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Couples are not couples unless they can marry

By Rodney Croome - posted Wednesday, 15 April 2009


“Gay or straight, couples are couples”: that’s the message the Australian Government is sending same-sex couples who may face reduced benefits when their recognition as defacto partners kicks in on June 30th.

But if “couples are couples”, as the Government loudly insists, why won’t it allow same-sex couples to marry?

In the lead up to the Labor Party’s mid-year National Conference the Party’s policy committee has published a draft party platform which continues to oppose not only same-sex marriage, but civil union schemes which dare “mimic” marriage.

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This is despite the draft platform declaring a few pages earlier that Labor has:

…always stood for equality. Throughout our party’s history successive Labor governments have sought to achieve this by helping people overcome disadvantages based on social class, gender, sexuality, disability, religion, cultural background and racial prejudice. We have always pursued the fair go, tolerance and respect. We oppose all attempts to divide Australians by pandering to prejudice.

Labor’s policy against same-sex marriage is nothing new. It was adopted at the last National Conference to eliminate same-sex marriage as a 2007 federal election wedge.

Like Rudd’s social gospel, Labor’s opposition to same-sex marriage was about poaching religious and socially-conservative voters looking for an alternative to Howard.

In short, it is about nothing but “pandering to prejudice”.

What’s changed in the short time since Labor’s last conference is just about everything but the policy.

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Overseas, more and more courts and parliaments are embracing equality in marriage.

A fortnight ago Sweden joined the Netherlands, Belgium, Spain, South Africa and Canada in allowing same-sex marriages.

The very next day the Supreme Court of stodgy, conservative Iowa brought the number of US states that recognise same-sex marriages to three, challenging Australians to ask, if Iowa, why not us?

Then four days later, as if to make the point that change is accelerating, the Vermont legislature overrode a gubernatorial veto on same-sex marriages to bring the US total to four.

Oddly enough, the US state which has probably done more to increase support for same-sex marriage globally is the place where such marriages are no longer allowed, California.

The same-sex marriages of popular celebrities like Ellen DeGeneres and George Takei have gone a long way to defang the fear-mongering of anti-equality advocates.

Closer to home, a number of celebrities, public figures and important public institutions have also moved the debate along.

Matthew Mitcham has spoken out in favour of his right to marry, as has former High Court judge, Michael Kirby.

Major corporations like Westpac, Telstra and Qantas, as well as several unions and municipal governments, now recognise the same-sex marriages of their employees, members and/or customers.

Significantly, prominent Labor figures are breaking ranks and also endorsing equality, including Victorian Education Minister, Bronwyn Pike, and WA Senator, Louise Pratt.

This change is both lead by, and leading, changes in broad public opinion.

In 2004 Newspoll found only 38 per cent support for same-sex marriage in Australia. According to Galaxy, that had jumped to 57 per cent in 2007. Even in the state which the Australia Institute has claimed is Australia’s most homophobic, Queensland, Galaxy last year found support for same-sex marriage runs at 54 per cent.

Most important of all, faith communities, at whom Labor’s gay marriage policy was aimed, are shifting ground.

A 2007 poll of faith-minded Americans aged 18-35 found 80 per cent felt Christian leaders are wrongly contemptuous of gays and lesbians. A poll of the same demographic, released last month, found 55 per cent supported same-sex marriage or civil unions. It’s reasonable to assume that such figures would be even higher in Australia.

So how will the ALP respond to these immense changes when its delegates meet in June?

I fear it may seek a compromise, just as unsatisfactory as the current policy.

When the last Labor National Conference addressed the issue of formally-recognising same-sex relationships, it sweetened its rejection of same-sex marriage by endorsing “nationally-consistent state-based relationship recognition schemes” which, as I’ve noted, do not “mimic marriage”.

Our state civil union schemes are fine as far as they go. They have been credited as some of the most inclusive and egalitarian in the world, precisely because they are not limited to couples in marriage-like relationships and do not replicate marriage ceremonies. They are well suited to recognising a diverse range of partners and companions who can’t or don’t wish to marry.

The political tragedy is that, because state civil union schemes have been endorsed by Labor to assuage the demand for same-sex marriage but were deliberately designed to fulfil quite different purposes, they have been unfairly equated to “dog registers”.

Compounding this is the fact that the NSW and WA Governments are opposed to any formal recognition of same-sex couples at all, shooting down any hope state schemes will cover the nation.

Given these problems with the current ALP policy, and the ever-growing demand for same-sex marriage, one possible line of retreat for Labor is to endorse a national civil union scheme that looks like marriage but isn’t.

Here I’m talking about a scheme that is limited to marriage-like relationships and has mandatory, legislated, wedding-like ceremonies, the kind of marriage-like (or as some say “marriage-lite”) scheme  that already exists in New Zealand and has been repeatedly quashed by the Federal Government in the ACT.

Endorsement of such a scheme is what the ALP’s gay and lesbian caucus, Rainbow Labor, is hoping for. In its submissions on the Party platform it has called for equality in marriage as well as civil unions that look like marriage. On the surface this is absurd. Why allow same-sex marriage and then establish a parallel national scheme that looks just like it? The answer is that Rainbow Labor is hedging its bets.

But if Labor endorsed a national marriage-like civil union scheme it would be faced with a whole new set of problems.

It is not certain whether the Commonwealth has the power to establish a national marriage-like civil union scheme.

If its aim is to establish such a scheme in order to preserve marriage as a heterosexual institution it would certainly not use its constitutional marriage power.

The external affairs power is a weak basis because in those successful same-sex cases that have gone to the UN Human Rights Committee from Australia, the Committee has called on the Federal Government to give equality to same-sex de facto couples only, which it has already done.

Referral of state powers is also a shaky foundation. Existing referrals, again, only cover de facto couples and only in financial matters. I can see states like Tasmania or Victoria refusing further referrals if the national scheme imitates marriage by excluding non-conjugal relationships. I can see NSW and WA not offering any new referrals at all.

In short, any scheme that was established on any of these bases is sure to be challenged in the High Court by opponents and perhaps even supporters of same-sex marriage.

The even bigger problem is this: while civil unions with official wedding-like ceremonies may superficially resemble marriage, they do not fulfil its purpose.

US and European studies have found that employers, insurers and even government agencies, systematically fail to grant civil union partners the same rights as married partners, even when the law says their rights are the same.

This is because civil unions do not have the same social status as marriage, even where they have existed for many years.

As a result, more and more courts, from Canada though South Africa to the US, are declaring that far from being a remedy for discrimination in marriage, civil unions perpetuate discrimination by establishing systems which are separate and (un)equal.

More and more legislatures, including recently those in Sweden and Vermont, are simply doing away with civil union schemes in favour of equal marriage, or converting civil unions into marriages.

What a tragedy it would be if Australia were to adopt a marriage-like civil union scheme at the very moment when the promise of legal and social equality these schemes hold out to same-sex partners is being exposed as a fraud.

Of course, the fall-back case for a national civil union scheme is that it would be more popular and therefore more politically achievable than equality in marriage.

But there are two reasons why civil unions may no longer be the politically-expedient option they once were.

Opponents of same-sex marriage are no longer placated by civil unions. Sweden and Vermont confirm their fear that civil unions are a back door route to equality in marriage which they must block as vigorously as equality itself.

Nor does popular opinion greatly favour civil unions over equality in marriage. On top of the 54 per cent of Queenslanders who support same-sex marriage in the Galaxy Poll cited above, only an extra 5 per cent support civil unions. This small gap is likely to be even smaller in other states and will inevitably diminish as acceptance of same-sex marriage grows.

In the mind of just about everyone, a debate about civil unions in Australia would really be a debate over same-sex marriage, so why not just have the real debate?

The ALP has not found a political solution to same-sex marriage in state civil union schemes. Neither will it find that solution in some national scheme that is marriage-like.

If, as the Government tells us, “couples are couples” there is only one politically and morally responsible answer to the demand for same-sex marriage, and that is same-sex marriage.

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About the Author

Rodney Croome is a spokesperson for Equality Tasmania and national advocacy group, just.equal. He who was made a Member of the Order of Australia in 2003 for his LGBTI advocacy.

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