention toward the recognition of SSRs in both the United States and Canada. In response to the proliferation of SSM rights in overseas common law jurisdictions, SSM, and the recognition of SSMs validly contracted overseas, were proscribed in Australia. This legislative change, at the time endorsed by both sides of the parliament, was partly influenced by a number of SSR couples that, having travelled to Canada to marry, later lodged applications to the Family Court of Australia to have their marriages legally recognised in Australia. Described by the Honourable Alistair Nicholson, a former Chief Justice of the Family Court of Australia, as ‘one of the most unfortunate pieces of legislation that has ever been passed by an Australian Parliament,’ this amendment was considered to be largely out of step with global legal trends and constituted a dramatic setback for the LGBT equal rights movements in Australia.
Since this event, 18 bills relating to marriage equality or the recognition of overseas SSMs have been introduced into the federal Parliament without successful enactment. Despite stagnation on the policy problem of SSM law in Australia, the debate on SSM has been considerably reinvigorated in recent times. This has been especially evident since the 2015 Irish referendum result and decision of the United States Supreme Court in favour of SSM as well as the raising of SSM as an election issue in the 2013 domestic federal election. Now supported (at least personally) by the leaders of both major political parties, discussions in relation to finally legalising marriage equality in Australia have been significantly amplified and are receiving considerable public attention. Although the means by which this policy problem is to be addressed is yet to be determined, a change in the current mode of legal regulation of SSRs has never, in the history of Australian law, appeared more reasonably within reach.
The Regulatory Space of SSM
The institution of marriage has been central to the cultural, religious and social organisation of human beings since time immemorial. Despite being a formally recognised legal institution, it is not unusual for conceptions of marriage to be coloured by traditional cultural, social or religious understandings. For this reason, conservative religious ideologies and traditionalist views of society that consider homosexuality a threat to traditional values have historically played a significant role in the opposition of the legalisation of SSM. Hence while the legal regulation of marriage remains squarely in the hands of the secular state, traditional conservative opponents of SSM regularly defer to conservative social, religious and cultural understandings in justification of their position.
The Current Regulatory Regime
In the last decade following the 2004 amendments, there have been significant legal developments in SSR and family rights. The most important of these policies include the 2008 reforms, which provided for legal recognition of same-sex couple (SSC) relationships for purposes such as pensions, superannuation, taxation and social security. These reforms responded in part to the Australian Human Rights and Equal Opportunity Commission’s 2007 Report, which identified 58 Commonwealth laws that discriminated against SSCs. Accordingly, the legal rights of married and non-married couples as well as heterosexual and SSCs are now largely equal. By accommodating SSCs through a policy of affording them access to ‘de facto’ relationship status, the government effectively recognised SSR status as equal to non-married heterosexual couples in the eyes of the law. The residual differences are: first, that non-married couples may need to prove the existence of their relationship in order to access rights and secondly, that SSCs are excluded from the opportunity to be married. Therefore, SSCs may experience more difficulty accessing their legal rights than heterosexual married couples. While these laws, in part, are seemingly successful in addressing the failure to afford SSCs the default legal protections of marriage, SSR regulation remains a site for differential treatment and discrimination of opposite and SSCs.
Framing the SSM Problem
Prior to the 1990s, negativity towards homosexuality and lesbian and gay civil rights was the dominant viewpoint in Western societies. In recent times, however, issues relating to gay and lesbian rights are becoming increasingly prominent with negative attitudes notably ameliorating. In the context of a global trend toward SSM legalisation, recent informal surveys have shown that Australians are in the midst of a cultural shift. 85% of Australians have been shown to support federal laws protecting Australians from discrimination on the grounds of sexual orientation and gender identity. Additional informal surveys commissioned by lobby group, Australian Marriage Equality, have also detailed the growing support for SSM in the wider Australian community- increasing from 57% in 2007, to 60% in 2009, 62% in 2010 and most recently 72% in 2016. Irrespective of increasingly affirming attitudes towards SSM in Australia, certain arguments by ‘for’ and ‘against’ groups continue to dominate the framing of the issue.
The ‘Against’ Campaign
Traditional conservative opposition to SSM argue, on religious grounds, that sexual relations between persons of the same sex are unnatural based on notions of natural reproductive purpose. Similarly, opposition is grounded in notions of diminishing the institution of marriage, the degradation of the family unit and the subsequent crumbling of the nation. Where the social and legal institution of marriage has come to represent stability of society and nation, SSM is perceived as a threat to the established order. This argument was heavily represented in submissions from opponents of SSM during the Senate inquiry into a proposed marriage equality bill in 2009. It was argued that marriage is “the foundation of the family and the family is the foundation of society. If we strengthen marriage, we strengthen family and we strengthen the community.” This viewpoint relies on ‘natural law’ arguments which consider the institution of marriage as fixed, unchangeable and strictly defined as being between a man and a woman.
The ‘For’ Campaign
Advocates for SSM utilise arguments grounded in principles of equality, non-discrimination and human rights- rather than on religious principles and tradition- and categorically reject ‘natural law’ arguments. In response to the above assertions, proponents of SSM note that marriage is not, and has never been, a static institution. They cite repeated changes to marital law, most notably with the introduction of equality for women within marriage, no fault divorce, and the criminalisation of rape in marriage. Furthermore, they draw on the paradox of the abolishment of discriminatory marriage laws based on race, when current laws preventing SSM discriminate based on sexuality. Moreover, supporters of same-sex marriage assert that the benefits of marriage, such as a stable family life for example, should be available to all couples so as to provide the maximum benefit to their relationships, and to society at large. SSM supporters also commonly espouse a libertarian stance that seeks to question the right of the government to interfere with private matters of individual conscience while also decrying the exclusion of SSM on the basis of anachronistic traditionalist views of society.
Proposed Changes to the Regulatory Regime and the Need for Government Action Mary Lyndon Shanley has presented that liberty is central to the question of marriage because, in legally stipulating who may and may not marry, the law restricts the freedoms of those who are excluded from that choice. Hence while the post 2008 reforms are indeed laudable additions to the legal regulatory regime of SSRs, the inability for SSCs to marry remains a final bastion of discrimination. Civil union schemes (such as de facto relationship recognition) as alternatives to marriage are unacceptable placations and serve as poor substitutes. The failure to open up the institution of marriage to SSCs is discriminatory and offensive, and as Justice Lafome of the Ontario Supreme Court has noted, “any ‘alternative’ to marriage . . . simply offers the insult of formal equivalency without the promise of substantive equality.” While it may have its practical benefits, this “same-but-different” regulatory policy sends a clear message that SSRs are not as equally valued as married couples in the eyes of the law and serves to perpetuate discrimination in Australian communities. Given the nature of marriage as a state regulated institution, it is incumbent upon the federal government to act. While the ‘for’ and ‘against’ campaigns will be waged by public interests groups, SSM can ultimately only be achieved via enactment of law by the federal parliament, who ought to champion principles of equality and legal parity by supporting the SSM movement.
SSM remains a salient and contentious issue in contemporary Australia. In this day and age, there should be no civil institution reserved only for heterosexuals any more than an institution should be reserved exclusively for groups according to their race. It is therefore imperative that the Australian government aligns with international trends by legalising SSM, and that the amendment is made in the least harmful manner possible. REFERENCES
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Image: Indigo O'Rourke