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Marriage equality, a matter of conscience

Gay-Australia, image by Archer Magazine

Gay-Australia, image by Archer Magazine

The impetus for marriage equality has been gaining ground for quite some years. Perhaps it’s the pragmatism of most Aussies, or the sense of justice which we place as a primary value which has lead a good majority of Australians to agree that our gay and lesbian citizens should be afforded equal rights under the law – the right to marry if they should choose to do so.

Gay and lesbian couples are currently able to marry in 15 countries which include France, The Netherlands, Spain, Canada, South Africa, New Zealand, Sweden, Portugal, Iceland, Denmark, Uruguay, Belgium and Argentina.

They can also wed in 13 states of the United States, and on the 17th of July this year England and Wales legalised gay marriage after Queen Elizabeth II provided the Royal Assent. As of next year, couples in England and Wales will be entitled to both civil and religious ceremonies, the latter at the discretion of individual religious organisations.

At the Federal level in Australia, the debate for and against marriage equality has been disappointing. Although former PM Gillard allowed a conscience vote on the issue, she herself voted against it reasoning that, as she did not believe in the institution of marriage per se then she could not vote in support of it. However, one might argue that although an existing discrimination does not effect oneself, is this reason enough to vote against legislation which would rectify the situation?

Tony Abbott has always treaded lightly when it comes to the issue of marriage equality, perhaps fearing that his own conservative Catholicism might have become an issue.

Some hope was given to the gay community via this interview as reported March 2010 by Crikey:

Abbott admitted to a “very poor choice of words” on 60 Minutes. Though, he told presenter Doug Pollard today: “I think blokes of my generation and upbringing do find these things a bit confronting. Anything that’s a bit different can be confronting.”

Abbott pleaded for time to, “I suppose, come to a more balanced and nuanced understanding of these things”. “Don’t hang me, please Doug, for an ill-chosen word,” he said.

“Yes, I am quite a conservative bloke. I do have a traditional background but it doesn’t mean I’m incapable of understanding the complexity of modern life.”

Gay groups have immediately welcomed Abbott’s apparent support for anti-discrimination legislation. He told Joy he was personally “not against the idea . . . in principle I would support it”.

However, what is said during an interview and Abbott’s deeds are often quite different from each other.

Additionally, what Tony Abbott says to one group of people is quite different when he has a different audience to appeal to, as by 2013 Abbott’s coming to a “more balanced and nuanced understanding” appears to have completely evaporated.

In the space of a few hours Opposition Leader Tony Abbott has called marriage equality “the fashion of the moment” to a conservative radio host and “a significant issue” to a group of reporters, leaving the LGBTI community unclear as to his position on the issue.

Tony Abbott has always made it clear that in spite of his attitude towards homosexuality being somewhat ambiguous stating that he “feels threatened by gays” while he himself has a sister who is lesbian, that he will never countenance the likelihood of any government which he leads ever supporting marriage equality.

Populism, thy name is Tony Abbott.

More than Tony Abbott’s attitude of feeling “threatened by gays” has been Abbott’s lack of intestinal fortitude when dealing with rabid homophobic Cory Bernardi.  One would have to suspect that Bernardi’s comments are more akin to Abbott’s own opinion due to Abbott’s failure to make any decisive statement concerning Bernardi’s comments. Admittedly Bernardi did resign from his position as Deputy Manager of Opposition Business 2012, but was only mildly rapped over the knuckles by Abbott.  Abbott was to describe Bernardi’s comments as ill-disciplined, nothing more.

By June 18th 2013, nothing had changed with the Sydney Morning Herald reporting:

Senator Bernardi also stood by his controversial comments last year that the “next step” after recognising same-sex marriage was to support “creepy people” who chose to have sex with animals.

“Bestiality, of course it was an extreme example, but once again it’s linked to the radical agenda of the Greens Party,” he said.

The Fairfax media unable to extract an opinion from Tony Abbott concerning Bernardi’s extreme and offensive remarks, instead interviewed Malcolm Turnbull:

Malcolm Turnbull told Sky News none of the countries around the world that had legalised same sex marriage had gone on to legalise polygamy.

‘‘And the remarks about bestiality are obviously very extreme and extremely offensive and I dissociate myself from them completely,’’ he added.

Mr Turnbull thought it ‘‘quite likely’’ that Mr Abbott would allow the Coalition a conscience vote on legalising same sex marriage in the next Parliament.

Malcolm Turnbull was clearly over-optimistic in the belief that Abbott would contemplate even the remotest of likelihoods that same-sex couples be permitted marriage equality.

On September 16th, the ACT government introduced a bill to legalise same-sex marriage.

The ACT government has a long history of advocating laws to recognise same-sex partnerships, dating back to its civil unions legislation in 2006, which was quashed by the Howard government but re-enacted last year.

”This is something that I have consistently, albeit quietly, championed,” Mr. Corbell [ACT Attorney-General] said. ”It would be something I would be very proud of if the territory were to become the first jurisdiction in the country to legislate for same-sex marriage.”

It has now been confirmed that the federal government will challenge the ACT’s same-sex marriage laws in the High Court as soon as they are passed, or as per Corbell’s statement, as soon as they become operational. Brandis has already issued a warning to gay couples against marrying under ACT’s laws.

As per Mr. Corbell’s previous prediction, George Brandis has confirmed that his government will argue against marriage equality laws on the basis of “consistency”:  that the territory’s laws are inconsistent with the Commonwealth Marriage Act. However, I suspect that the real impetus comes from Brandis’ statements suggesting that any reform is ”a threat” to the ”well-established position” that marriage laws are a Commonwealth matter. Or judging by Brandis’ previously stated opinion that “marriage is defined by custom”, that the security of this “custom” is perceived by himself as under threat.

Brandis:

Mr Deputy President, it is true that marriage is defined by law but, equally and importantly, marriage is defined by custom. In the whole history of our civilisation there has never been a time at which marriage was understood to be other than a relationship between a man and a woman.

I’m not surprised but I’m disappointed that there is a failure to acknowledge that this fundamental matter of inequality needs to be addressed.

In 1935 the “half-caste women of Broome” petitioned the WA Parliament declaring:

Sometimes we have the chance to marry a man of our own choice . . . therefore we ask for our Freedom so that when the chance comes along we can rule our lives and make ourselves true and good citizens.

Today, in 2013 we have the chance to allow our gay and lesbian citizens the same rights to marry, and for all Australians to achieve the same rights as did “the half-caste women” in 1935.

As a note: The reasoning given by Attorney-General George Brandis for his government challenging the validity of same-sex marriage rights is “inconsistency” with the Commonwealth Marriage Act. What then happens to Tony Abbott’s promise to shock-journalist Andrew Bolt to repeal section 18C of the Racial Discrimination Act (the section under which Bolt was convicted), thereby making federal legislation inconsistent with States’ and Territories anti-discrimination laws?

We have a battle, it seems, not just with a matter of conscience but also with a matter of consistency. Neither is making any sense. Discrimination (or populism) wins out against both.


23 comments

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  1. Adam Smith

    Roman Catholics do not allow their male Priests to marry. From the beginning of RC history we should connect these following words (look up their meaning in the dictionaries) to discover how the masses must be ruled: Individualism, Catholicism, Absolutism, Despotism. Then ask the question using the words, freedom (Speech), want (equality of opportunity), fear (equality under democratically agreed constitutions).

  2. Jan Dobson

    The argument against marriage equality so bemuses me, that aside from showing support when the issue is raised, I rarely follow the argument any more.

    I am confused by the argument that marriage equality for the the GLBTIQ will lead to polygamy, however. “Malcolm Turnbull told Sky News none of the countries around the world that had legalised same sex marriage had gone on to legalise polygamy”.

    What is so wrong with polygamy, in the context of consenting adults? And more importantly, what is wrong with us that we have to demonise another’s lifestyle to prop up our own?

  3. Carol Taylor

    Jan, I am likewise amused by the anti’s arguments. Are they saying that any changes to the Marriage Act would result in changes to our society which are not a part of our culture? Then perhaps we should return to “the good old days” of pre-1961 when there was no Marriage Act and all issues relating to marriage were States Rights.

  4. Terry2

    Is the Commonwealth bound to test the Constitutionality of the ACT legislation in the High Court early in its implementation rather than let it through and find at a later date that it is unconstitutional and thus cause a lot of heartache ?

    Just asking.

  5. Terry2

    So it goes to the High Court: pity Michael Kirby has retired !

  6. Bacchus

    The territories are a special case under the constitution Terry2 – the commonwealth parliament can legislate to override any law passed by the ACT or NT governments. Prior to 2011, this could happen at the whim of a federal government minister – now it must be passed by the parliament.

    Refer section 122 of constitution, and the Northern Territory (Self-Government) Act 1978 and the Australian Capital Territory (Self-Government) Act 1988.

    States are a different kettle of fish…

  7. Kaye Lee

    “THE Commonwealth is throwing down the gauntlet to the ACT on gay marriage as legal experts in Tasmania say there’s no reason states shouldn’t be able to make their own laws on the issue.” Brandis says “it is clearly in Australia’s interests that there be nationally consistent marriage laws” and that “the ACT’s law would be “a threat to that well-established position”.

    That doesn’t sound like a justifiable legal argument to me.

  8. Fed up

    Bacchus, Abbott still has to go through parliament.

    I know years ago that the Family Law act is Federal Law. WA had it own court. I still do not know if this is still the case.

    We all know, High Court decisions, especially those that relate to the Constitution can go either way.

    Still as ACT is saying, they are not changing or interfering with the Federal act, which is between men and women.

    What they are doing, is setting up a new act for same gender, which does not exist now.

    As for saving our culture, we are soon going to be one of the few countries, that does not allow such unions.

    Why not allow, one of the bills that are already in the parliament be put to conscientiousness vote, and get on with governing. It only a short matter of time, when this happens anyway.

  9. Fed up

    Adam, this has nothing to do with religion, nothing at all.

    No one is forcing any church to marry anyone.

    Many, in fact most, today, marry with no contact with any church.

  10. Carol Taylor

    Terry2 and your question @ 4.42pm. The Commonwealth is not obliged in any way to test the constitutionality of the ACT’s legislation at all. The Commonwealth could have accepted this legislation without comment, allowing same-sex couples of marry in the ACT.

    Instead Abbott has chosen to test this legislation in the High Court under the issue of States’ rights. This is giving regard to the fact that prior to 1961 the States not the Commonwealth were responsible for all issues pertaining to marriage. As we all know, all registrations reside with the States and Territories eg. you have a Victorian birth certificate and a West Australian marriage certificate and must apply to the States and Territories for these – you must comply with all State legislation when you choose to marry.

    Therefore, what is going to happen is that the ACT will pass their legislation probably before Christmas and..people will most likely marry. George Brandis then intends to step in, challenge the rights of these people to marry and he hopes to have these people’s marriages declared invalid.

  11. Nerrilyn Diefenbach

    Thank you for this article. Indeed the impetus for Marriage Equality is gaining ground and will continue to do so. As it should.

    What this article strongly reinforces to me is that the Abbott led Government is the “say one thing, do another” government. Surely this goes to the very basis of trust, the very thing that our previous PM was so maliciously, and in my opinion, unfairly maligned for on a daily basis.

    I was very disappointed in Gillard’s stand on this issue, but at least she has been consistent and backed up her opinion with an intelligent and rational argument. Personally I think her argument is weak but I can at least respect and accept her opinion. I cannot however, respect anything about the Coalition’s stance on this issue because it has been so deceitful.

    Like Jan Dobson I no longer bother engaging in the debate of Marriage Equality with those who base their opinion on the bible as the whole exercise is ridiculous and a waste of time. Similar to trying to reason with someone who is drunk.

    I strongly believe that Marriage Equality is a right to which all adult Australian Citizens should be entitled to by law. As a child I grew up believing that one day I could marry and have a family. There were no conditions placed on this. I did eventually marry and have a family and no religious institution played any role in the process. I believe the responsibilities, securities, respect and dignity that come with a legal commitment to marriage should be available to all Australians as a birth right. It should not be denied to some due to the hubris of those who believe that religious institutions own marriage. They don’t.

  12. Carol Taylor

    Nerrilyn, I agree absolutely. One argument is that churches will be *forced* to marry gay people. This is misleading – religious organisations have always been free to perform services at their own discretion, for example some churches will not marry you if you are not of their congregation, other churches will not marry you if you are divorced.

  13. Phil go man

    Of course brand is and abbot and their mates are staunch defenders of marriage and weddings as they are a source of income for them

  14. Carol Taylor

    Phil, then if their gay friends were allowed to marry think of all the extra weddings they could claim expenses for…

  15. abbienoiraude

    It is a strange twist of the mind that those against marriage equality will stand on their religious box and declare sex outside marriage is wrong; sex with anyone else but your spouse is wrong; sex within lawful marriage is the only way to express love. So I guess ‘sex’ is the obsession with those against recognition of Marriage Equality.
    In 1935 ‘half caste’ women demanded the right to marry who they want.
    Sounds stupid now.
    There was a time in Australia that our indigenous brothers and sisters could not marry outside their ‘race’.
    Sounds stupid now.
    Well…now Conservatives are ‘sounding stupid’ because when it all comes down to it they are not interested in ‘law’ or ‘morals’ or ‘definitions’…they are really really obsessively sick about SEX.
    Marriage is more than that. It is a matter of personal decision, it is a matter of public declaration of an agreement between two people to care for, stand by, nurture, help support ( as well as being intimate with) another human.
    Time for these humourless people with their archaic attitudes and sick obsessions to move aside so that full equality can be given to another section of our progressive and functioning society.

    (BTW; Wasn’t it Howard who changed the reading of the law to say ‘between a man and a woman’? It has not ‘ever been thus’…one man recently changed the ‘marriage act’ to be read in this narrow way)

  16. Carol Taylor

    Abbienoiraude, yes it certainly was Howard to changed the Marriage Act in 2004. Lesser known is the fact that at the same time, he also changed the Family Law Act preventing gay couples adopting overseas. The suspected reasoning behind this was that gay couples were receiving publicity for being caring, nurturing parents of their adopted sons and daughters – Howard did not want gays to partake of any family life.

    Prime Minister John Howard will introduce changes to the Marriage Act to exclude gay couples and ban same-sex couples from adopting children from overseas, Mr Howard said today.

    “We are also going to amend the legislation to ensure that same sex couples … will not be eligible as prospective adoptive parents under any multilateral or bilateral agreement concerning the adoption of children to which Australia is a party,” he told reporters.

  17. Adam Smith

    @Carol Taylor, no one should be ‘bemused’ by the types who’ve tried to limit sexual plurality. These types are ‘slavers’ they are mean persons and they can do great harm to millions of people. I remember very well the “howard-styled-biggotts” with their hatreds and how they did everything in their power to prevent the destruction o apartheid. So chaining people to their peculiar laws on marriage is the ongoing saga. These people are evil, if they were not, things would be entirely different.

  18. Fed up

    “Populism, thy name is Tony Abbott.”

    Yet, he has never been popular.

  19. Fed up

    Carol, I can see many new jobs being created in the ACT. I can see that little chapel being booked out, for years to come.

    I suspect some of these people might be big spenders.

  20. Fed up

    PS. New job for you, as a marriage celebrant???

  21. Fed up

    Thanks to Howard, the Commonwealth marriage act is between an man and woman. The ACT will only between same gender people. Yes, nothing to do with, a marriage between men and women, Therefore, how can the two acts be in conflict.

    Yes, Howard, changing the wording, left the door open for States and Territories to make their own laws. Marriage is a shared responsibility.

    So it divorce I believe. The states handed their power over to the Commonwealth with the exception of WA.

    As far as I know, WA still have their own Family Law courts

    No one can predict how the High Court will rule on any matter, especially that of the Constitution.

    The trouble for Abbott. all will have to be debated within Parliament.

    It would make more sense, for Abbott to let give his party a conscience vote, and let the Greens bill through.

    It is only a matter of time, before this occurs.

    All Abbot can do, is postpone the inevitable.

    It is not going to go away, as the republic debate did.

  22. Fed up

    “,,,,,,,,,,,,,n August 13, 2004, in a debate punctuated by rage and tears, the Senate passed a Howard government amendment to the Marriage Act banning same-sex marriages.
    Exactly 45 years earlier, on August 13, 1959, in the midst of debating Australia’s first national Marriage Act – the one Howard later amended – the House of Representatives erupted at the news an Aboriginal woman had been denied permission to marry.
    In Darwin the protector of Aborigines had refused Gladys Namagu permission to marry her white fiance, Mick Daly. In response to questions from the opposition, the Menzies government promised such discrimination would never be written into Australian marriage law.
    This coincidence highlights the direct link between the way Aborigines were once denied freedom to marry the partner of their choice and how gay and lesbian Australians are denied the same freedom today.
    Yet the link runs deeper than infringing the princi……………”

    http://www.abc.net.au/unleashed/2778326.html

    Some history.

  23. Adam Smith

    @Fed up, you are correct, I should have prefaced my proposition, upon the basis, that the reported beliefs held by Abbott et al vis-a’vis the R.C., may be in danger of damaging our individual rights, as are currently recognised by the Constitution of Australia as amended.

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