“This is a vote that is not about morality, that is not about religion. You can’t legislate morality, but you can legislate justice.”
The words of Senator Eric Schneiderman, New York Attorney General, are a poetic reminder of why the New York Senate passed legislation allowing same-sex couples to marry. On Friday, New York became the sixth state in the US to remove discrimination in marriage laws, joining Iowa, Massachusetts, Vermont, Connecticut and New Hampshire.
This decision comes amidst a range of local and international moves in the past month to recognise the civil rights of sexual and gender minorities. In a historic move, the majority of countries in the United Nations Human Rights Council passed a resolution condemning violence and discrimination against people on the basis of sexual orientation and gender identity.
Closer to home, hours after the announcement in New York, the Western Australian ALP passed a motion in support of marriage equality at its State conference, joining the chorus of the ALP in Queensland, Tasmania, South Australia, ACT and the Northern Territory.
What remains to be seen, however, is whether these international trends for recognition will shift policy debates in Australia.
After the announcement, Prime Minister Gillard rearticulated that she would do what was in the interests of Australia’s future, as a nation. The Prime Minister’s rationale for denying same-sex couples access to marriage, however, seems to be based on the past – that it has a “special status” in Australian history and culture.
Anglican Archbishop Peter Jensen has used history to highlight similar concerns, arguing that same-sex marriage “imposes, through social engineering, a newly minted concept of marriage on a community that understands it in quite another way.’‘
What is problematic though, is that both the Prime Minister and Archbishop Jensen’s “historical” arguments effectively obscure the fact that legislation regulating marriage has never been static in Australia.
We only need to reflect over the past century to note that women were once considered contractual objects under marriage laws. Common law immunities enabled marital rape, as women lost their capacity to say no to their husbands once they were married. Such legislation was underpinned by the belief at the time that it was “natural” for women to have children, and therefore essential that their marital responsibilities be confined to domestic care giving.
Correspondingly, if Archbishop Jensen’s religious convictions to avoid the radical “social engineering” of marriage were a consistent theme throughout our history - then women would still be considered property of their husbands, there would be no right to no-fault divorce, and there would be legislative exemptions to discriminate against employing married women.
What this kind of troubling rhetoric gestures to is the problematic confusion of religious marriages with the state regulation of marriage. Faith-based arguments often causally relate marriage with children. While not an unsurprising connection, it has no bearing on the way the current Marriage Act is framed.
If the policy rationale of the Marriage Act were to provide for biological reproduction, then why is this not expressed in the objects of the Act itself?
Perhaps this is because while children may be an important social or religious reason for marrying, it is not an appropriate issue for the Government to mandate. In a secular democracy, that purports to separate Church and State, religious opinion should not dictate the meaning of legislation.
Moreover, with the majority of all marriages in Australia are performed by a civil celebrant, it is clear that there are many married couples who view their relationship in non-religious terms.
Marriage equality is an issue about respect and visibility. As the UN Human Rights council observed in the Universal Periodic Review of Australia, it does not matter if you are a heterosexual or same-sex couple, legislation should confer the same level of relationship recognition.
Many countries in varied regions across the world now permit same-sex marriage: Argentina, Netherlands, and South Africa to name a few. A recent Galaxy Poll highlighted that approximately 80 percent of Australians believe marriage equality is inevitable in Australia, with about 60 percent supporting this change.
So why does the Prime Minister refuse to accept what seems to be changing trend?
This should not be a debate about religious or cultural inheritances - it should be seen as an issue of legislative equality. Permitting couples to marry irrespective of their sex or gender is about ensuring the rights of all Australians citizen to non-discriminatory relationship recognition.
While convincing our Prime Minister is important, the push for marriage equality must have bipartisan support. As the decision in New York exemplifies, support for equality and non-discrimination should not be at the whims of which political party assumes control. Justice should be apolitical.
With the changing international landscape, how can we legitimately claim that we are committed to equality and the “fair go”, while legislation in our own country continues to discriminate?
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