Converted to marriage

With the passing of same-sex marriage laws recently in both New Zealand and France, many people sense a feeling of inevitability about the prospects for similar eventual change in Australia. A mini bandwagon effect has been noticeable, with some politicians and celebrities hitherto opposed, now apparently being in favour. The apparent obsession with "equal rights", however, seems to have overtaken both common sense and people's perception of reality.

A matter that receives little comment is that the pressure from same-sex partners to be allowed to marry is a relatively new development.

Decades ago, the gay community quite vocally branded traditional matrimony as some kind of antiquated institution, which they generally wanted no part of. According to the openly gay Robert Weiss, Founding Director of The Sexual Recovery Institute, Los Angeles "the idea of falling in love and "'officially' partnering up with one person from now until the end of time was not for us, no thank you very much. The stance of the gay community at the time was, clearly and openly, that we didn't want to be anything like the heterosexual establishment. Sure, 'their model' was fine for them, but it sure as heck didn't suit us. And even if we did fall in love and decide to spend eternity with just one person, we resented the idea of needing an "official sanction of marriage" from the same people that called us freaks".

Lesbian women also traditionally showed little enthusiasm for the marriage institution. Through their strong association with more radical brands of feminism, lesbians have a historic record of more commonly being openly hostile to marriage than being its supporters. High profile feminists (including many not lesbians) have claimed that "since marriage constitutes slavery for women, it is clear that the Women's Movement must concentrate on attacking this institution. Freedom for women cannot be won without the abolition of marriage" (Sheila Cronan ). Another stated that "the institution of marriage is the chief vehicle for the perpetuation of the oppression of women; it is through the role of wife that the subjugation of women is maintained" (Marlene Dixon).

So why the about face? It is not due to any general newly-found desire to get married per se. Instead there is an (often openly stated) belief that legalised same-sex marriage will confer legal and social recognition on a par with married heterosexual couples. This has given rise to a movement to gain all the legal rights that heterosexual married couples have.

Same-sex sexual activity (particularly sodomy) has been decriminalised in most Western countries but remains illegal in nearly all Islamic countries and in much of the third world. While same-sex sexual activity is still regarded as sinful in most religions, more liberal social attitudes as well as more adventurous sexual practices among modern heterosexuals have led to clear majority support in Western countries for the idea that whatever consenting adults do in private is solely their own business.

The social status of married couples over the centuries stemmed from the fact that marriage provided the main umbrella for procreation and of successfully raising the next generation in stable social and economic circumstances. Related to the importance of procreation, society has tended to value unions involving those of reproductive age much more highly than unions involving aged couples. The legal (and historically also religious) commitment of the partners was intended to provide lifetime endurance for the family, and a key obligation was to be responsible for any children within the marriage. Social norms historically extended the responsibilities of the marriage partners to the welfare of grand-parents and to the extended family (especially before the advent of social security). Overall the key matter providing status to heterosexual marriage is that it always served more than the private personal needs of the spouses alone.

While same-sex partners can serve the community in many diverse ways, the benefits of their relationship are generally private and confined to the couple themselves. Homosexual unions also do not enable reproduction without the physical participation of an outside opposite-sex partner, and in such cases any resulting child is likely to be brought up with one natural parent missing. Some of the rules applying to marriage also lose relevance in the context of same-sex unions. The ban on marriage between close relatives, for example, seems irrelevant if they are incapable of joint reproduction. Similarly, the issue of impotence being grounds for marriage annulment (as is the case in the US and UK, but not under our Marriage Act) becomes problematic, and the normal pooling of family finances (characteristic of domestic relationships) can be unnecessary in childless families where both partners remain in the workforce.

Same-sex couples account for a very small proportion of all Australian couple families. According to the Australian Bureau of Statistics Census figures, same-sex couples comprisedonly0.7% of couple families in 2011, with 109 male same-sex couples reported for every 100 female same-sex couples.

Partners in same-sex couples in Australia are generally younger than partners in opposite-sex couples. While partners in same-sex couple families accounted for 0.7% of all partners, they accounted for 1.6% of all partners aged 15–24 years but this decreased with age to be almost absent (only 0.1% of all partners) for those aged 65 years and over. This seems to reflect that same-sex cohabitation in Australia often does not survive past the sexually active years and lifetime commitment is much less common. Same sex marriage is such a recent phenomenon, where it exists overseas, that it is too early to assess divorce rates.

In contrast to heterosexual couples, most Australian same-sex couples live together without children or other relatives in their family. This was the living arrangement of 86% of same-sex couples in 2011, and was more common for male than female same-sex couples (95% compared with 75%). Same-sex partners were most likely to report having no religion (48%), followed by Christianity (40%).

Overall, what we know about same-sex couples suggests that their relationships are different in nature, much less likely to be lasting, and generally do not give rise to equivalent social benefits, as conventional marriage. The "right" to marry the one you love is often cited as justification for extending the marriage institution to same-sex couples. It is, however, notable that love has never been a requirement for a valid marriage. If recognition of love rather than procreation is to become the main reason for marriage, arguably there is just as strong a case for extending the right to marry to celibate cohabiting siblings. Marriage equality itself arguably already exists, since Australians of all sexual orientations already have the same right to marry someone of the opposite sex. The main impediment for gays and lesbians is that they are not so inclined.

Gay and lesbian couples in Australia did have valid complaints concerning a range of discriminatory practices, now largely eliminated. Discrimination concerning surviving partner superannuation entitlements was largely overcome by legislation of the Rudd government, when the Same-Sex Relationships (Equal Treatment in Commonwealth Laws Superannuation) Bill 2008 was passed. The Rudd Government also passed the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 to allow same-sex and de facto couples access to the federal Family Court on property and maintenance matters following relationship breakdown. Adoption and fostering rights have also been extended to same-sex couples, but to a mixed degree. Adoption rights are available to same-sex couples in the NSW, WA and the ACT and will shortly become law in Tasmania. Same-sex couples have the right to foster in the other jurisdictions. Spouse accompanied travel entitlements, where they exist, have (especially in the public sector) also been largely but not entirely made available to same-sex couples.

Some of the changes to remove discrimination might well have been more sensibly made through different, more fundamental changes, to the benefit concerned. Spouse accompanied travel paid by an employer (for example) had its origins in the days when a stay-at-home wife supported her husband's career for little reward. Those days are gone and it would have made more sense to achieve equality through abolishing such benefits entirely by rolling them into salary, than to extend them to same-sex couples.

The extension of surviving partner superannuation benefits to same-sex couples is also debatable as the best means of eliminating discrimination. The genesis of such entitlements goes back to the days where married women generally left the paid workforce and there was a special need to provide for them, because wives generally outlived their husbands and would have had no superannuation of their own. With married women now generally having their own (albeit generally less valuable) superannuation, what started as a means of providing a reduced pension for a widow has ended up as a system that often provides two pensions to a surviving partner of either sex, which was never intended. Extending surviving partner superannuation to same-sex couples did overcome the discrimination against that group but has only served to further underline the inferior superannuation benefits available to singles, who generally contribute according to an identical formula but whose heirs receive much less valuable benefits.

Same sex couples don't have the automatic inheritance rights (from their partners) as married couples. Many claim that, in the absence of a will, it is desirable that the surviving same-sex partner should have the same intestacy rights as surviving marriage partners (which means that, in the absence of adult children, the surviving partner would get everything). I don't agree.

A key difference between married heterosexual couples and same-sex couples is that married heterosexual couples generally have the same natural heirs (namely their children), while same-sex couples don't. Consequently, if the normal rules of intestacy apply, there is a strong risk that the blood relatives of the first deceased same-sex partner will permanently lose their inheritance to the relatives of the longer lived partner. There is a case for providing an automatic life interest in a shared home and personal assets to a surviving same-sex partner (this would require separate intestacy rules) but clearly only a will can ensure that the actual wishes of the deceased are carried out.

In conclusion, it will be obvious that I don't support same-sex marriage, as a constituent element within conventional marriage, on the grounds that it is both unnecessary and does not particularly suit the circumstances of same-sex couples (who already share in most of the financial entitlements available to married couples). The demands for its introduction seem to be a ruse aimed at piggybacking a respected institution for opposite-sex couples to gain recognition for groups that commonly denigrated and eschewed marriage in the past.

I am, on the other hand, not particularly opposed to same-sex couples having their own separate institution (civil unions?), with rules suiting their own special needs, and having the potential to develop whatever prestige and respect it may attract over the longer term. Any attempt to appropriate the term "marriage", I believe, would be grossly insensitive, especially in the context of marriage having religious significance. The term "same-sex marriage" is about as contradictory as "Halal Pork Butchery" and both are likely to give offence.