Cut Marriage From Same-Sex Marriage Act To Win Marriage

barrAndrew Barr is Deputy Chief Minister of the Australian Capital Territory Legislative Assembly and the first openly gay Member of the Assembly (MLA) and the first openly gay Cabinet member anywhere in Australia.

He’s been butting heads with Australian Marriage Equality campaigners over the wording of the Territory’s same-sex marriage act, ahead of the High Court hearings into the constitutionality of the legislation.

The Commonwealth wants the law struck down, claiming to ‘cover the field’ in respect of marriage in Australia. The Territory asserts that the Howard government amendments to the Marriage Act means the Commonwealth has vacated the field in respect of same-sex marriages.

As I have argued elsewhere, in order for state and territory based marriage bills to succeed, they must get the High Court to agree that same-sex marriages are not the same, and not equal to, traditional heterosexual marriages. This is not a conclusion one would wish to see enshrined in law, if the desired outcome is equality.

Yet this is precisely the outcome for which marriage equality campaigners are now striving. They have criticised the ACT government for not making what they call ‘minor amendments’ to their legislation in order to minimise the chance of the High Court striking it down.

In response to their pressure, writing on Facebook, Barr replied:

The proposed amendments removed the following list of words or phrases from the ACT legislation:

• equality
• equality by allowing for marriage between 2 adults of the same-sex
• marriages between 2 adults of the same-sex that are not marriages within the meaning of the Marriage Act 1961 (Cwlth)
• person’s
• spouse
• marry
• to marry
• getting married
• married to each other

In my opinion, once you take these words and concepts out we are pretty much left with the existing ACT Civil Unions Bill except that “civil unions” are renamed “same-sex marriage”.

In other words, the proposed amendments did not “improve” legislation, they stripped it back and made it more conservative.

If the High Court rules that those words can’t be used in our legislation then we will amend it. Until that point everything else is conjecture.

In my view, even with those words IN the Act, we still don’t have marriage in any meaningful sense of the word. Marriage for LGBTI people only makes sense if it is exactly the same, with the same rights and responsibilities, as traditional heterosexual marriage.

The whole point of the battle for marriage is to assert that our marriages are of exactly the same value as everyone elses. Once you concede that we can make do with a different, separate, inferior version, even if only temporarily, we are indeed back to civil unions, even if we now tack on a label saying ‘marriages’. We are erecting barriers to equality, not stepping stones.

Andrew Barr is right: he just doesn’t follow his own logic through. If he did, he would have to concede that even attempting to put up this legislation in the first place is a waste of time and effort.

The Tasmanian Parliament has reached the same conclusion, and won’t be proceeding with state based same sex marriage. At the time of writing, New South Wales is getting ready to mount a bill of their own, but Premier Barry O’Farrell has pointed out the obvious -that whatever this is, it isn’t equality.

In response, the present leader of AME, Rodney Croome, and his predecessor, Alex Greenwich, have come out swinging, suggesting that the states have a ‘moral responsibility’ to provide equality, ignoring the fact that state-based laws simply cannot achieve this.

If the Commonwealth will not engage with us constructively on steps towards marriage equality voluntarily, then some means must be found to make them do so. Some campaigners thing state based marriage is the way to do this. Others, myself included, think chasing the chimera of state based marriage is a waste of time.

The biggest single issue which we have to tackle, and tackle urgently, is the high rate of mental illness in our community, brought on and sustained by the homophobic world in which most of us live.

Marriage equality has been shown to be an important tool in changing that, but it has to be the real deal. Settling for less will only make things worse.

Journalist Serkan Ozturk has pointed out, also on Facebook:

About half of all LGBTI marriages will also end in divorce. This means hell in the Supreme Court as state-based marriage doesn’t allow you access to the Family Court.

A NSW marriage (or any other state or territory) will also fail to extend any legal or financial entitlement/benefit that people who marry under Federal Act are eligible for. It will also not be valid in any state or territory that doesn’t itself have a state same-sex marriage law.

Further, state laws such as that drafted for NSW will complicate matters for Trans and Intersex people and force them into a charade until it is fixed at the federal level.

He says he would never consider a state based marriage, should they become available, and neither should we.

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About the author

Veteran gay writer and speaker, Doug was one of the founders of the UKs pioneering GLBTI newspaper Gay News (1972) , and of the second, Gay Week, and is a former Features Editor of Him International. He presented news and current affairs on JOY 94.9 FM Melbourne for more than ten years.

“Doug is revered, feared and reviled in equal quantities, at times dividing people with his journalistic wrath. Yet there is no doubt this grandpa-esque bear keeps everyone abreast of anything and everything LGBT across the globe.” (Daniel Witthaus, “Beyond Priscilla”, Clouds of Magellan, Melbourne, 2014)