So, momentous occasion, the Senate Committee into the Marriage Equality Amendment Bill 2010 came back with a bipartisan decision in favour of marriage equality!
Now, as promised, I’m going to deconstruct the report for you as much as I can (I’m no lawyer) – All references are within the document of the report unless otherwise noted
The Recommendations are at the end of this article – the report was passed 4-2, with 1 Labor, 2 Liberals, and one Green supporter. There was one abstention.
There is also an additional from the senators who disagreed, explaining their position. Their position was not endorsed by the committee at large, and does not constitute a recommendation from the inquiry.
in support of marriage equality are as follows (p11):
- marriage equality will address the inequality and discrimination that same-sex couples confront in not being able to marry, noting that many same-sex couples value and wish to be able to participate in the institution of marriage;
- same-sex couples have a right to marry and a right to non-discrimination at international law;
- intersex and transgender people should be recognised in the definition of ‘marriage’ in the Marriage Act;
- marriage will provide psychological and health benefits to Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) people;
- there is increasing public support for marriage equality for same-sex couples, due to the recognition of marriage as a life-long, voluntary commitment between two people, regardless of their sex, sexual orientation or gender identity; and
- marriage equality for same-sex couples is recognised in an increasing number of overseas jurisdictions.
The Arguments against marriage equality (pp 26-27):
- marriage is, and should remain, between a man and a woman;
- children need both a biological mother and a biological father;
- the Marriage Act, as currently drafted, is not discriminatory;
- there is no ‘right to marriage’ for same-sex couples; and
- marriage equality for same-sex couples is a ‘slippery slope’ to the recognition of other relationships, such as polygamous relationships, as marriage.
Most of these arguments need no further explanation, however there are a couple I would like to explore and critique.
I recognise that for these things to get through, politicians need to value them. In theory, this means that people should value them. But we elect our officials in the belief that they can and will make right decisions on our behalf, whether they are popular or not. Howard’s GST springs to mind as an example of a decision that was not popular, but was right. Marriage equality is right. Having popular support really shouldn’t be a valid argument. It should be something that encourages politicians to act, but it is not an argument for or against marriage equality in itself.
“marriage is, and should remain, between a man and a woman” (p26)
When I first encountered this statement, my reaction was that this was a position statement and not an argument at all – It is a statement of the status quo and an iteration that the arguer believes the status quo should stay in place. Reading the report further, however, reveals that the statements supporting this argument are inherently religious, to the point that there was no submission referenced arguing for this position which was not from an organisation heavily associated with either Judaism or Christianity. (pp27-28) Proponents of Marriage Equality point out that marriage is not an immutable institution and same-sex marriages are shown to have existed in Ancient Rome, Spain, and China.(p29)
the Marriage Act, as currently drafted, is not discriminatory
People in support of this statement point to the Same Sex Law reforms in 2008, granting same-sex couples de facto status. (pp33-34) Family Voice Australia suggested that “Marriage law prohibits children from marrying, which could be described as ‘discrimination’ on the basis of age.” and “prohibits close relatives from marrying, which could be described as ‘discrimination’ on the basis of kinship…Recognition of reality is not unjust discrimination.” (p33)
The committee’s response, (section 4.5, p51) sums up my response to this: “The committee strongly believes that providing true equality means that all couples should be treated ‘equally’ – ‘separate, but equal’ is simply inadequate. ”
“allowing all couples access to marriage – regardless of their sex, sexual orientation or gender identity – will only strengthen the institution of marriage, and increase its value and importance.” p51
Marriage equality is about rights and removal of discrimination
While “the Australian Government’s same-sex law reforms in 2008 represented significant progress in removing discrimination against same-sex couples,… those reforms do not, in fact, provide the full equality to which same-sex couples are entitled.” (p51)
“true equality means that all couples should be treated ‘equally’ – ‘separate, but equal’ is simply inadequate. Marriage is about two people in a committed and loving life-long relationship, and it has nothing to do with sex, sexual orientation or gender identity.” (p51)
They also noted that Marriage Equality has profound positive implications for the mental health of GLBTI individuals(p52) , and that the issue could not be “dismissed simply as an issue being pursued by a minority group” (s4.7, p52), that they “received evidence and submissions in support of marriage equality from a broad and diverse range of organisations and individuals, including parents and friends of same-sex couples, churches and church leaders, politicians, groups representing young people, and mental health experts.”
Marriage is a secular institution
“Marriage in Australia is a secular institution available to both religious and non-religious heterosexual couples. Ministers of religions are able to solemnise marriages – but they are not obligated to solemnise all marriages.”(p52)
The committee found that “marriage equality for same-sex couples is not an inherently religious issue”(p52) and “that it is important that religious objections to marriage equality for same-sex couples are not given disproportionate weight in this debate.”(p53)
Evolution of marriage in modern society
The committee recognised that traditionally in Australia, Marriage is between a man and a woman, but that “tradition can never be used as an argument in favour of maintaining discrimination” (p53)
Impact of marriage equality on children
“The committee does not agree with arguments presented during the inquiry which suggest that children always ‘do best’ with married, biological parents. There appears to be no scientific basis for assertions that LGBTI persons are less fit to become parents than heterosexual couples.” (p54) Instead they found that “there is substantive empirical evidence that refutes absolutely the arguments about children ‘doing better’ with heterosexual parents.” Making reference to two separate studies by the Australian Psychological Society and the American Psychological Association.
Marriage equality for same-sex couples is not a ‘slippery slope’
There’s just no evidence that this will lead to legal recognition of polygamous/polyamorous relationships. (p55)
Public support for marriage equality
The increase in public support was noted, but it was emphasised that the committee’s decisions on the issue were not based solely on public opinion. Elsewhere in the report (s1.44, p9) they note that these submissions are not simply a numbers game, despite what both sides of the debate suggested during their campaigns.
Conscience vote on marriage equality legislation
“While the committee is strongly supportive of the principle of marriage equality for same-sex couples, it also recognises that marriage equality is an issue which provokes strong and impassioned sentiment in the community.” “Against this background, the committee would like to comment on the issue of a conscience vote in the parliament on the issue of marriage equality. ” “historically with respect to votes on legislation to amend the Marriage Act, political parties in Australia have allowed members of parliament a conscience vote on the issue. It is also interesting to observe that, up until 2004, every piece of legislation related to marriage which has come before the federal parliament was designed to expand the opportunities for marriage and to extend protection to people in a marriage-related environment.16 The three bills before the parliament – Senator Hanson-Young’s Bill, the Bandt/Wilkie Bill and the Jones Bill – also attempt to remove current limitations in the Marriage Act to expand the opportunities to marriage to same-sex couples. Accordingly, the committee considers that it would be in keeping with tradition for political parties to allow their senators and members a conscience vote on these bills.”
As an aside: the aberration in 2004 is where the Howard government enacted the amendment to the Marriage Act explicitly stating that marriage was between “A man and a woman” as well as precluding any recognition of same-sex marriages overseas as marriage.
The committee recommends that all political parties allow their federal senators and members a conscience vote in relation to the issue of marriage equality for all couples in Australia.
The committee recommends that the definition of ‘marriage’ in item 1 of Schedule 1 of the Marriage Equality Amendment Bill 2010 be amended to mean ‘the union of two people, to the exclusion of all others, voluntarily entered into for life’.
The committee recommends that the Marriage Equality Amendment Bill 2010 be amended to include an application, or ‘avoidance of doubt’, clause which expressly provides that the amendments made by Schedule 1 of the bill do not limit the effect of section 47 of the Marriage Act.(Section 47 of the Marriage Act is the section which states that a celebrant is not obligated or required to solemnise a marriage against their wishes.)
The committee strongly supports the Marriage Equality Amendment Bill 2010 and recommends that it be debated and passed into law, subject to the suggested amendments set out in Recommendations 2 and 3.