Marriage Equality in Australia (and the World)

By Shae Courtney | 26 Jun 13

By Shae Courtney. This article is part of our July 2013 focus on “Australia in the World”. Click here for more articles in this issue.

Since 1948, nations have declared their support for, and recognition of, the inalienable human rights of all under the Universal Declaration of Human Rights (UDHR). The recognition of these rights, which acknowledge inherent dignity and fosters mutual respect between all humans without distinction, is counter to the current definition of marriage offered by Australia’s Marriage Act 1961.

The Marriage Act stipulates: “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” The Marriage Act is in direct contravention of Articles 2, 3, 6 and, most notably, 16 of the UDHR. Article 16 of the UDHR states:

(1)  Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2)  Marriage shall be entered into only with the free and full consent of the intending spouses.

(3)  The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The conflict was made explicit by the 2004 Amendments to the Marriage Act, which prescribed:

Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

Certain unions are not marriages.

A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia.

Despite the tabling of two amendments bills in 2012, the Marriage Equality Amendment Bill and the Marriage Amendment Bill, which would have established marriage equality, Australia has yet to approve the passage of same-sex marriage into its statute book. There is, however, a current amendment bill, supported by Senator Penny Wong, “to create the opportunity for marriage equality for people regardless of their sex, sexual orientation or gender identity, and for related purposes”. The Marriage Equality Amendment Bill 2013 is due to be read later this year.

Sessional academic at Melbourne Law School, Anna Hood, explained the human rights perspective:

marriage should be available, without discrimination, to all couples including same-sex couples. Human rights are founded on the principle of equality and this means that there is no room for excluding some couples from the institution of marriage. To do so is discriminatory and wrong.

Two of Australia’s closest allies, New Zealand and the United Kingdom, have, in recent months, approved steps to amend the definition of marriage in their respective countries. New Zealand approved the Marriage (Definition of Marriage) Amendment Act 2013 in May, allowing a change to the definition of marriage. The first same-sex ceremonies will take place in August 2013.

In the United Kingdom, the Marriage (Same Sex) Bill passed through the lower chamber in February 2013, and was approved by the House of Lords in June 2013. Only procedural steps remain, meaning same-sex weddings could take place in Britain in early 2014.

The Bill is notable for its “quadruple lock”, which does not request or require religious institutions to perform same-sex ceremonies. The UK’s culture secretary, Maria Miller, said: “The system of locks will iron-clad the protection in law, adding to the existing protections in European legislation, so that those who do not want to conduct same-sex marriages will never have to.”

In light of these developments, Ms Hood commented on the “encouraging” recognition abroad of “the importance of ensuring that marriage is open to all couples”.

And the situation at home requires encouragment, with both major political parties failing to take the lead. But things are changing. While the Australian Labor Party’s official position is that it does not support marriage equality, amongst others former Prime Minister Kevin Rudd recently reversed his previous position saying: “Surely Australia is grown up enough in the year 2013 for the secular state to have its definition of marriage, religious institutions and the church to have their definition of marriage, and for each of them to be able to conduct their own ceremonies.”

The Australian Christian Lobby (ACL), however, has expressed concern about Mr Rudd’s comments, the upcoming amendment bill sponsored by Senator Penny Wong and the “damage” marriage equality would cause to the family.

ACL managing director, Lyle Shelton, drew widespread criticism for making an astounding comparison: “For a prime minister who rightly gave an apology to the Stolen Generations, [Kevin Rudd] has sadly not thought through the fact that his new position on redefining marriage will create another stolen generation because marriage is a compound right to form a family.”

However, Mr Rudd’s position aligns him both with popular sentiment and empirical evidence which demonstrates same-sex parenting does not compromise a child’s development. Regressive attitudes towards marriage equality nonetheless remain.

As JOY 94.9‘s Michael Winn told Right Now: “Knowing that society doesn’t think you are equal enough to marry is going to do nothing but damage the LGBTQ [Lesbian Gay Bisexual Trans and Queer] youth of today … [the] majority of Australia has voiced this, but the politicians are putting their views first. That’s not what they are elected for.”

Update: With Mr Rudd’s return to the Labour Party leadership today, the question remains whether personal conviction turns to wider policy advocacy.  One might hope for some of the zeal of the recent convert, but responsibility rests with all MPs.