Is all love really equal? Marriage is defined in the Marriage Act as the ‘union between a man and woman’. While sadly this legal definition has much conservative political support, it is surprising to discover that our newly appointed Prime Minister, Julia Gillard, shares such a sentiment.
As a heterosexual woman she exercised a choice not to marry, yet she denies these very same choices to gay or lesbian Australians.
Part of the problem with Prime Minister Gillard’s statement on marriage, is that it implicitly conflates secular and religious approaches to marriage. Civil marriages, those performed by the state, are a secular option for couples to formalise their relationship. In 2007, 63% of all marriages were solemnised by a civil celebrant rather than a religious minister.
While religion may saturate various political dealings, it should not dictate the meaning of legislation. Equality before the law and non-discrimination are fundamental human rights principles. Federal legislation should mimic this by allowing couples to marry regardless of their sexual orientation or gender identity.
Marriage is not the only way for couples to access durable rights and protections under the law. In 2008, the Federal Government amended over 85 pieces of legislation to recognise same-sex de facto couples in areas of parenting, immigration, taxation and superannuation law. Marriage was the notable exception.
Marriage is not simply about rights. It remains the fundamental means through which intimacy and citizenship is publicly legitimated and respected in this country. While legal entitlements between de facto and married couples are virtually the same, a lack of symbolic recognition for same-sex couples is troubling. Denying same-sex couples access to marriage, promotes a hierarchy of relationships. Couples are granted equal rights and entitlements but different statuses, essentially situating same-sex relationships as ‘inferior’ or ‘lesser than’ heterosexual ones. Such an argument is reminiscent of the segregationist policies that separated whites from blacks in the US in the 1950s. Is this the same logic we want to use to think about same-sex and heterosexual couples?
Despite the rhetoric of marriage as a universal heterosexual phenomenon, marriage is a constantly shifting institution. Opponents to same-sex marriage often romanticise the history of marriage in order to assert that permitting same-sex couples to marry will destroy its fragile foundations. History, however, tells us that contesting foundations is not such a bad thing. It was not long ago that women were transacted as property in marriage, moving from their father to their new husbands. We no longer restrict marriage between different racial or religious groups, as we did previously for Indigenous Australians or interfaith couples. Gender, race and religion have been pivotal sites for the regulation of marriage in Australia, but they have changed over time with progressive shifts in social attitudes.
Many opponents to marriage equality also cite reproduction as a core concern. As former Prime Minister, John Howard, opines, ‘…marriage, as we understand it in our society, is about children…providing for the survival of the species’. While this may be surprising to Mr Howard, marriage or sexual intercourse is not the sole means of facilitating reproduction. Same-sex couples can have children via surrogacy, foster care and adoption. If children are the impetus behind marriage, then denying the same-sex parents access to this, to provide the ‘ideal’ home for their children, seems counterintuitive.
Australia also falls behind many nations including; Canada, Spain, Portugal, the Netherlands, Belgium, Iceland, Norway, Sweden, South Africa and a number of US states (such as Massachusetts, Iowa, Connecticut and Vermont) who have now granted same-sex couples the right to marry.
If our new Prime Minister is truly committed to promoting tolerance and equality, she should support a change to a discriminatory law that currently denies individuals the choice to marry someone they love because they both have the same sex.
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