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Homosexuals have a basic human right to formally marry their partner

By Greg Barns - posted Friday, 30 April 2004


A decade ago, plans by a Liberal Party Leader to restrict freedoms of gays would have caused a public and fascinating debate between the party’s liberals and the conservatives. But given the way in which the left of the Liberal Party has rolled over on other key human-rights questions since John Howard became leader of the Liberal Party in 1995, there is no guarantee that Mr Howard will not get his way with his plan to rule out the possibility of gay marriages in Australia.

Media reports that Mr Howard’s Cabinet last week decided to amend the Marriage Act to insert the common-law definition of marriage as being between a man and a woman should disturb liberals like Defence Minister Robert Hill, Communications Minister Daryl Williams and Immigration Minister, Amanda Vanstone. Yet there is no sign that they are dissenting from the Cabinet decision on this issue. What sort of signal does that send to backbenchers like Senator Marise Payne, New South Wales backbencher Bruce Baird and Victorian MP Petro Georgiou – about the only three MPs in Mr Howard’s Party who have put their heads above the parapet over the past decade to assert liberal values of tolerance and respect?

Make no mistake, ending discrimination against gays by allowing them to marry is as much a test of the Liberal Party’s commitment to liberal values as the incarceration of asylum seekers in jail type conditions on Nauru.

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For a liberal – one who believes that, as former Canadian Prime Minister Pierre Trudeau once colourfully put it, “the state has no place in the bedroom” – to rule out the possibility of gay people marrying, adopting children or having custody of children is an affront to the core belief in the right of law-abiding citizens to be full participants in society.

To argue that marriage, adoption or care of children should be confined to heterosexual people is to sanction prejudice over empirical reality. For a conservative there’s no problem with that – after all modern conservatism has always been uncomfortable with the rational and non-discriminatory rule-making system that emanated from the Age of Enlightenment.

For liberals, the issue of whether or not the state should intervene to prevent or allow a practice is determined with an eye to any evidence that suggests the need to tread cautiously for fear of undermining societal well-being.

So what does the evidence around the world on gay relationships suggest? Are they undermining of society’s cohesion? The answer is clearly and emphatically no.

In Canada, where three provincial governments have allowed same-sex marriages, Belgium and the Netherlands, there is no evidence of societal break-down as a result. The consensus of opinion from the leading psychiatric colleges in the world – including Canada and the US - is that there is no evidence to suggest that children are more at risk of harm if brought up in a gay relationship.

In short, as the Massachusetts Supreme Court noted in its landmark decision to allow gay marriages in November 2003, preventing gay couples from access to the institution of marriage "works a deep and scarring hardship on a very real segment of the community for no rational reason".

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With ample empirical evidence to support the case for gay marriages, liberals can turn to the discrimination argument. All nations that are, in theory at least, committed to enhancing democracy, must work assiduously to eliminate discrimination against groups and individuals. In Australia, it has been the Liberal Party that championed the right of Aboriginal people to vote, that under Malcolm Fraser accorded rights to refugees and continued the Whitlam legacy of developing and enforcing human-rights legislation.

One key area of discrimination that remains in Australia is in relation to the institution of marriage. Some might argue that marriage is less relevant in 21st-century Australia. But the state does not think so. As University of Capetown philosopher David Benatar has noted, “A marriage recognised by the State provides an opportunity for those who make … commitments and investments to formalise them in a way that facilitates the protection of the parties to the marriage. Where no provision is made for same-sex marriages, homosexuals (both male and female) are denied such benefits.”

The liberals in John Howard’s Liberal Party have another chance to make a stand for the values for which their Party once stood – tolerance and equality. Australia’s gay community deserves their support because there is no legitimate reason to deny their right to be treated as equal citizens.

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About the Author

Greg Barns is National President of the Australian Lawyers Alliance.

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