Filed under queer

Why marriage equality advocates should thank George Brandis

The High Court decision is in, and the Marriage Equality (Same Sex) Act 2013 (ACT) is no more. Five days after the first same-sex marriages were celebrated in Canberra, those marriages are now void and the law is no more.

Naturally, a lot of people are disappointed that what seemed like an achievable path to same-sex marriage has now been shut off. But as I blogged earlier today, the notion of pursuing separate marriage laws for each State or Territory seems woefully misguided, especially as what that would achieve might well be the enactment of some sort of same-sex marriage framework, but it certainly isn’t the ‘marriage equality’ it’s been sold to us as.

Instead of lamenting the Court’s entirely sensible and reasoned (and unanimous) decision to invalidate the ACT law, we should thank George Brandis and the Commonwealth government for their efforts in illuminating the pathway to genuine marriage equality – an amendment to the Marriage Act 1961 (Cth) that reforms the institution of marriage to be genuinely inclusive of all people – not just heterosexual and homosexual couples, but bi, trans* and intersex people too.

Brandis could have just let the ACT law pass quietly and, barring some other party having standing to challenge it, the States and Territories could have each passed their own little same-sex marriage laws, people would have gotten frocked up in rainbow bow ties and mums would cry – and the hets-only federal law would have continued as the gold standard with no further political agitation for change. Real marriage under the Marriage Act, marriage-lite on a state-by-state basis. Instead, the momentum for change will just grow, and now there is only one way forward: the federal law must be amended.

Thanks, George. You just painted a big rainbow target on your own forehead.

Some more observations on the judgment over the fold.

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Same-sex marriage and the High Court

Australia saw its first same-sex marriages over the weekend, in Canberra. The predictable 12:01 a.m. ceremonies, the newspaper pictures of beaming gay couples in matching outfits, the rainbow flags and lofty statements about our rights, all overshadowed by the High Court case that threatens to undo it all after a few days.

For five days, the ACT has been the first jurisdiction in Australia to legislate for same-sex marriage, and later today we’ll know if that law has withstood a constitutional challenge from the federal government. My guess is that the court will strike the ACT marriage law down, and with it those 12:01 am marriages.

As much as that decision will dash the hopes of many supporters of marriage equality in Australia, I think it’s the right thing for the Court to do. I have been following the case with interest: I even watched some of the online video of the oral arguments. To my only partially-trained eyes, the Commonwealth’s argument seems pretty sound: the constitutional framers’ intention was clearly to have a single system of marriage in Australia (indeed, they explicitly argued against the patchwork approach of the US and other countries) and the passage of the Marriage Act in the early 1960s was the, albeit delayed, achievement of that goal. The Commonwealth has exercised its power under the Constitution to define the boundary between people who are ‘married’ and those who are ‘unmarried’ at law, and that means any state or territory law that tries to redefine that boundary must be invalid.

The ACT’s argument is that, because the Commonwealth Act only regulates opposite-sex marriages, that leaves an open space for States and Territories to regulate same-sex marriage. But both Acts are trying to achieve the same legislative end – determine who can claim the status of marriage, and I don’t see how the High Court can realistically leave the ACT law in place. We’ll know in a few hours.

In any case, I don’t think the approach of pursuing marriage reform on a state-by-state basis is right. If we are pushing for marriage equality, that can only mean reforming the existing institution of marriage – not the creation of a set of parallel institutions that all claim the status of ‘marriage’. For marriage equality to be real, we need one institution that treats all relationships the same way, not a series of separate-but-equal attempts to circumvent the Commonwealth Parliament’s failure to legislate.

Australians in de facto relationships, which in every jurisdiction includes same-sex couples, already enjoy nearly identical rights to those who are married, so the idea that we can achieve ‘marriage equality’ by setting up nine different systems of marriage across Australia seems hopelessly misguided. It’s hard for me to see how this is a step forward.

Unlike our cousins in the US, Australia’s push for marriage equality is largely symbolic. We don’t depend on the status if marriage for practical rights, because we already have de facto relationship rights that are virtually indistinguishable from those enjoyed by married people. That doesn’t mean we shouldn’t continue pushing for the Marriage Act to be reformed – we should, and it’s hard to find anyone who doesn’t believe that, eventually, reform will come. But the push for state and territory based same-sex marriage laws turns marriage in Australia into a Rube Goldberg contraption of interacting and conflicting provisions that change when you cross from one state to another: that may be fine for people who want to wear matching suits and pledge their commitment at 12:01 am ceremonies in chilly Canberra (and who can blame them?) but it’s not ‘marriage equality’.

I fully expect that, later today, the High Court will strike down the ACT marriage law, and Canberra’s five days of rainbow weddings will be over. When that happens, we should not see it as a step backwards for marriage equality, but a step towards it. Because it’s only by changing the Commonwealth Marriage Act that we can achieve the equality we say we want.

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The week: 25 May

This is a bit of an experiment. Seeing as how I rarely write anything for the blog these days, I’m going to try to do a weekly post with lots of links to interesting things I’ve noticed during the week, a bit of personal narrative and maybe a photo or two.

Selfie, 21 May

Selfie, 21 May

I came home from university on Monday feeling rather brilliant after getting my two major essays back, both with ‘A’ grades. Then I read this blog post by Daniel Reeders and this review by Dion Kagan and I realised I was just an old duffer again. Daniel’s insightful analysis of a real-world encounter with HIV stigma, and Dion’s brilliant synthesis of multiple streams of nostalgia and documentary-making, put my first-year legal blatherings in their rightful place. Thanks to Dion I now have the terms ‘melancholic disavowal’ and ‘traumatic unremembering’ at my disposal.

Still on the subject of stigma, last week I had the opportunity to talk about the stigma that is increasingly apparent around hepatitis C virus infection among HIV-positive gay men, at a public forum hosted by Living Positive Victoria. I recently came across Gareth Owen‘s 2008 paper ‘An “elephant in the Room”? Stigma and Hepatitis C Transmission Among HIV‐positive “serosorting” Gay Men’ that examined this issue and I used some material from that paper in my talk. One sample quote:

‘The hep C situation on the scene is much like HIV was in the early days, so guys will avoid having sex with other guys who they definitely know have hep C. Though they tend to assume that guys don’t have hep C if it isn’t mentioned.’

I also used some anonymised quotes from a prominent serosorting/bareback hookup site to support my observations – I found dozens of texts like ‘žnot on here to get hep c guys so please be upfront about it’ and ‘I’m Hep C neg and not really into putting that at risk, being poz is enough as it is.’

It’s impossible to ignore the obvious parallels with similar statements made by HIV-negative guys about HIV.

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Our journey is not complete

President Obama’s second inaugural speech was, unsurprisingly, lofty and brilliant. A gloriously anaphoric section towards the end of the speech has been much shared on Facebook today:

It is now our generation’s task to carry on what those pioneers began.  For our journey is not complete until our wives, our mothers, and daughters can earn a living equal to their efforts.  Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well.  Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.  Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country.  Our journey is not complete until all our children, from the streets of Detroit to the hills of Appalachia to the quiet lanes of Newtown, know that they are cared for, and cherished, and always safe from harm.

Anaphora is one of the most effective rhetorical devices used in speech making. It was popular with Churchill and Martin Luther King, Jr., among many other great speakers. Shakespeare was fond of it, too (“This royal throne of kings, this sceptred isle, This earth of majesty, this seat of Mars…”). I’ve even been known to use it myself (take a look at the third paragraph of this World AIDS Day speech).

Anaphora gives the language a poetic flavour, and deftly delivered (Obama’s great strength) it enables the speaker to modulate the energy of the speech, building to a crescendo and falling back to a gentler tone, as you can hear in the short clip above. It’s a technique some of our Australian politicians (and their speechwriters) could benefit from learning.

A great speaker and a competent president. Perhaps, four years from now, a great president. I hope so.

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Number one

The number one song in Australia this week is an anthem for same-sex marriage, Macklemore & Ryan Lewis’ Same Love featuring Mary Lambert. It’s a great song with a powerful message about equality and civil rights. So why are our political leaders so out of touch?

Macklemore and Lewis’ chart success comes at a time when both the Australian Prime Minister and the Leader of the Opposition are steadfastly opposed to marriage equality, as are the vast majority of our politicians. Marriage equality bills in both the Senate and House of Representatives were comprehensively defeated last September. Attempts to get same-sex marriage legalised on a state-by-state basis (which I have some issues with) seem to have foundered.

Australia seems no closer to achieving marriage equality today than eight years ago, when Labor and the Coalition combined to pass the Marriage Amendment Act 2004, which first defined marriage with those “one man and one woman” words we’ve heard so many times since.

But public support for gay marriage is at an all-time high. Every time a survey is conducted, the percentage of people in favour of marriage equality creeps ever higher. Across political lines, and across almost every demographic, a clear majority of people is in favour of removing this arbitrary barrier to equal treatment before the law. So why are our politicians so out of touch?

Throughout the history of civil rights, courageous politicians have stood up for what they knew was right, even when doing the right thing was not doing the popular thing. From the abolition of slavery in the US to the abolition of the  White Australia policy in Australia, courageous politicians have stood up for what is right and just, because that is what they are there to do.

Twenty years ago, in 1993, I was one of a small crowd of queers who sat, outside the NSW parliament, into the night to support a conservative politician, Ted Pickering, who that night provided the deciding vote needed to pass anti-gay vilification laws in that state. A small step on the road to securing our rights, and one that could not have been taken without one man stepping up to do what he knew was right, even though his party and the majority of his constituents thought otherwise?

Where are the Ted Pickerings of today? What became of the politician with a conscience, who saw past his/her next reelection bid and had the courage to do what was right, instead of what was popular or, worse, what the church, or industry, or x powerful lobby group, happy?

We press play
Don’t press pause
Progress, march on!
With a veil over our eyes
We turn our back on the cause
‘Till the day
That my uncles can be united by law
Kids are walkin’ around the hallway
Plagued by pain in their heart
A world so hateful
Some would rather die
Than be who they are
And a certificate on paper
Isn’t gonna solve it all
But it’s a damn good place to start

It’s young people, of course, who mostly listen to new music, and they’re the demographic most clearly in support of equal marriage rights. They have lived their whole lives in a world where acceptance of different sexualities and genders is more-or-less normal. They have grown up with the internet, which opens minds, and social media, which, at its best, opens hearts.

And they are the politicians of the future. I hope they still have this track on their music playlists when it comes time to take the oath of office.

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Born free and equal

UN Secretary-General Ban K-Moon, to ”Leadership in the Fight against Homophobia” special event in New York yesterday:

Around the world, lesbian, gay, bisexual and transgender people are targeted, assaulted and sometimes killed. Children and teens are taunted by their peers, beaten and bullied, pushed out of school, disowned by their own families, forced into marriage … and, in the worst cases, driven to suicide.

LGBT people suffer discrimination because of their sexual orientation and gender identity at work, at clinics and hospitals, and in schools – the very places that should protect them.

More than 76 countries still criminalize homosexuality.

I am pained by this injustice. I am here to again denounce violence and demand action for true equality.

Let me say this loud and clear: lesbian, gay, bisexual and transgender people are entitled to the same rights as everyone else. They, too, are born free and equal. I stand shoulder-to-shoulder with them in their struggle for human rights.

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AP nixes ‘homophobia’

No to Homophobia merchandise, credit ABC News http://www.abc.net.au/news/2012-09-21/anti-homophobia-ads-to-air-at-afl-preliminary-finals/4273222

The Associated Press has dropped the word “homophobia” from its style book (used by journalists in the US and internationally), arguing that a phobia is a state of mind and possibly a mental disorder, and that it’s not appropriate for reporters to ascribe a mental disorder to people who make anti-gay statements.

I have to say I agree with the sentiment – homophobia is a poor-fitting word for anti-gay statements and actions, although it might well describe the motivation behind them. It’s also lexicographically contradictory – homo and phobia are from Greek words meaning “the same” and “fear of” respectively, so logically homophobia should mean “fear of (people who are) the same (as me)” – the opposite of homophobia as we understand it.

Words have tremendous social and political power so it’s important we have useful, well-understood terms to describe actions we are trying to call out. Everyone knows what “sexism” and “racism” are (although there’s been some discussion about the meaning of misogyny lately).

This is a long-winded way for me to get to a question: if “homophobia” is off the menu, what alternatives are there?

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Marriage equality: how they voted

The table below (over the fold) shows how the marriage equality vote went down in the House of Representatives today. I might have something more to say about this in due course, but I’ll just post the roll-call for now.

(Based on the draft Hansard and there may be errors. Let me know if you spot anything wrong and I’ll fix it up.)
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Why state-based marriage laws might not be such a great idea

Later today, the Tasmanian parliament will debate an ALP-Greens bill to legalise same-sex marriage in the state. While the idea of state-based marriage laws for same-sex couples has been around for a while, Tasmania is the first state to get as far as debating such a law. South Australia and the ACT have indicated they are considering going down the same path.

As laudable as any effort to move the marriage equality agenda forward is, the Tasmania approach throws up a number of questions and, in the wrong set of circumstances, could ultimately frustrate efforts to enact true marriage equality at the federal level. The issues involved are complex, and I am not a lawyer, but I’ll try to make the best sense of them, in the briefest possible time, as I can.

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The Grim Reaper died in the ’80s

The Bouverie Centre’s Jennifer Power on the Queensland government’s HIV prevention efforts:

The government argues that de-funding QAHC was a response to rising HIV rates — evidence of QAHC’s lack of effectiveness — not an anti-gay agenda. But it would be a concern if HIV prevention in Queensland was to become more conservative, with little acknowledgement of the needs or interests of gay men.

Australia is known as a world leader in HIV prevention largely because the federal government at the time had the foresight to see that community-led organisations such as QAHC were best placed to deliver targeted HIV prevention campaigns to the communities most at risk.

The Grim Reaper died in the 80s – time for a new approach to HIV prevention

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