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Marriage equality: As simple as changing five words

By Eva Cripps.

Catholics are not known for social progression. Abortion is evil. Divorce is a sin. Being gay is unnatural and against God’s will. At least that is what the celibate, robed patriarchy in charge of church ideology will tell you. But times move on. And now Ireland has joined a long list of countries and states to allow all couples in loving relationships to marry. Ireland, a historically conservative Catholic nation, has shown Australia up by becoming the first country in the world to approve same-sex marriage by popular vote.

Marriage, which only in recent times became the domain of righteous, god-fearing people, has a lengthy and diverse history. Traditional advocates fiercely contend that marriage is about children, and biological children at that, according to Lyle Shelton, Managing Director of the Australian Christian Lobby. However the one man, one woman, voluntarily marrying is a comparatively recent phenomenon.

On the whole, it is people of ‘faith’ who are the most vocal opponents of same-sex marriage. However the whole Christian argument about God blessing marriage and declaring it sacred falls down as soon as you consult the bible, where even polygamy is endorsed. Other cultures and religions also have varying interpretations on what marriage means and how it should be practiced, including position on same-sex unions.

Despite the official stances of religious institutions, the greatest endorsement for the Christian approval of marriage equality comes from the majority ‘Yes’ vote in Ireland, where 84.2% of the population identified as Catholic in the 2011 census.

And this brings us back to Australia.

Despite a majority of Australians supporting marriage equality, the Australia Government is now lagging behind over 22 other countries and a host of American states.

Following the resounding ‘Yes’ vote in the Ireland referendum, Prime Minister Tony Abbott has staunchly defended his opposition to marriage equality. He reaffirmed his position by declaring that “questions of marriage are the preserve of the Commonwealth Parliament” and “I don’t think anyone is suggesting the Constitution needs to be changed in this respect.”

On both counts, Tony Abbott is correct.

It is entirely the responsibility of the Commonwealth Parliament to enact laws for the people of Australia.

It is entirely within the ambit of the Commonwealth Parliament to legislate on marriage.

And with between 64% – 68% of Australians supporting same-sex marriage, it is understandable that Abbott, opposed to marriage equality, would attempt to write off the idea of a popular vote.

However Abbott has misinterpreted the position of the Constitution. The Constitution does not need to be changed to allow marriage equality. The High Court, when overturning the Australian Capital Territory’s same-sex marriage laws in 2013 declared that “‘Marriage’ in s 51(xxi) [of the Constitution] includes a marriage between persons of the same sex.”

Clearly, no popular vote is required.

All that is required for legalised marriage equality is for the Commonwealth Parliament to change five words in the legislation.

The Marriage Act 1961 (Cth) defines marriage as being “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

The Parliament simply needs to delete “a man and a woman” and replace it with “two persons”.

Until 2004, the legislation technically allowed for same-sex marriage, however it was generally accepted that marriage was between man and woman. Howard, also opposed to marriage equality, outlined in the Explanatory Memorandum that he wanted to protect what he called “the institution of marriage”. He also wanted to “reflect the Commonwealth’s view that the adoption of children by same sex couples is undesirable”.

Despite the Government changing in 2007, the new definition expressly excluding same-sex marriage remained, even with Rudd later voicing support for marriage equality. However the Government sought to remove the institutionalised assumption that same-sex couples would be terrible parents by changing the definition of ‘de-facto’ in the Family Law Act 1975 (Cth) to include same-sex, giving them identical parenting and other rights as opposite-sex couples.

Many Australian opponents of same-sex marriage cite the general parity at law as a reason to deny marriage equality. They claim that civil partnerships, available in the Australian Capital Territory, Queensland, Tasmania, Victoria and New South Wales are a substitute for and equivalent to marriage.

But it is not marriage.

And if it were a substitute for marriage, it would be called marriage.

And if it were equivalent to marriage, there would be no argument for not allowing same-sex couples to marry.

The reality remains that civil partnerships are not a legal marriage and do not have the same social and cultural inferences as marriage.

It seems absurd, given that same-sex couples are afforded at law almost all the same rights for property, parenting, estate and superannuation as other couples that they may not marry.

It is clear that the objection to same-sex marriage is social, cultural and largely religious, not legal.

And it is very clear that the Australian Government is out of step with the community.

There are no reasons, other than those influenced by religious ideology, for refusing same-sex couples the right to marry. 61% of Australian people identified as Christian in the 2011 census. It is obvious that with a majority of Australians in favour of marriage equality, a large percentage of those people hold Christian beliefs.

The argument that marriage is about a man, woman and biological children ignores the reality and values of contemporary Australian society. These arguments against marriage equality demonise hetero couples who seek IVF treatment for much wanted children, couples who adopt, and step-parents who devote a decade or more to help raise another person’s child. It also ignores the couples who choose not to have children, or who cannot have children due to age or medical reasons. The argument that children need a male and female parent ignores the reality of single parent households, including those where one parent has died. It ignores the reality that even in traditional households, a full-time working parent often sees very little of their children.

The only thing holding back marriage equality in Australia is the five words inserted into the Marriage Act in 2004. Five words which can easily be changed by the Commonwealth Parliament.

Given the community support for the right for all loving and committed couples to marriage, those five words should be changed.

It is time Australia caught up with the rest of the developed world.

 


20 comments

  1. FERGOLO11 (@FERGOLO11)

    Gotta love the ‘equality’. The Irish gay marriage campaign was massively funded by offshore interests – namely American offshore interests to the tune of millions of dollars. The No campaign ran on a paltry 200,000 euro. This is a victory for advertising and nothing more. Gay marriage brings nothing to the societal table – it is an affront to every hetero couple who actually manage to produce something from their coupling. All gay marriage does is grant official acceptance to ‘penis in anus’, you see these gays are so insecure about their sexuality they need big brother to tell them everything is fine – by the agency of OFFICIAL MATRIMONIAL APPROVAL – DEFINITELY GOVERNMENT APPROVED AND THE GOVERNMENT IS ALWAYS WATCHING ALWAYS RIGHT – DO NOT QUESTION.
    Its called a pyrrhic victory – give them official government marriage approval, they will simply move on to the next campaign – whatever that is. Nothing in their lives will change as a consequence of official government approval – their discontent is a consequence of their lifestyle and nothing else – but its much easier to project than it is to change oneself or ones flawed attitudes.

  2. Michael Taylor

    As if you know.

  3. Terry2

    The changes to the Marriage Act in 2004 served not only to embed the common law understanding of marriage into the legislation but had a nasty ideological twist to reject recognition of same sex unions solemnised in an offshore jurisdiction :

    ‘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.’

    This definition and its addendum was pure LNP politics on display and whilst, as you say, we don’t need a referendum or Constitutional change, but merely legislative change. It is this very change that Abbott will try his utmost to avoid happening on his watch.

  4. kerri

    The Marriage Act 1961 (Cth) defines marriage as being “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

    I find it interesting that so much emphasis is put on the first 8 words of this section of the marriage act whilst Australians happily, and legally disobey the last 4 words??
    Would Abbott be so opposed if he were forced to adhere to words 9-14???

    And FERGOLO11 speaking as a hetero who has produced something from my coupling you are an affront to me.
    Do some research it isn’t always about penis in anus and that act occurs in many hetero couplings anyway!!!
    Find somewhere else to commit your bigoted rants!

  5. Kyran

    A wonderful read, Ms Cripps. Once again, we are reminded of the pursuit of ideology over the sentiments of we, the people. I, for one, don’t understand how any politician can vote in parliament (particularly on issues such as this) based on their party’s ideology over their constituents desires. As an aside, the funding of the respective campaigns is a highly contested issue, which is likely to be investigated as “foreign donations to lobby groups during referendums in Ireland are banned”. Two articles worth a read;

    http://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CB0QFjAA&url=http%3A%2F%2Fwww.theguardian.com%2Fworld%2F2015%2Fmay%2F16%2Fus-christians-no-campaign-ireland-gay-marriage-referendum&ei=ZHpiVYnzNc2E8gXuhYDYAw&usg=AFQjCNHEAz4hjMK6Qjgq5uNRev22uVLdag

    http://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&cad=rja&uact=8&ved=0CEAQFjAH&url=http%3A%2F%2Fblogs.spectator.co.uk%2Fcoffeehouse%2F2015%2F05%2Firelands-gay-marriage-vote-was-never-an-equal-contest%2F&ei=ZHpiVYnzNc2E8gXuhYDYAw&usg=AFQjCNG2VrQCrf37kYwlZRpbJTFqFmc2pA

    Sorry the links are so long! Thank you Ms Cripps. Take care

  6. Rosemary (@RosemaryJ36)

    My understanding of the Irish gay marriage campaign was that there was massive funding from conservative evangelical groups in the USA OPPOSED to gay marriage but that that the overwhelming support came from the Irish people themselves.
    And incidentally – given a lesbian couple also benefits, where does the penis feature in this arrangement, FERGOLO 11?

  7. LOVO

    @Fergolo11,gee you white supremacists sure make me laugh……. 🙁 🙁 🙁 … one wonders if when you get up in the morning you pose the question to your self- ” What am I gunna hate today” ….and today it’s homosexuals…. but alas as they say- it takes all kinds to make a world- ( I’m so glad your “kind” are on their way out, but 😛 ) ,
    Here’s a handy link :- http://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.88.9.1303
    http://en.wikipedia.org/wiki/White_people

  8. Jexpat

    I read Abbott’s comments differently:

    “Referendums are held in this country when there is a proposal to change our constitution and I don’t think anyone is suggesting the constitution needs to be changed in this respect,” Abbott said.

    “It’s up to members of parliament who are eager for change to decide whether they want to bring it forward.”

    That suggests to me that he’s going to triangulate on this and allow a conscience vote when he thinks it most politically advantageous to do so.

    A majority decision by the right wing Catholic fundamentalists that dominate the US Supreme Court upholding marraige equality throughout the US states (their decision is due out in late June) would give him the coup de grâce in terms of cover to do this.

  9. stephentardrew

    Time to get rid of those gay animals they are setting a bad example. Maybe we could redirect the bigotry of these haters to the animal kingdom for long enough to give decent people a chance at equality, justice, decency and inclusiveness. Too much to ask for from the purveyors of Gods Love (marvelous how it can be turned to bigotry and hate) and the upstanding values of primitive magical and mythical thinkers lost in a subjective realm of twisted justifications, moral superiority and self-aggrandisement.

    I don’t screw with people of my own sex so God loves me. They just cannot see how lacking in love and compassion they are. Oh well what does it matter. May as well stuff up the climate and environment while were at it. Suffer little children it will make you stronger. Tough hate now that’s what they like.

    My personal experience of the current push towards ever greater inequality, reduction in wages and work conditions, denial of shelter and financial security, demonisation of refugees, the unemployed, single mothers, and pensioners reflects none other than a visceral hate for ordinary people and their right to live satisfactory and fulfilling lives. They want to give you more and more suffering while blaming you for being exploited. If that is not hate I would like to know what the hell it is. Indifference? That is just a cop out.

    Too many rubbery words like “my friends opposite”. They are not our friends. They are the exploiters of working people and don’t forget it. Back in the old good old days at least we knew where the divide was. We were not foolish enough to be sucked in by devious world while the smiling assassins claimed they are doing it all for you.

    How long will it take comrades before we must act?

    The world is going to fry and we poor suckers with it.

    But oh no demonising and excluding gays from their democratic rights that’s more important than the environment, social justice and equity.

    PS: This is not directed at people of faith or not only to those who are so lacking in love they know no better than to marginalise, vilify and exploit their fellow beings.

    Just another case of cynical deflection while Rome burns.

    Some mornings I seem to get out of the right side of bed.

  10. diannaart

    @Jexpat

    That suggests to me that he’s going to triangulate on this and allow a conscience vote when he thinks it most politically advantageous to do so.

    Agree – too many votes to just ignore.

  11. Harquebus

    Marriage equality is important because, due to the over exploitation of resources, unfettered growth and rampant consumerism, the last species of human left on the planet is in great danger of becoming extinct.

  12. Annie B

    To Eva Cripps … a brilliantly devised and delivered article – thank you.

    @ Jexpat …. the conscience vote, is conducted in Parliament, by gov’t parliamentarians – before being passed for legislation ( as I understand it ). “He” will most likely allow a conscience vote ( possibly secret ballot ? – I don’t know ) …. to gain as much political kudos as he can – [ as you said.] … “He” will make it well known what he has permitted – to gain favour with voters.

    But I doubt he will have the guts, decency or integrity to then call a referendum on the issue. …. It is surely for the Australian people to decide what is what – and whether the Constitution should be changed to reflect acceptance of everyone’s right to choose a partner in life without gender specification …. As the article title suggests – simply ‘ a change of 5 words’

    At least the p m did have a brief flash of wisdom and truth, when he admitted divisions in his own family on the subject. …. His own sister is lesbian, and in a committed relationship. …. He allegedly supported her decision to live her chosen life-style.

    ……

    @ Fergolo11 ….. I cannot imagine where you have been hiding. …. To have said what you did, shows an incredible lack of understanding of human nature, of human sexuality, and of the needs and wants of a huge variety of people. You have suggested absolutely everyone must be labelled and packaged under the one umbrella …. man / woman / resulting children – full stop. ( that’s provided a marriage doesn’t end in divorce, ) ” The divorce rate in Australia is about 43 per cent.” http://www.aipc.net.au/articles/trends-and-statistics-of-the-contemporary-family/ ). … How does that sit with your moral inclinations ? Or, didn’t you know that either. ?

    You end your post with reference to ‘flawed attitudes’ ( speaking of homosexuals ) …. I suggest you attend to your own flawed attitudes, especially in regards to this subject. … Your crude reference to ONE of the sex acts performed by homosexual men, was crass and uncalled for.

    As Kerri said – that particular form of sex act, happens between heterosexuals also – and from my research, apparently on a much more frequent basis than previously realised ( by professional researchers ).

    I would suggest you bite the bullet and do some proper research, yourself.

  13. Florence nee Fedup

    I think I read, the Irish chose the referendum because they wanted to decision to be enshrined in their Constitution, did not want the next government to come along and repeal the legalisation.

    Same would apply here. Would be a dangerous move, as referendums rarely get the numbers in Australia.

    Any MP under our constitution has the right to cross the floor any time. There doesn’t seem to be many who has the guts to do so, in this day and age.

  14. jimhaz

    Just another example of Abbott not representing the majority of Australians and the non-segregation of church and state in his mind.
    In relation to a conscience vote, I fail to see how Abbott even as LNP leader would have the right to prevent a conscience vote, in my view it should not be up to a single leader but cabinet itself to determine whether conscience vote occurs or not. Abbott clearly is going to ignore the issue and continue to let the steam off by saying nothing, so the problem is the pro-GM LNP members have not been vocal enough.

    The next time the ALP gets a majority, Oz will have gay marriage.

    Not that I care that much either way as I don’t believe in anything having any sort of “appeal to authority” aspect over people personal lives – so marriage “piece of paper” is optional and in being optional is is not that important – it’s importance is limited to being a matter of principal, not an essential need.

  15. Jexpat

    The double majority requirement would also be divisive in the event that one or two states (not the ACT or NT) voted no, even though the rest voted yes and the national total (which includes the NT and ACT) was also yes.

    Thankfully, the High Court has ensured that we don’t have to go that route to achieve marraige equality.

    Having said that, there’s no reason why we couldn’t go that route, if we wanted to spend the money, go through the inevitable acrimony and accept the risks involved.

  16. Jexpat

    Year 8 being the level where Jammy’s march to emotional and intellectual maturity halted.

  17. diannaart

    Excellent article on issue at The Conversation – well above Year 8 level.
    🙂

    … preference would be for the state to stop interfering with marriage, but that is a topic for another day. Given that it does interfere, and differentiates between heterosexual and same-sex marriage, it better have very good reasons for doing so. As stated above, theology cannot do the heavy lifting because marriage is defined by the state not religion.

    The fact that some religions suggest same-sex unions are an abomination is also irrelevant. The liberal-democratic state should not be in the business of imposing the religious beliefs of one group on another group. A religious person who finds such unions contradict her faith should pause before entering into one, but she has no good reason for stopping other people from doing so…

    https://theconversation.com/same-sex-marriage-should-not-be-a-matter-for-a-conscience-vote-42247

  18. Awabakal

    What determines who is husband and who is wife? This is my husband … etc. Congenitally the male is husband, but in the changing world of definitions does this continue to be so?

  19. Zathras

    Poor Tony probably wants his legacy as PM to be a statement of his personal beliefs and hopes to shape the nation in that way.

    Imagine how he would feel if he was remembered as the PM who continued the child-abuse purge on his Church, including what awaits his confessor George Pell, and then went on to legislate for gay marriage.

    Karma?

  20. Pingback: Dear Eric - Australia Awaken - ignite your torches

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