“Separate but equal” insufficient for marriage equality

By Sen Raj

So what’s all the fuss with marriage equality?

In Australia, the “gay marriage” issue has continued to saturate media and political debate. For some, marriage serves an inherent religious or procreative purpose, for others it is a basic human right that should be open to all couples.

Since 2008, de facto recognition has operated to offer same-sex and heterosexual couples the same rights, entitlements and responsibilities under federal law. Regardless of whether a couple is married or not, they can still be recognised for the purposes of taxation, superannuation, immigration, parenting, veterans benefits and social security.

So why do same-sex couples demand the right to be married?

In order to answer this question, it is necessary to narrow the scope of the debate to its legislative context, as what is effectively being debated is amending six words in the Marriage Act 1961 (Cth).

With this in mind, the answer should be simple. In a secular democracy, where the law gives marriage no religious or reproductive significance, legislation should not discriminate in terms of sexual orientation, sex or gender identity.

Civil marriages, such as those performed by the state, are a secular option for couples wishing to formalise their relationship. In 2009, 67 per cent of all marriages were solemnised by a civil celebrant rather than a religious minister. We must not confuse religious and civil marriages in this debate. What marriage equality reform will ensure is the right for same-sex couples to have civil marriages. This does not curtail the capacity of religious bodies to choose whom they wish to marry.

Marriage equality norms have also begun to shift in the international community. Countries such as Portugal, Canada, Belgium, Spain, Netherlands, Argentina, Brazil and South Africa already permit marriage equality.

Australia has ratified the International Covenant on Civil and Political Rights, which underscores the importance of equality before the law and the right to non-discrimination. Last month, Australia joined the United Nations Human Rights Council (UNHRC) in condemning violence and discrimination against persons on the basis of their sexual orientation or gender identity.

Australia’s opposition to marriage equality seems to conflict with its international stance on human rights. Despite UNHRC recommendations made at the Universal Periodic Review of Australia earlier this year, Australia expressly rejected reform to the Marriage Act.

Australia’s opposition to marriage equality seems to conflict with its international stance on human rights.

Popular rhetoric aside, marriage is not a fixed institution with a “conventional” meaning under law. We only need to reflect on how the state has regulated marriage over the past century to appreciate its evolution. Historically, women were considered contractual objects to be exchanged. Common law immunities, for example, enabled marital rape, as women lost their capacity to say no to their husbands once they were married. Effectively, women were subjugated to the will of their husbands. At the time, such legislation was deemed appropriate because it was considered “natural” for women to reproduce by virtue of their anatomy. Therefore, it was essential that their marital responsibilities be confined to domestic care giving.

Now the marriage debate centres on “inherent” understandings of sexuality, rather than gender. Community opinion in Australia now provides a decisive answer in relation to this debate. Over 60 per cent of Australians support marriage equality, with 80 per cent believing it is inevitable.

Our major political parties claim there should be no discrimination in relation to sexual orientation. However, there remains significant reluctance to amend a tiered relationship-recognition scheme that denies same-sex couples the same formal and symbolic rights as heterosexual couples.

Marriage is not confined to a debate on human rights. In both policy and cultural terms, it remains the fundamental means through which intimacy and citizenship is publicly legitimated and respected in this country.

Civil unions then do not provide an adequate substitute. If the state pursues different mechanisms for recognising relationships, it sends out a troubling message that same-sex relationships are “inferior” or “lesser than” heterosexual ones.

We have to que(e)ry whether such approaches are appropriate? Should the state recognise relationships using the archaic logic of separate but equal?

Ultimately, marriage equality is neither about religion nor an inherent desire to marry – it is about choice. Relationships are diverse, and marriage is not the only form of valuing intimacy. However, in a secular country, individuals must able to exercise the same choices in order to fully participate in public life.

Marriage equality is neither about religion nor an inherent desire to marry – it is about choice.

Equality is not selective. Marriage equality is one way in which we can ensure that the Australian commitment to a “fair go” becomes much more than an emotive political cliché.

Senthorun (Sen) Raj works as the Senior Policy Advisor for the NSW Gay and Lesbian Rights Lobby, an organisation that advocates on behalf of gay men, lesbians and their families. In a voluntary capacity, Sen is NSW Vice-President of Amnesty International Australia and a Director of ACON Health. Sen writes regularly for The Sydney Morning Herald, The Punch and New Matilda on matters relating to sexuality and politics. His thesis on sexuality and refugee law was awarded the University of Sydney Medal.

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