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.
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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.
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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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