‘Can I thee wed?’ Same-sex marriage in Australia

The issue of same-sex marriage in Australia is fraught with associated problems that confuse the central issue. These problems range from a residual opposition to same-sex relationships on the social and political level to the religious consciences of those who see them as sinful and immoral.

Opponents of same-sex marriage claim that allowing such couples to marry will lead to a degrading of marriage in society and, indeed, to the value of family life itself. Simply speaking, the floodgates will open and society will be consigned to the slippery slope where values and morals become redundant. Understandably, emotions are running high.

Rather than have recourse to the classical history of ancient Rome and Greece where, it is claimed, same-sex marriages were accepted and formalised (until proscribed in the Christian Church by the Theodosian Code of 324 CE) it would be more illuminating to scrutinise more recent history.

In the last forty years same-sex love has gone from being a criminal offence, and subject to persecution and violence, to being recognised by legislatures around the world. Laws have changed to reflect positive developments in the areas of property ownership, superannuation, and inheritance. Correspondingly, negative elements have been eliminated by laws that outlaw various forms of discrimination in housing, employment, healthcare and even religious groupings.

In 2008, for instance, in the state of Victoria legislation was passed (Relationships Act 2008) allowing a record of enduring relationship to be established, even retrospectively, which can then be used as evidence to substantiate the actual “life” of a relationship. This is referred to as “registering a domestic relationship”.

Objectors distinguish between this laudable advance in liberal democratic rights and the much more serious step of legalising same-sex marriage. They claim that such a step is totally unnecessary as rights are already protected and enshrined in our laws – so, why put heterosexual marriage and the family unit in danger?  Some of these people are even happy to endorse civil unions, which formalise same-sex love in a way similar to marriage.

The sticking point, of course, is that these unions cannot and should not become marriages in the same sense, socially and legally. Proponents of change talk in terms of a minor word change to the Marriage Act of 1961 but opponents see this as simplistic and having huge social ramifications.

Article 16 of the U.N. Declaration of Human Rights states: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” The right to marry, therefore, is recognised as a basic human right and applies to all men and women equally.

Equal opportunity for gay couples in permanent care orders (close to but not the same as adoption rights), surrogacy and IVF technology also seems to confirm this right. It is contradictory that one right is recognised and not the other.

An obvious roadblock is our definition of marriage. In most people’s experience marriage means man, woman, and procreation. Over the years, however, not all couples choose to have children and couples marrying or re-marrying in their sixties and seventies are unable to. Can our definition be revised to reflect these relationship changes? The answer must be yes.

Two hundred years ago wives were regarded as legal property of husbands. In the past divorce was forbidden by law. Inter-racial marriage was once outlawed but is now accepted. The forces of history, tradition and common parlance argued against these changes.

Civil marriages comprise 70 per cent of all marriages in Australia, and increasing, and almost the same percentage of Australian citizens favor same-sex marriage. This figure, too, is on the increase.

Research reveals that, since 2001, a growing number of countries have legislated in favor of same-sex marriage. These states include the Netherlands, Spain, Canada, South Africa, Norway, Portugal Mexico, Sweden, Belgium, Iceland and Argentina, and now some seven American states. In other places such as Israel and Tasmania, governments recognise same-sex marriage but do not perform them.

While some argue that such growing numbers do not automatically make it right nevertheless some democracies are able to recognise and accept differences in sexual preference and are prepared to use political will to protect the rights of all its members.

When it comes to sexual preference some people feel decidedly uncomfortable. They manifest an unwillingness to be involved in the discussion and refuse to engage in any decision-making about it. They baulk at what seems such radical and risky change. On what is their fear based?

Surely we have gone beyond the AIDS threat, pedophilia and a sense of moral repugnance. If some find it hard to believe that two gay people can love each other with as much passion, sacrifice and generosity as married couples, then I can understand their reluctance. Surely advocacy, testimonies, familiarisation and self-education will help us support those gay people who have a deep desire for marriage equality.

Not all gay couples are advocating same-sex marriage so what drives those who desperately seek marriage equality under the law? Already they enjoy legal protection and a sense of financial security. The U.K. Civil Partnership Act 2004, for instance, provides for recognition of rights relating to property, inheritance, social security and pension benefits, next-of-kin rights and life insurance, amongst other rights.

Are we talking then about more than just a marriage certificate? Is it an issue of personal identity? Is it about having a place in society where people can recognise who you are and be aware of your marital status? Heterosexual couples assume this as a matter of course.

From the highest governing body down to the simplest family barbecue people know where they stand and how they relate: Mr. and Mrs. Citizen receiving official mail; owning and operating joint bank accounts grants a certain authenticity to (or at least a vote of confidence in) the marriage relationship; employers sometimes preferring the seeming stability of a married person; spouses enjoying visitation rights in hospital; recognising the status of parents attending parent/teacher interviews.

These scenarios can represent legal and emotional minefields for gay couples. Two gay partners may very well have their own personal and individual sense of identity and enjoy a strong sense of their healthy relationship as a couple. Society, however, remains ambivalent and would welcome some kind of validation. For all these reasons I am compelled to argue that men and women have the right to marry whomever they choose. It is a matter of justice and basic human rights, under the law.

We have to face this dilemma sooner rather than later. Politicians and political parties in Australia are divided on the issue and the end result is political caution. The Christian lobby was influential in the Howard Government’s tightening of the 1961 Marriage Act, through the Marriage Amendment Act 2004, to specify, “marriage means the union of a man and a woman”.  

Is there a suitable way forward that will satisfy those agitating for change and placate the anxious? The old adage of “politics being the art of the possible” is never more applicable.

France’s custom could well merit our serious consideration. There, all couples are married under civil law by the local Mayor. Couples and families are then free to celebrate their own marriage rituals in their traditional place and manner: culturally, religiously or secularly. The secular reality of marriage is thereby affirmed and religious communities retain responsibility for their own sense of the sacred.

Adapting this model in Australia for same-sex marriages would also clarify boundaries between church and state.