No We’re Not Already Equal

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Ted Eytan: American Civil War Museum

In the wake of the death of the plebiscite, I’m hearing a lot of “you’re already equal”, mainly from “Christian” sources. I know we’re not, but in what specific ways?
 Here are some I can think of: if you have more, add yours in the comments below. I’ve used some American sources as well as local, so if I’ve got any of them wrong regarding Australia, please feel free to correct me, again, by leaving a comment below.

RELIGIOUS OPPOSITION TO EQUALITY: THERE’S MORE TO IT THAN YOU THINK

godberg

Significant inequalities:

  • You decide to be married; someone else decides if your relationship qualifies as de facto. Marriage places spouse as senior next-of-kin automatically.
  • You have to live together for two years to be considered a de facto couple. Marriage is immediately recognised.
  • Difficult in an emergency to prove your de facto relationship. Your rights can be challenged/ overridden by blood relations: again, marriage places spouse as senior next-of-kin automatically.
  • If you’re married you have instant recognition if one partner dies intestate (without a will). De facto rights can be overridden by ‘blood relatives’.
  • There is significant potential for same-sex spouses to be disenfranchised if their partner has children from another relationship and dies intestate, if they have not cohabited more than two years.
If you have additional information/experience on the above or any of the following I’d love to hear it:
  • adoption rights
  • stigma associated with the ‘other thing’ that isn’t marriage
  • right to make medical decisions on behalf of partner
  • interstate/national recognition of union
  • international recognition of union
  • right to list partner on death certificate
Please feel free to expand on any that I have listed or add some more in the Comments below.

LONGER VERSION

From the Australian Marriage Equality website

Married partners have immediate access to all relationship entitlements, protections and responsibilities.

This contrasts to de facto couples who must live together for a certain period before they are deemed to have legal rights.

A marriage certificate also allows married partners to easily prove their legal rights if challenged, for example in emergency situations. The capacity to quickly and easily prove one’s relationship status is particularly important for same-sex partners because prejudice against same-sex relationships can mean legal rights are denied.

Another practical benefit of marriage is that it is a widely recognised legal relationship. The criteria for establishing de facto status, and the rights ascribed to de facto partners, are different between the Australian states and between Australia and other nations.

To address the practical legal problems faced by unmarried same-sex partners, some people advocate civil unions.

“Civil union” is a generic term that includes a registered partnership, a civil partnership, and all other formally-recognised personal union. However, civil unions do not offer the same legal benefits as marriage, even when the law says they should. This is because they are not as widely understood or respected. Several recent reports into the operation of civil schemes in Europe and North America confirm that civil unions are not always recognised by hospitals, schools, insurers and even government officials.

Lack of recognition is also a problem when civil union partners travel inter-state or internationally. But even if a solution can be found to these practical problems, legal unions other than marriage do not give same-sex couples the same social and cultural recognition that comes with marriage. In the words of American marriage equality advocate, Beth Robinson, “nobody writes songs about civil unions”.

Worse, according to the reports mentioned above civil unions may actually encourage discrimination against same-sex partners and downgrade the status of their relationships by entrenching a second-class status .

Civil rights historians like Barbara Cox have drawn the parallel between civil unions and former “Jim Crow laws” in the American south.

“…restricting same-sex couples to civil unions is reminiscent of the racism that relegated African-Americans to separate railroad cars and separate schools. Our society’s experiences with ‘separate and equal’ have shown that separation can never result in equality because the separation is based on a belief that a distance needs to be maintained between those in the privileged position and those placed in the inferior position.”

Civil unions have not only not fulfilled their promise of equal rights and respect for same-sex couples, they appear to have made matters worse. Instead of eliminating discrimination they have entrenched it. Instead of removing stigma they have inflamed it. Instead of being a step towards full equality they are a step away.

This is probably why same-sex couples consistently show they prefer marriage to other forms of legal recognition. In US states where both marriage and civil unions are available to same-sex couples the result is always a higher take-up rate for marriage.[xi]

This is consistent with Australian research which shows that only 25.6% of same-sex de facto partners would chose to be in a civil union, and only 17.7% would remain as de factos. Of those currently in a state same-sex civil union 78.3% would prefer to be married under Australian law.

Alternatives to marriage are important for providing legal security and/or formal recognition for those partners who do not wish to marry. In Australia we are lucky to have strong legal protections for cohabiting de facto couples and some of the best state civil union schemes in the world. But there is one piece missing from the jigsaw of legal options available to Australian couples. That piece is marriage for same-sex partners.

References:
[xi] “Marriage, registration and dissolution by same-sex couples in the U.S.”, The Williams Institute, July 2008, http://williamsinstitute.law.ucla.edu/research/marriage-and-couples-rights/marriage-registration-and-dissolution-by-same-sex-couples-in-the-u-s/

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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)