1) MARRIAGE
Arguments for same-sex marriageMany same-sex couples have a deep desire to marry, for all the same reasons that heterosexual couples marry. They should have that choice. Same-sex marriage is also supported by many same-sex couples who personally don't want to marry. Many people believe that:
- Everyone has the right to be treated equally under the law
- Marriage brings many benefits to couples and their children which should also be available to same-sex couples and their children
- The right to marry the partner of one's choice is a key marker of adulthood and citizenship, social participation, and belonging in family and community
- Denial of the right to marry stigmatises same-sex couples and their families as second-rate and dysfunctional
- Marriage has evolved and reformed over time to allow mixed-race couples to marry and should do so for same-sex couples
- Marriage should be reformed to keep pace with changing social attitudes or it will become increasingly irrelevant
- Marriage is not a religious rite, but a secular one in Australian law which religious institutions may confer through the Marriage Act 1961 (Cth)
- Marriage is a way for a couple, their families, friends and community to celebrate their love
- Marriage is a way for society to promote values such as mutual care, support and commitment in relationships
- Two people living together on a genuine domestic basis fit the functional definition of marriage for the purposes of the law
- Same-sex marriage is a useful political 'heat shield' for other less radical reforms such as civil unions and relationship registration
Some people within our own community oppose the idea of same-sex marriage. These arguments are against the entire institution of marriage, and/or the idea of LGBTI people participating in marriage:
- Marriage is heterosexual by definition, therefore it is not for LGBTI people
- Relationship equality and opposing homophobia and discrimination are worthy goals, but same-sex marriage is not necessary to achieve these ends
- Marriage is powerfully infused with tradition, history and religion, and carries strong religious connotations
- Even though marriage is a legal institution as a matter of law - a state power that is conferred on religious ministers through the Marriage Act 1961 (Cth) - this fact is routinely overlooked by the public and by legislators
- Marriage is a heterosexual institution designed to strengthen, affirm and perpetuate heterosexuality
- Marriage is a patriarchal institution. It has historically been used to oppress and enslave women, by making women the property of men
- Marriage has strong religious associations with organised religions (particularly Islam and Catholicism) which teach that same-sex relationships are intrinsically disordered, immoral, evil or of less value than heterosexual relationships
- Marriage is monogamous and therefore a restrictive and limited form of relationship which restricts other ways of loving and interacting with people
- Same-sex couples do not have children by 'natural' biological means, therefore marriage, by definition, excludes same-sex couples
- Same-sex marriage is against 'god's will'.
The power to make laws regarding marriage
The power to legislate regarding marriage is granted to the Federal Government under section 51 (xxi) of the Constitution. In the Marriage Amendment Act 2004 the Federal government amended the Marriage Act 1961 (Cth) to define marriage as limited to 'the union of a man and a woman.'
Technically the states could legislate regarding same-sex marriage on the basis that federal laws for heterosexual marriage could exist side by side with state laws for same-sex marriage (http://tas.greens.org.au/issues/focus_on/same-sex_marriage/). However there would need to be sufficient political momentum within the community before the states would consider such legislation. In the end, the Federal parliament has ultimate constitutional power to legislate regarding marriage and it is uncertain what the High court would decide in the event of an inconsistency.
It would appear that since many issues are governed federally, change in federal law will be necessary to recognise same-sex couples in areas such as tax, superannuation, health, welfare and foreign adoption.
2) CIVIL UNIONS
Civil unions have all the legal status and formal recognition of marriage but without the religious associations. Civil unions could be granted by the state of Victoria and would address all the symbolic and legal issues of marriage without the religious and symbolic aspects. Provision can be made for a ceremony at the time that the civil union is recognised.In most places that allow civil unions, the law states as a general principle that parties to a civil union will have all the same benefits, protections and responsibilities under law as a husband and wife in a marriage.
Many civil union models incorporate the same features as a registered partnership model. For example, the parties must have reached the age of majority, have citizenship of that country, and cannot be related by blood. The process of registration and dissolution of the civil union also occurs in a similar way to the registration model.
Under Victorian law, a civil union scheme could give same-sex couples the same rights as heterosexual married couples to the extent that Victorian law allows.
Differences between civil unions and relationship registration
The main difference between civil unions and relationship registry are that civil unions permit a greater level of formal ceremonial and symbolic recognition. This creates a greater social profile for same-sex couples than those that are simply registered.
For example, under the New Zealand laws, the person who officiates when a union is formed is called a 'celebrant', rather than a 'registrar'. Under the Vermont law, there is a broad statement of principle which states that partners to a civil union are entitled to all the benefits, protections and responsibilities as an opposite sex married couple. This makes the point that partners to civil unions must be given the same status in society as married men and women.
3) RELATIONSHIP REGISTRATION
Registration is a method by which same sex couples may register their relationship on a register. This would occur in much the same way as a birth, death or marriage is registered. A scheme for registration would provide an alternative to marriage for the formal recognition of relationships for people who are in, or wish to enter into, a permanent interdependent relationship.
Registration schemes developed by other countries and Australian States
could be considered for Victoria. The United Kingdom's Civil
Partnerships Act 2004 is specific to same-sex relationships. In
Australia, Tasmania has recently introduced registration for 'significant relationships' under the Relationships Act 2003 (Tas).
Some of the similarities between the UK and Tasmanian systems include:
- The parties to the relationship need not live together in the same building;
- A minimum age is set (16 years in the UK, 18 years in Tasmania);
- A registered relationship may be revoked in the event of breakdown or death;
- Registered relationships are limited to two people.
Some of the differences between the UK and Tasmanian systems include:
- The UK law is same-sex relationship specific, whereas Tasmania allows same-sex and opposite-sex relationships to be registered.
- In the UK, the registration document must be signed in front of a registrar and two witnesses.
In the UK, the same rules for financial maintenance apply as with opposite sex couples. In Tasmania, a partner must apply to the court for maintenance.
The UK system allows for recognition of same-sex relationships registered overseas.
A system of relationship registration would remove the problem of
same-sex couples having to prove a domestic partnership in order to
exercise a legal right by simply showing a certificate of registration.
Other benefits of registration would be easy establishment of a
relationship for the purposes of discussing a partner's health
information with a doctor in an emergency situation to effect proper
treatment, and inheriting property under inheritance laws from a
same-sex partner.
A registration scheme would demonstrate that Victoria has officially recognised the union of two people in that relationship, resulting in a higher social profile for this relationship and increased legal protection in certain state-specific areas of law.
However, relationship registration at a state level does not confer all the same rights available to married people. The federal government is responsible for areas such as life insurance and superannuation laws, therefore federal laws which only refer to a 'spouse' or a 'dependent' do not make provision for a registered domestic partner. The capacity to register a domestic partnership in Victoria would be of little or no assistance under many federal laws.
Many civil union models incorporate the same features as a registered
partnership model. For example, the parties must have reached the age
of majority, have citizenship of that country, and cannot be related by
blood. The process of registration and dissolution of the civil union
also occurs in a similar way to the registration model.
Myths and facts
Myth: Marriage is for procreation and is therefore necessary for the survival of the species.
Fact: The law allows heterosexual couples to marry even if they are
infertile, post-menopausal or choose not to have children. Up to a
quarter of same-sex couples care for children. These children should
have the same opportunity as other children to enjoy whatever benefits
marriage brings to families.
Myth: Marriage is God-ordained and eternal, and same-sex marriage will destroy the institution.
Fact: In our secular, multi-faith society marriage is a civil
institution. It has changed significantly over the years: where once
marriage treated women like property, forced young people into unions
against their will, and was closed to inter-racial or
inter-denominational couples, it is now a voluntary union between
adults of any creed or colour. In those countries with equal marriage,
heterosexual marriage and divorce rates have remained the same or are
improving.
Myth: Same-sex marriage demeans the institution because homosexuals are
sinful and promiscuous, and, besides, most same-sex couples don't want
to get married.
Fact: The Bible condemns divorce but no-one would seriously suggest
outlawing it. Large-scale independent studies show that same-sex
relationships are as long lasting as their heterosexual counterparts. A
recent study found that 80% of gays and lesbians in Victoria support
the right of same-sex couples to marry, and 50% would seriously
consider marrying if they had the choice. (Not Yet Equal)
Myth: Legally recognising a wide range of different relationships will
devalue marriage and increase the amount of litigation that arises from
competing claims over shared property and child custody.
Fact: Whenever new laws are enacted to offer greater choice in how
relationships can be legally recognised, the end of marriage is
predicted. But Australia's heterosexual and same-sex de facto laws have
not devalued marriage and neither has same-sex marriage or relationship
registration in those places where such reforms have been enacted.
Officially recognising a wide range of different relationships will
decrease the amount of relationship litigation because it will clarify
between whom, and over what periods, particular relationships have
existed.
Why Relationship Recognition?
Improved mental and social health, an inclusive society.
There are serious consequences for people who are excluded from full
social acceptance and legal protection. In 2002, a report by the
Victorian Ministerial Advisory Committee on Gay and Lesbian Health
showed that experiences of homophobic discrimination led to significant
health inequalities for lesbian, gay, bisexual and transgender (LGBTI)
people[1].
These experiences created lower self-esteem, vulnerability, increased risk taking behaviours (including substance abuse) increased levels of all forms of abuse, and poorer mental health. A report on a survey of 1749 same-sex attracted Australians aged 14 to 21 showed that "homophobic abuse had a profound impact on young people's health and well-being... those who had been abused fared worse on almost every indicator of health and well-being than those who had not"[2].
The American Psychiatric Association has recognised the impact of the lack of acceptance of same-sex relationships. In May 2005 it released a position statement supporting same-sex marriage "in the interest of maintaining and promoting mental health"[3]. The American Academy of Paediatrics also endorses co-parent adoption within same-sex families, to reduce the vulnerability of parents and children[4].
The Australia Institute, a well-respected research and policy group, argues for the central importance of improving the well being of Australian's in order to build a flourishing society[5]. They argue that well-being is partly determined by personal circumstances and partly by social conditions. One area of recommended improvement to well-being is building communities and relationships.
It is our belief that the wellbeing of society is reflected by the
well-being of all the people within it. The Equal Love campaign
believes equality for same-sex couples will improve our society as a
whole by creating a more inclusive and respectful society.
(Source: 'Not Yet Equal' report, VGLRL 2005, McNair and Thomacos.)
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[1] Leonard W (ed) What's the difference? Health issues of major
concern to gay, lesbian bisexual transgender and intersex Victorians.
Ministerial Advisory Committee on Gay and Lesbian Health, Victorian
Government Department of Human Services. July 2002. [2] Hillier L,
Turner A, Mitchell A. Writing themselves in again: 6 years on. The
second national report on the sexuality, health and well-being of
same-sex attracted young people in Australia. Australian Research
Centre in Sex, Helath and Society. Latrobe University 2005, page viii.
[3] American Psychiatric Association. Same sex marriage resource
document November 2004. Available at
www.psych.org/edu/other_res/lib_archives/archives/200417.pdf and
Washington Post: Psychiatrics want recognition of gay marriage, May 23,
2005.
[4] American Academy of Pediatrics, Committee on Psychosocial Aspects
of Child and Family Health. Policy Statement: Co-parent or
second-parent adoption by same-sex parents. Pediatrics 2002; 109(2):
339-340.
[5] The Australia Institute, A manifesto for well-being. June 2005. Available at www.wellbeingmanifesto.net
