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.

A few random early observations on the High Court judgment:

1. Same-sex marriage is marriage

One implication of the decision is that the Court found that the definition of ‘marriage’ in section 51(xxi) of the Constitution includes same-sex marriage, not just the kinds of marriages that were known in 1901. An important implication of this is that it settles the question of whether the Commonwealth has the power to pass a same-sex marriage law. Remember that unlike the States, the Commonwealth’s powers are limited to those enumerated in the Constitution; some scholars have argued that, depending on how the High Court reads the word ‘marriage’ in s 51(xxi), the Commonwealth might not even have the power to extend the definition of marriage. It does:

[38] When used in s 51(xxi), “marriage” is a term which includes a marriage between persons of the same sex.

2. Marriage can evolve in whatever way the Parliament decides

The Court found that marriage is an evolving social institution which has changed over time, both before and the Constitution and the Marriage Act were written:

[16] The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable. Section 51(xxi) is not to be construed as conferring legislative power on the federal Parliament with respect only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation.

3. Polygamous marriage is constitutionally possible

The Court outlined a definition of the word ‘marriage’, as it is used in s 51(xxi) of the Constitution, that notably avoided the restriction of the word to a union between ‘two persons’:

[33] … Rather, “marriage” is to be understood in s 51(xxi) of the Constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.

Update, 3:20 pm: Crispin Hull, writing in the Fairfax press, takes a similar view:

In a way the result is a good one for marriage equality. Having same-sex marriages under state and territory law and other marriages under federal was never going to be satisfactory. Thursday’s decision paves the way eventually for a national law.

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.

This may come as a surprise, but if you’ve been banging your head against a brick wall for six* years and your head hurts, it’s almost certainly not because you haven’t been doing it hard enough. If you pick Shorten as the next Labor leader (or Albanese, or Bowen, or Swan, or Burke…) you might as well hang out a sign saying “we are useless and we will never change.”

You’ve had a bit of a loss. As unpleasant as that might me, it’s also a rare opportunity to try something new, see how it goes. Pick a leader who represents generational change, give them the authority to reform the party, and craft a new story about who you are and what you stand for. Shorten is up to his neck in the leadership dramas of the last few years, and no-one will take you seriously with him at the helm.

There’s plenty of alternatives. Plibersek would be brilliant, then there’s Dreyfus, Butler and Clare, although the last two don’t have Cabinet experience. Any of them would come to the leadership with (relatively) clean hands.

Get your shit together, Labor. Your primary vote is so low now it consists almost entirely of people who are so rusted-on they wouldn’t vote for another party if their lives depended on it. Stop bashing the Greens and focus on your real enemy. Find a leader who will reconnect with the base, emphasise your considerable strengths, and break away from the back-room squabbles of the past.

In other words, not fucking Shorten.

* actually, 17 years

They seem so bright, youthful and groovy, with progressive policies like legalising same-sex marriage and marijuana, so it’s no wonder lots of people, especially gay men and lesbians, have decided to give the Australian Sex Party their vote this year. But if you’re one of those who did, you might be a bit surprised to know where your vote ended up.

In three states, above-the-line votes from the Sex Party were instrumental in getting candidates from right-wing microparties elected: the Australian Motoring Enthusiast Party in Victoria, the Liberal Democratic Party in NSW, and the Australian Sports Party in WA were the ultimate recipients of the Sex Party’s votes in those states.

Elsewhere, votes for the Sex Party ultimately ended up with the Liberal Party (in Tasmania), the ALP (in NT), Nick Xenophon (in SA) and the Greens (in SA, Queensland and the ACT). Sex Party votes did help reelect SA Greens Senator Sarah Hanson Young.

Many of the people I have met who supported the Sex Party would consider themselves vaguely left-wing, progressive voters. Most of those would be surprised to discover where their Senate vote ended up.

The full details of how Sex Party Senate votes were distributed in each state are below (these numbers are progressive, as the count is still proceeding, and only include above-the-line votes).

I doubt many of those who voted for the Sex Party would be happy to know their vote ended up electing a gun nut (in NSW), a car nut (in Vic) or sports nut (nobody seems to know what the Australian Sports Party’s policies are, except they seem to like sport) in WA. The fact that they did shows the urgent need for reform of the above-the-line voting system in the Senate.

(States are listed below in order of the size of the Sex Party vote)

Victoria

There were 43,744 votes for the Sex Party in Victoria. Every one of those votes went to their 42nd preference, the Australian Motoring Enthusiast Party, enough to get Ricky Muir elected to the Senate for the next six years.

NSW

There were 32,599 votes for the Sex Party in NSW. All but 118 of those votes went to their 18th preference, the gun-toting Liberal Democrats, pushing David Leyonhjelm over the line and into the upper house until at least mid-2020. The remaining 188 votes went to the Shooters and Fishers Party, via preference 48.

Queensland

There were 20,592 votes for the Sex Party in the Sunshine State. These were distributed first to the HEMP Party via preference 5, and then to the Greens via preference 42.

Western Australia

There were 12,376 votes for the Sex Party in WA. Of those 12,338 went to their 11th preference, the Australian Sports Party, pushing Wayne Dropulich across the line and onto the comfy red leather benches for the next six years. The remaining 38 votes went to the Greens.

South Australia

There were 7610 votes for the Sex Party in SA. These were initially distributed to the No Carbon Tax Climate Sceptics (preference 11), then to the Greens (preference 41), where they helped reelect Sarah Hanson-Young, before coming to rest with Nick Xenophon (preference 45).

ACT

There were 5966 votes for the Sex Party in the traditionally porno-loving national capital. These were distributed first to the Bullet Train For Australia Party (preference 9) and then to Simon Sheikh of the Greens (preference 15).

Tasmania

There were 4112 votes for the Sex Party. These went to the Liberal Democratic Party (preference 21) and then on to the Liberal Party (preference 34).

NT

There were 1410 votes for the Sex Party in the Territory. These went briefly to the Shooters and Fishers (preference 3) before helping elect Nova Peris for the ALP (preference 12).

Source: ABC elections website, accessed 9 September 2013.

Image: Fiona Patten (CC-licensed image from Wikimedia Commons)

What’s important is what happens next.

Abbott seems like almost the worst imaginable person to be given the leadership of the country, and I dislike the Liberal Party on a visceral, or perhaps molecular level, but the most unsettling part is that Australia is about to elect a government that has kept its plans for after the election secret. There is very little in the way of policy details beyond three-word slogans, and until today we have not been told how the promises they have made will be paid for. Even tonight we only have a costing document that provides a line item for each spending/saving measure but no information about the underlying assumptions.

It’s an appalling indictment on the Australian electorate that people are prepared to vote, sight-unseen, for what will likely be a massive swing to the right in almost every area of public policy. It’s an even worse indictment on the Australian Labor Party, which has squandered its own political capital and led many Australians to regard it as a hopelessly dysfunctional, visionless and talentless rabble, not through poor government over the last six years (far from it – the ALP has driven some key policy reforms) but through internecine squabbles and almost comically poor communication skills.

The Australian electorate hates the Labor Party so much they are prepared to have Tony Abbott – a man that most people think is a sort of intellectually dim, semi-deranged religious zealot – as their PM. Most people, when asked, think Abbott will be a terrible PM. And yet they are prepared to elect him purely out of spite directed at the ALP.

They say oppositions don’t win elections; governments lose them. Well, indeed: this particular opposition leader has not had to do anything more complex than remain vertical and robotically repeat ‘stoptheboatsendthetaxbuildtheroadsofthetwentyfirstcentury’ and he’s headed for a landslide victory.

So Abbott’s going to win. What happens next depends on a few factors. First, the scale of his majority and, particularly, the numbers in the Senate.

If there’s a big swing, Abbott could be looking at a 30- or 40-seat buffer in the House of Reps. That will take three or four terms of government for the ALP to whittle away, if it can at all: Coalition governments all the way through to the mid-2020s. It’s turtles all the way down. In the Senate, things are looking a wee bit brighter – with a bit of luck, the Greens vote will hold up, the byzantine preference deals won’t elect too many right-wing crazies, and the Coalition won’t have a workable majority in the upper house.

The Greens have said they will vote against almost every part of the Coalition’s platform: they will continue to stand up for asylum seekers, welfare recipients and wage earners, and against big business and the top end of town. In other words, they will act on well-articulated principles, not based on political expediency. Maybe it’s time for the ALP to join them?

Perhaps this defeat will be the catalyst that forces the ALP to reexamine its place in the Australian political landscape, and relocate its ideological soul. A party of the left, standing up for ordinary people, protecting and extending Medicare, social security, progressive social policies – you know, the old ALP. And maybe they could discover that the Greens, who have become successful by attracting the votes of disaffected leftist voters, aren’t the real enemy: the tories are.

Together, Labor and the Greens could yet provide an effective brake on at least some of the craziest plans Abbott, Hockey and Robb have in their secret dossier, and in the process they might just rediscover what it is they stand for.

How crazy might those plans be? We’ll know in the weeks and months to come I suppose, but just today the Coalition has suddenly discovered an appetite for a mandatory internet filter, and one of their chief boosters thinks rich people should be allowed to buy their way out of jail.

So that’s freedom of speech and the rule of law gone, and they haven’t even won the election yet.

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.

Marriage equality was in the news. The French president signed their newly reformed law, angering one right-wing idiot so much he shot himself in front of the altar in Notre Dame Cathedral. Meanwhile, a political stoush unfolded in the UK with right-wing Tories and UKIP cranks trying to derail David Cameron‘s marriage reform efforts. Talk of ‘swivel-eyed loons’, ‘lesbian queens’ and ‘aggressive homosexuals’ peppered my Twitter stream. Rhodri Marsden had the best comment:

Norman Tebbit: “But what if a horse married a cupboard and then a baby happened? What if a Viscount bummed an apple strudel? What then?”

— Rhodri Marsden (@rhodri) May 21, 2013

Here in Australia, Kevin Rudd issued a press release announcing he had written a blog post announcing he had changed his position on the issue of same-sex marriage, and was now all for it. The country rejoiced, because every time Kevin Rudd gets his name in the papers it’s good for the national conversation and no-one thought he was being the least bit political. The ACL responded, predictably, by declaring that same-sex marriage would lead to ‘another stolen generation’. Skipping forward several steps, this led to Helen Razer accusing Adam Bandt of Manichaeism.

The Eurovision Song Contest was won by Denmark, represented by a barefoot hippie and a Christian Slater lookalike in a military uniform. My favourite contestant, Romania’s vampiric über-camp countertenor Cezar, dressed in an enormous black Jean Paul Gaultier frock, finished a creditable 14th, while Bonnie Tyler, representing the UK, somehow got 23 votes. Despite featuring some memorable eye candy, Ireland came last – a fact that every British media outlet felt compelled to include in their reports.

I was at the MCG on Friday night to see the opening game of the Indigenous Round, in which my Sydney Swans beat Collingwood by 47 points. A great performance by the team, but the game will principally be remembered for an ugly incident in which Adam Goodes was subjected to racist abuse by a 13 year old female Collingwood fan. Goodes’ compassionate, caring press conference on Saturday morning was inspiring. Some of the responses on Twitter weren’t.

Nushawn Williams, incarcerated for 16 years for sexual offences including infecting several women with HIV, claimed in court that he is HIV-negative. Tony Abbott let slip that he is already drafting his victory speech. A British soldier was horrifically murdered by a pair of religious zealots, leading to ugly reprisals by right-wingers. Ríos Montt‘s genocide conviction was overturned. Hazel Hawke died, and The Age had her obituary online within four minutes – a pity they forgot to fill the details in first. I went on a mushroom-foraging tour: didn’t find any edible shrooms but met some nice lesbians. The Doctor Who season finalé had a massive reveal leading countless idiots to believe the Doctor’s real name is ‘John Hurt’. Brent is still overseas but he’ll be back on Monday. I start hep C treatment next week. I saw a Tawny Frogmouth. Life’s good.

Post coming soon.

Tony Abbott is having a “mini election campaign” this week, showing us that he has a positive message and a policy platform. We’re told it’s an attempt to get away from his image as “Dr No” and a walking policy vacuum. Well, so far, not so good.

Before we get to Tony, though, let’s have a brief check-in with opposition Indigenous Affairs spokesman and noted social media expert/walking disaster Andrew Laming.

Fresh from his appallingly racist tweet two weeks ago, he had this to say today:

Tony Abbott at a Brisbane SES depot today. Where’s the PM?

— Andrew Laming (@AndrewLamingMP) January 28, 2013

The PM, as it turns out, was in Gippsland meeting with people who had lost their homes to bushfire, while Abbott was pretending to fill sandbags for the TV cameras. Nice one, Andy.

Meanwhile, it’s only day two for the new “positive” Tony and he’s reverted to his old ways already – claiming, with no basis whatsoever – that the government had plans to bring in a flood levy to pay the still-undetermined costs of the current flood crisis in Queensland.

So much for a positive new message: Abbott has reverted to type and is running the same type of scare campaign he ran against the carbon tax. The same carbon tax that is designed to help Australia do its part to combat the climate change that is leading to more frequent and more severe floods like these.

Now, maybe the government will need to bring in a levy to help Queensland and northern NSW, once the floodwaters have subsided, and maybe it won’t. Disaster recovery is jointly funded by the federal and state governments under the Natural Disaster Relief and Recovery Arrangements which make the Commonwealth liable for up to 75% of the cost of disaster recovery. If the Commonwealth needs to raise money to cover those costs, it has little choice but to do that via taxation. Is Abbott suggesting the government should renege on the NDRRA and just cut Queensland off?

Laming was quick to pick up Tony’s lead and is running this hilariously ham-fisted push-poll on his Facebook page:

It’s a tough choice: if you want people in Queensland to have their roads and bridges rebuilt, you’re against “responsible government,” because responsible governments presumably don’t rebuilt washed-out bridges and roads. Do the voters in Laming’s Queensland electorate know he is against flood relief? Or maybe the question is just about whether we should have a “Labor” flood levy or a kindler, gentler coalition one?

After two years of fear-mongering and scare campaigning, in which he has gone ever backward, in the polls, this week Tony Abbott set out to remake himself as Mister Positive Alternative Prime Minister. But the new, positive Tony Abbott is just a rehashed version of the old, negative one.

I imagine there his media managers are scratching their heads tonight, wondering how it all went so quickly off the rails. Who would have liked him to stay on script and tell us what great things the coalition is planning for us, instead of just pulling another ‘Labor tax’ scare campaign out of his arse.

But that’s the thing about Tony. He just can’t help himself.

Elsewhere: Tony Wright has a similar view of Laming’s day.

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.