Criticism of state same-sex marriage legislation
What follows is a preliminary response from the Tasmanian Gay and Lesbian Rights Group to advice crititical of state same-sex marriage legislation from Assoc Prof of Law at Sydney University, Jenni Millbank, to the NSW Gay and Lesbian Rights Lobby. The original advice can be found here.
Of deep concern is that Assoc Prof Millbank appears not to have read the legislation she comments on. For example she states that the legislation has the "gross drafting error" of not amending other legislation to recognise same-sex marriages on par with different-sex marriages.
This is simply untrue.
Section 42 (1) of the Same-Sex Marriage (Celebrant & Registration) Bill 2005, states
"The Acts Interpretation Act 1931 is amended by inserting the following definition into section 46..."Marriage" includes marriage under the Same-Sex Marriage Act 2005."
In effect this amendment means that all Tasmanian laws which give rights and responsibilities to different-sex married couples would give the same rights and responsibilities to same-sex married couples.
Now to Prof Millbank's main points.
1. Equality of rights for de facto and married spouses
According to Millbank, "there would be no change to the rights of same-sex couple in NSW where same-sex de facto couples are currently recognize, i.e same-sex married couples would be in no better position than same-sex couples in most areas of law".
The point here appears to be that because same-sex de facto and married couples would have the same rights under NSW law, legally recognising the latter would be superfluous.
If this is true it must also be true of different sex marriage.
Whether or not marriage is a superfluous and unnecessary form of relationship recognition when de facto laws are as comprehensive as they are in NSW is an interesting question but one which goes beyond the question of equality.
As long as same-sex couples cannot marry the law treats them as unequal. That is all which should concern organisations with an equality mandate.
2. Inequalities between same and different sex de facto couples
Millbank argues that because spousal definitions in those NSW which do not recognise same-sex de facto relationships are gendered, a state same-sex marriage bill will not grant equal rights in these areas.
However, there is nothing stopping a NSW Same-Sex Marriage Bill from amending the legislation in question to gender neutralise the relevant definitions of marriage.
Millbank also believes the rights concerned (mostly to do with parenting) should not be available only to same-sex couples who marry.
This is true, but, again, this can be remedied by de facto equality in the laws concerned, something which the NSW GLRL says it is campaigning for.
3. No effect in federal law
Millbank is correct that a State Same-Sex Marriage Bill will have no effect in federal law.
Neither do the de facto equality reforms pursued by groups like the NSW GLRL in every Australian state. That was not, however, ever raised as a reason for not pursuing these reforms. Why is it now put forward as a reason for not pursuing marriage reform?
4. Unlikely to have effect in other states
Millbank is again correct. But neither are same-sex marriages contracted under US state or Canadian provincial law given status under the laws of most other states and provinces.
This was not put forward as a reason for not pursuing reform in those jurisdictions.
5. Unlikely to have an effect overseas
As Millbank states "this is outside my area of expertise and would need to examined more thoroughly".
Jurisdictions such as the UK and New Zealand which recognise same-sex civil unions recognise North American state and provincial same-sex marriages. It seems likely that they would also recognise Australian state same-sex marriages.
Millbank has over looked the unfortunate fact that state same-sex marriage bills cannot recognise over seas same-sex marriages. This is because last year's amendments to the Commonwealth Marriage Act explicitly prohibited the recognition of these unions in Australian law. Any state law recognising these unions would therefore be unconstitutional.
Conclusion: a misnomer
According to Millbank, "an essential element of marriage is that its formality ensures portability. This Bill does not achieve that. In short, it is a misnomer to call state same-sex marriage "marriage" because it simply does not grant an equivalent status to opposite sex marriage in NSW law, Federal law, the law of other states or internationally".
Putting aside the issue of equality within NSW law which is dealt with above, Canadian provincial same-sex marriage laws are also not "portable" in the way Millbank defines that word. Does that mean they are also not properly marriage laws?
The definition of marriage under Australian law is a life long relationship to the exclusion of all others. It is by retaining this definition that state same-sex marriage laws become "marriage" laws.