Addressing concerns about state same-sex marriage legislation

This statement was issued by the TGLRG on 5.5.05.

A large number of concerns have been raised about state same-sex marriage legislation. Let’s have a look at them.

~ "Separate and unequal"

This catch cry is a reference to the fact that state same-sex marriage legislation is only for same-sex couples, and that it only applies to state, and not federal, law.

State same-sex marriage legislation only applies to same-sex couples because the states cannot legislate for different-sex marriage. If they did they would be duplicating federal law and that would be unconstitutional.

It only applies to state law for the same reason. If the states sought to legislate in areas of law under federal control, like income tax, social security and the military, they would be exceeding their constitutional powers.

So do these constitutional limits on the scope of state same-sex marriage law make it a waste of time?

There are plenty of areas in which same-sex couples have rights at a state level but not federally.

In most states same-sex couples have many of the same rights as heterosexual de facto couples. In federal law they have virtually none.

In state law LGBT people are protected from discrimination in employment, housing and education. In federal law there are hardly any such protections.

Does this mean we are being treated "unequally" and that we should not have fought for state reform?

Of course not. State reform has been important in itself, and sooner or later the disparity between state and federal laws will force reform of the latter.

But what about attacks on state same-sex marriage legislation as "separate".

Civil union schemes in Britain, New Zealand, Denmark, France, Vermont, Tasmania and numerous other places can be accused of the same thing.

They give same-sex couples the opportunity to register for the same rights as married couples, without allowing them to call their union "marriage".

There are also other examples where the nexus of Australian federal and state law means same-sex couples are dealt with "separately".

The most obvious is that under state de facto relationship laws different-sex couples can access the federal Family Court to settle property and custody disputes, but same-sex couples have to resolve their disputes in the state Supreme Court.

Again the question is, should we not support state de facto relationship equality because when these relationships end different and same-sex couples are streamed into separate courts?

No, we continue to fight the discrimination in federal law that makes this necessary.

Given these examples, I don't accept that the "separate and unequal" argument is fair. But even those who believe it is, have to concede that the separation and inequality that comes with state same-sex marriage law is nothing compared to how separate and unequal LGBT people are under the law now.


~ State marriage equality is a symbolic reform with no material benefits

Opponents of state same-sex marriage legislation claim that it’s a waste of time because there are no immediate, practical or material benefits.

In those states like NSW where same-sex couples are still denied important spousal rights, marriage would bring these rights automatically.

But for the sake of argument let’s assume that same-sex couples could access these rights through the equalisation of de facto laws in every state, something I admit is more likely to occur before states enact same-sex marriage legislation.

In this situation would state same-sex marriage legislation be purely symbolic and therefore somehow superfluous?

The comparison critics of same-sex marriage legislation make is with say superannuation reform that will ease the financial burden on same-sex couples, or parenting reform that will provide parents and children with emotional and legal security.

I think a better comparison is with the reform of age of consent laws so that young gay men are treated equally, or, for that matter, the decriminalisation of all consenting, private, adult gay sex.

What were the material benefits of fighting for either of these reforms at a time when no gay men were actually being gaoled?

Were those laws purely symbolic and campaigns to change them a waste of time?

Of course not.

The reason for decriminalising adult gay sex was to remove the stigma that criminal status lumbered gay men with.

It was to remove a barrier to better public policy, better health programs, less discrimination, less violence.

They are precisely the benefits - de-stigmatisation, less governmental and social bias - that will flow from same-sex marriage.

Call these benefits symbolic or material, but either way they are very real.


~ We should be campaigning for federal marriage reform instead

It’s been nine months since the federal same-sex marriage ban was passed.

Have you heard or seen any serious discussion about the issue in the broadsheets or on TV chat shows?

Has any LGBT organisation been successful in convincing one federal MP to change their mind on marriage equality, or one mainstream non-government organisation to issue a statement of support for reform?

No, because the issue’s dead and no-one’s listening.

The only way to re-ignite debate on same-sex marriage in Australia, including the most important goal of equality in the Commonwealth Marriage Act, is to flag the power of the states to enact same-sex marriage laws.

Campaigning for state marriage equality isn’t a distraction from federal reform, it’s a step towards it.

The media coverage of the issue over the passed three weeks is all the evidence I need for this argument.


~ State same-sex laws will be difficult to pass, easily over ridden, and even if they are passed and not over ridden, their legitimacy will be contested in the High Court.

Yes, yes, yes.

So?

Should we not campaign for national sexuality and gender anti-discrimination laws because these laws have proven very difficult to achieve and already have equivalents in every state and territory?

Should the Keating Government not have passed the Human Rights (Sexual Conduct) Act in an attempt to over ride Tasmania’s former anti-gay laws because some states threatened to contest this law in the High Court?

Should the Northern Territory not have passed euthanasia laws because the Commonwealth intended to over ride them? Should the ACT not have passed same-sex couple adoption laws because the Commonwealth threatened to over ride them?

Sometimes law reform is right and necessary regardless of how long it takes, and how many enemies it accumulates along the way.

Indeed, the most important reforms often are the hardest to achieve.

The struggle for marriage equality in the US, Canada and Spain is raising up and bringing down governments, it is fracturing entire societies, and it is demanding untold sacrifices from those at the forefront of change.

Are we Australians about to baulk at a few legislative and judicial show downs?

I say, if it is to be a long drawn out process, fine. At least then the nation will have ample opportunity to discuss what marriage equality means, and come to accept the need for change.


~ Proposed state same-sex marriage legislation is poorly drafted, half-baked, homophobic and its constitutionality is contested.

Four lawyers were involved in the drafting of the Tasmanian Same-Sex marriage Bills. They were a mix of academics and court room advocates. Their combined legal expertise is unimpeachable.

There were several issues they, the Greens and the Tasmanian Gay and Lesbian Rights Group had to make policy decisions on. For example should state same-sex marriage laws rely on the Supreme Court to handle divorce proceedings or should a state Family Court be created. We went with the former, in the knowledge that these policy issues can be debated when the legislation is subject to a public inquiry.

As stated already, state same-sex marriage legislation cannot impinge on federal law if it is to be constitutional. This means if there is a potential conflict the state law must defer. For example, under state same-sex marriage legislation, a state same-sex marriages is automatically nullified if one party to that marriage then marries under federal law. The drafters of the legislation were not demeaning same-sex couples by inserting this clause. They are not "homophobic". They are simply acknowledging the reality that federal law prevails and that unfortunately it is homophobic.

Some critics believe that state same-sex marriage legislation should not be introduced until all the various views on its constitutionality have been sought out and aired.

Debate about the constitutionality of state same-sex marriage legislation will go on for a long time without resolution. It hinges on questions like was last year’s same-sex marriage ban meant to "cover the field" on marriage law, or just apply to federal jurisdiction.

The best hook for such a debate is the introduction of legislation that claims constitutional legitimacy. The issue then becomes, is there reasonable grounds to make this claim?

When acknowledged experts like Prof George Williams and Prof Kris Walker say there is, most reasonable supporters of equality would agree it’s time to act.


~ Australia is one nation and should have one marriage law

This argument was first put forward by NSW Premier Bob Carr.

Odd, given that his job depends on federalism and the opportunity that gives different states to make different laws.

What is there about marriage which makes it more a national concern than, say, education, health, housing, criminal law, traffic rules or any of the other matters on which the populations of the states express themselves differently?

If de facto relationship laws can be shaped by the different aspirations of the different states, why not marriage laws?

What Bob Carr was actually saying was "what has been should always be".

LGBT people do themselves a great disservice mimicking such a conservative position.


~ There should be more consultation with the LGBT community before state same-sex marriage legislation is introduced

Consultation makes more sense when you have something to consult about.

Give a community something concrete to discuss, a framework for debate, and that debate will be more focused and effective.

The other benefit of initiating an LGBT community debate through legislation that is drafted and introduced is that the debate thus sparked reaches LGBT people who are not part of inner-city ghettoes or networks.

There’s a big world beyond the 2010 postcode area and the introduction of this legislation will help to access it.

I might have more sympathy for this view if it was put forward by supporters of the principle of state same-sex marriage legislation. That it is only heard from people with a history of scepticism towards marriage equality leads me to suspect that when they say "consultation" what they mean is they want more opportunity to obstruct, delay, pick holes, and muddy the waters.

A nuance on the consultation argument is that Sunday’s forum shows there is a high degree of concern from many ordinary members of the LGBT community about this legislation.

I don't think so.

Several organisations that represent significant slices of the LGBT community support this legislation.

In large part the people who were loudest in condemning state same-sex marriage legislation on Sunday night were members of the NSW Gay and Lesbian Rights Lobby and the AIDS Council of NSW. Some were also members of the ALP.

There are people who questioned the legislation who are not thus aligned, and some people thus aligned who support the legislation.

But most criticism was orchestrated by ring-a-rounds and prior caucusing.

This was anything but widespread community concern.


~ A debate on same-sex marriage in NSW will stir up opponents of LGBT human rights and "side-swipe" parenting reform.

Absolutely yes, and absolutely no.

As I've written elsewhere, conservative party strategists in the Australian states are keen to replicate George Bush and John Howard’s election victories by stirring up socially conservative and evangelical opposition to LGBT human rights.

Their goal is to corral these voters in key marginal seats and wedge the ALP.

They don’t care what the LGBT issue is.

If they can’t find a proposed reform to pillory they’ll turn their gaze to one that’s already in place.

It started earlier this year when the WA Liberals proposed a roll-back of equality in age of consent of parenting laws, and it’s coming to a state election near you.

In NSW the wedge might be sexual diversity in education, or the push for parenting reform. Whichever is selected you can be sure that a besieged NSW Government will go to ground on these vital issues.

One way to stop this happening is to give anti-gay groups another issue they can get all worked up about, an issue that will actually benefit from all the heat and fuss, marriage equality.

Even if I’m wrong and LGBT rights won’t become a state election wedge, you can be absolutely certain that the NSW campaign for parenting rights will provoke a virulent campaign against "gay adoption".

The equivalent battles in the ACT, WA and Tasmania will look like child’s play compared to the tsunami of bigotry that adoption will unleash in "the first state".

Think about it for a minute. The conservative power-bases of Australia’s Uniting, Anglican, Catholic and Pentecostal churches are all in Sydney. It’s home to the most conservative elements of both major political parties and the media. Western Sydney, in particular, is what Queensland and Tasmania used to be – the national symbol of social conservatism. I have no doubt this will change thanks to the ground-breaking achievements of the Western Sydney's LGBT and other activists. But for now Sydney is the stone holding the rest of the nation's social policy down.

And it’s not about to be led quietly down the path of family diversity.

Again the answer is a marriage equality campaign.

Marriage is an ambit claim. It’s a political heat shield. However you say it, marriage campaigning protects and mainstreams other reforms. Experience across the western world shows this to be true.

Yes, marriage reform will probably stir up the anti-gay right in NSW.

And if that means they’re less likely to worry about parenting reform, and that reform is more likely to occur, it's probably not such a bad thing.