Marriage Equity – Why is Australia waiting?

I know that I am going to probably get some hate mail for this but to me honest that doesn’t bother me. I feel strongly about this subject and with the change in political power in Australia over the last few days … IMHO if it doesn’t happen now who knows if it will in our life time.

Before I start … I am not a solicitor or practitioner of any type of law. This is not meant to provide any legal advise but just some personal views on the topic.

So what I am taking about? I am taking about making changing the Marriage Act 1961 (and any other relevant legislation) to change the definition of marriage to recognize and include within the definition unions of same-sex couples.

Ok so where are we now … ?

The Federal Government’s (otherwise known in legal circles as the Commonwealth) power with respect to legislating on marriage & family concerns comes from s. 51(xxi)  of the Constitution. Section 51 states: The Parliament shall … have power to make laws for the peace, order, and good government of the Commonwealth with respect to: marriage. The constitution does not define marriage but limits the Federal Governments powers to ‘marriage’. This is the reason why when they are talking about changes to marriage it relates to Federal legislation and civil unions it relates to State Governments.

So ok … if there are changes to marriage it must be done Federally. So what is the current definition and where does it come form?

The current definition of marriage comes from the Marriage Act 1961 (and also Family Law Act 1975 (Cwlth) (s. 43(a))). Within the definitions section, marriage is defined as “means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. What I find interesting is where this comes from. The pollies were not original when they through up that definition. The definition was taken from from an 1866 English divorce case (Hyde v. Hyde and Woodmansee [L.R.] 1 P. & D. 130). What is funny is that the case was a divorce involving a polygamous marriage .. worth the read. But I digress.

So our current definition of marriage is almost 150 years old. Alot has changed both in family law and in the world since 1866 … maybe it is time it also got updated. Here are a couple examples of other changes to the notion of marriage since 1866.

• Civil Marriages – one of the key components of Hyde v Hyde was the notion of a ‘Christian marriage’. Civil marriages have been legal for a long time (I have not been able to find a date but I would assume that it would be at least from 1961 with the Marriage Act).
• Divorce – Divorce, legally in Australia is actually older than the 1866 definition of marriage (that makes as it was a divorce case). When the divorce and Matrimonial Act of 1857 was passed in England, it was passed on to the British colonies to have similar legislation. Divorce laws were introduced in South Australia and Tasmania in 1860. It was introduced in Victoria in the year 1861, WA 1863, Queensland 1864 and NSW 1873. Uniformity and updating of the divorce laws occurred in 1959 and then again in 1975. Compared to 1866 when the only reason for divorce (that had to be proved) was adultery … today we have a no fault divorce system that requires only separation for 12 months.

We could go on and on about changes in marriage, divorce, women’s rights to property, protection from spousal rape and abuse, parental rights to their children and spousal support. I think it is enough to say … we are worlds apart in regards to the notion of a marriage being a christian contract that is almost unbreakable contract for life.

So IMHO the legal notion of marriage has been taking a serious knocking about since it was originally devised. I think before it’s 150th Birthday it needs some more revision

So why am I so interested?

I think it would be easy to work out from my bio and previous posts … I am not gay. And as Jerry Seinfeld said “Not that there is anything wrong with that”. However I do have friends that are members of the gay and lesbian community and while I would like for them to be able to share in a marriage ceremony … the reason for it is not wholly because of them either … my reasons (or one at least) are alittle strange (not that is unusual for me). My reasons are 2 fold …

1. I think Marriage Equality is a Human Rights Issue

Article 16, Universal Declaration of Human Rights (UDHR):

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

For more than a decade, this non-discrimination principle has been interpreted by UN treaty bodies and numerous inter-governmental human rights bodies as prohibiting discrimination based on gender or sexual orientation.I believe that denying marriage equality we are denying people a basic human right.

2. From a Family History perspective by not recognizing Marriage is like saying that it doesn’t exist – OK I know this is the weird one but follow me on this. I have been reading and researching my families history. Part of the starting blocks before I get to more detail is to look for Births, Deaths and Marriage Certificates/Records. They are the starting point to get an understanding of who they were, where they lived and sometimes what their occupations were. This history is denied to people of same-sec couples. Maybe I had a same sex-couple in my families past … but that will never be known as their is no record .. it is as if their relationship didn’t exist. As a historian (and now family historian) I find this really sad.

In conclusion …

To those that oppose gay marriage … You might not want your son or daughter to be gay. You might not like the idea of attending a gay wedding. You might feel uncomfortable watching same-sex couples holding hands in the street. But it’s not about you or me, it’s about fairness and treating everyone equally and with dignity and respect. Marriage is a basic human right that should not be closed to 10 per cent of the population on the basis of sexuality.

What do you think?