Tagged with marriage equality

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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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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PFLAG ad for marriage equality

Why is Tony Abbott so scared of a conscience vote? As Amanda Vanstone writes in the Sydney Morning Herald today, his decision to announce there would be no conscience vote, after the parliament had wound up for 2011, goes against his stated position:

He has told Australians that if elected he would not let his personal views dictate policy; nor would he take instructions from Rome. He said these things because he is conscious of the apprehension among women and liberals that he would take Australia to a more conservative position than we now have on issues such as abortion and gay rights. So, the last thing he needs is to act in any way that causes women and liberals to doubt his word. Announcing that he did not want a conscience vote when his party members had dispersed is difficult to explain away. It looks deliberate. Even tricky.

Meanwhile, the extraordinary Shelley Argent and her comrades at Queensland PFLAG have produced the following TV ad, which will reportedly air from tonight.

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Am I, or aren’t I?

our wedding
Above: An event the Canadian government now says never took place.

I woke up this morning to a text message from my husband suggesting I look at the news on same-sex marriage coming out of Canada. “They are a bit concerning,” he said.

Turns out he might not be my husband after all.

Lawyers representing the Canadian Department of Justice are arguing in a Court case that non-residents who married in Canada since 2004 are not legally married if they could not have been married in their country of residence.

Brent and I were married in British Columbia on 25 September 2004.

The case arises out of a peculiarity that those of us who were married in Canada have been aware of for some time: it’s easy enough to go to Canada and get married, but not so easy, when and if the time comes, to get divorced.

Canada’s divorce law carries a one-year residency requirement: to get divorced in Canada, one or both of the parties must have resided for at least 12 months in the province where the divorce is being sought. If you live outside Canada, you are supposed to get divorced in your home country. But that’s of little use if your home country doesn’t recognise your Canadian marriage. Australia, for example.

The case before the Court concerns an unidentified lesbian couple who married in Canada in 2005 and separated in 2009. One of the two lives in Florida, the other in the UK, both places where same-sex marriage is not explicitly recognised. They are seeking a divorce from the Canadian courts (the news reports don’t mention which court the matter is before) and the Canadian government is the respondent in the case.

A submission from the Department of Justice apparently argues that “in order for a marriage to be legally valid under Canadian law, the parties to the marriage must satisfy both the requirements of the place where the marriage is celebrated … and the requirements of the law of domicile of the couple with regard to their legal capacity to marry one another.”

In other words, if you can’t get married in your home country, you can’t get married in Canada either.

The couple are also seeking $30,000 in compensation from the provincial government, for negligent misrepresentation, in the case that their marriage is found to be invalid, which suggests that the government’s response didn’t entirely come out of the blue for their lawyer, like it did for the rest of us. They are reportedly represented by Martha McCarthy, a Canadian barrister who fought the Supreme Court case that legalised same-sex marriage across Canada in 2005.

McCarthy told the Globe and Mail:

It is offensive to their dignity and human rights to suggest they weren’t married or that they have something that is a nullity. It is appalling and outrageous that two levels of government would be taking this position without ever having raised it before, telling anybody it was an issue or doing anything pro-active about it,” she said. “All the while, they were handing out licences to perform marriages across the country to non-resident people.

The response to the news has been one of shock. US sex advice columnist Dan Savage was married in Vancouver in 2005. He has written an extensive blog post on the developments, and is quoted in the Globe and Mail as saying, “When I got out of bed, I was a married man and as soon as I got on my Twitter feed I realized I had been divorced overnight.”

It’s an odd position for the Canadian government to take. The conservatives are currently in power in Canada, but they have said – and Prime Minister Stephen Harper has reiterated today – that they have no plans to revisit the issue. I share Savage’s hopes that “Hopefully this is just one rogue lawyer or two and not policy of Canada’s Conservative government. If it is Canada’s Conservative government then the issue has definitely been re-opened.”

UPDATE, just before posting: Dan Savage has tweeted that the decision appears to have been reversed. No details yet but I’ll add them as they come in.

UPDATE, 06:30 on 14 January: The Canadian Justice Minister has said all same-sex marriages performed in Canada are legally recognised and the government is working to ensure foreign couples married in Canada have access to divorce.

Edited, 08:54 (added quote from Martha McCarthy)

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Equal love


Today marks the sixth anniversary of the passage of the Marriage Amendment Bill 2004, the legislation that enshrined in Australian law the definition of marriage as being between “one man and one woman.” Australia’s DOMA.

The anniversary will be marked by rallies in all the capital cities and a number of regional centres (details), and it’s heartening to see support for equal marriage rights growing in Australia day by day.

Six years ago, when the Howard government introduced, and the Latham opposition immediately supported, this legislation, Brent and I were planning our own wedding, which took place in Canada later that year. I wrote a cranky blog post and very cranky letter to the editor at the time.

Brent and I were the first gay couple we knew to tie the knot. In those days, gay marriage was legal in The Netherlands, Belgium, and a handful of Canadian Provinces. Since then Argentina, the rest of Canada, Iceland, Mexico, Norway, Portugal, South Africa, Spain, Sweden and five US States have all legalised same-sex marriage. Finland, Slovenia, Luxembourg and Nepal are all committed to legalisation in the near future, and the subject is being energetically debated in many other countries. Same-sex marriage is a global phenomenon, and an unstoppable force.

I’ve been impressed by the degree to which this has become a political issue during the current election campaign. Julia Gillard has been asked repeatedly to explain her party’s position on same-sex marriage, and she has squibbed it every time. The ALP’s position on same-sex marriage (they’re against it, but for state-based “relationship registries”, as long as there’s no ceremony and no-one uses the ‘m’ word) is unsustainable within a party that claims to be progressive, and the party should adopt a more open-minded position. Unfortunately the ALP is scared witless of the political muscle of the Catholic Church and a few other religious minorities. That’s a disgraceful position for a party that claims to be socially progressive, and it partly explains the haemorrhaging of support to the Greens.

Julia Gillard could articulate a more open position on this issue, without unduly scaring the horses. She could acknowledge that it is an issue, for a start, instead of robotically chanting that ‘one man, one woman’ shibboleth. She could affirm that there will be no change in the short term, but espouse a personal belief that change will come when the nation – and the party – is ready. She could suggest we have a national debate on the issue over the coming term, and to develop a legislative response based on that. She could end the hateful and mean-spirited policy that prevents the issuing of ‘certificates of non-impediment to marry’ for same-sex couples intending marriage overseas. Or she could grow a pair and just say what we all know she, and Penny Wong, and probably most of the ALP party room, believes.

In the meantime the voices for same-sex marriage grow stronger and the arguments against it become ever more ineffective. We will win this – we have justice on our side; and a day will come when my Canadian marriage certificate will be recognised in my own country. In the meantime, my love and admiration goes out to all the hard-working queers who are keeping this issue on the agenda, organising the rallies, writing the petitions, fighting the good fight for equality and human rights.

See you at the rally.

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