In an interview with The World Today, constitutional expert George Williams hits the nail on the head:
It all comes down to one word and that is marriage. There is no doubt, I think, that the States and Territories can legislate and Tasmania’s already done this as well, for a form of union between two people of the same sex that is not called marriage.
It’s an interesting argument. Williams says that, as long as they avoid the ‘M’ word, the states and territories can construct a wholly separate, parallel form of civil union which would confer similar or identical rights (under state law) to those conferred by ‘capital-M’ marriage.
Of course, that’s only half the argument — and indeed, it’s the lesser half. Most (all?) states and territories already recognise same-sex relationships to a greater or lesser degree. The most glaring discriminatory statutes which remain are all federal, and there’s no way, constitutionally or politically, the feds are going to make themselves subject to state laws.
Still, if the states do press on with civil unions, it creates a legal anomaly and inconsistency that, presumably, one day a more enlightened federal government would seek to correct.
As I mentioned in an earlier post, the federal government has said their concern is that the ACT proposal would enable marriage celebrants — who are licensed by the federal Attorney-General’s Department — to perform civil unions. Jon Stanhope has said today that he will establish a separate licensing process for civil celebrants, although it’s not clear whether the same person will be able to fulfill both roles:
Mr Howard said marriage celebrants, who are licensed by the Commonwealth, would not be allowed to perform civil union ceremonies. [The Age]
So much of the public discourse on this issue strikes me as rich with double meaning and faint hate. It will in time be a striking historical record of the degree of doublethink and thinly-veiled distrust that has so far characterised much of the debate.
Take this excerpt, also from The Age:
Mr Howard said the proposal was “marriage by another name” and he would not allow it.
“We will always seek to remove areas of discrimination against homosexuals but there is a special place in Australian society for the institution of marriage as historically understood and we do not intend to allow that to be in any way undermined,” he said.
It’s an incredibly thin argument, isn’t it? Howard says he’s against discrimination (of course, his government’s record is another thing altogether), but he insists he’s trying to preserve “the institution of marriage†— not by preventing queers from entering relationships which, apart from their same-sex character, are identical to marriage on first principles, nor (at least in theory) from being treated equally before the law, but simply by refusing them access to the ‘M’ word, as if it carries some magical power.
If marriage is just a word, then why is it so important to ‘protect’ it?
And if Howard really thinks the word is so important, why doesn’t he take the lead and create a separate structure of civil unions for gay men and lesbians (and others who are disinclined towards marriage, as the ACT has proposed)? He can have his shibboleth if it makes him happy — I just want equal rights.
