February 2016


It’s time

By Penny Wong
Penny Wong

Penny Wong. © Tim Bauer

The case for marriage equality

In 2001, when I was first elected to parliament, it wasn’t legal to discriminate on the basis of race or gender in Australia. The Racial Discrimination Act was enacted before my childhood migration from Malaysia, a quarter of a century earlier. Discrimination on the basis of gender was made unlawful, via the Sex Discrimination Act, while I was at school.

It was, however, legal to discriminate against people on the basis of their sexual orientation.

The path to equal treatment before the law has been long and arduous for gay and lesbian Australians. The decriminalisation of homosexuality in all jurisdictions was completed in 1997, but discrimination against Australians because they were gay remained lawful.

The path to full equality was blocked in 2004 when the Howard government amended the Marriage Act to insert a specific reference to marriage being “the union of a man and a woman”. The amendments also barred recognition of same-sex marriages solemnised overseas.

In 2013 the Labor government in which I served amended the Sex Discrimination Act to make it unlawful to discriminate on the basis of sexual orientation, gender identity or intersex status. Same-sex couples also gained protection from discrimination on the basis of their marital or relationship status. Dozens of other laws – on superannuation, Medicare, social security, immigration and taxation – removed discrimination against same-sex couples and their children.

There remains one roadblock to equality.

While there are recognised gay and lesbian Australians in public life, on our sporting fields and on our television screens, and same-sex relationships have become more visible and less stigmatised, when it comes to same-sex marriage Australia remains stuck – right where John Howard left us in 2004.

Australia entrenched discrimination in the Marriage Act as the rest of the world was moving on. Among others, Spain, Canada, South Africa, Norway, Sweden, Argentina, Denmark, France, Brazil, England, Scotland, the United States and even Ireland have since recognised marriage between same-sex partners.

We can all see the change in opinion polls, support from business, cross-party agitation, changes to Labor’s national platform, and marches and rallies and petitions across the nation.

I see it in meetings with parents of gay and lesbian Australians who demand equal rights for their children, and in encounters with young people who can’t understand why our laws don’t reflect the world in which they live. Australians no longer ask, “Why?” They ask, “Why not?”

I can sense change in other ways too: in the thoughtful messages my partner, Sophie, and I received on the birth of our daughters; in the kindness of strangers stopping me in the street to ask after our family; in the attitudes of a man in work gear, extending a calloused hand, telling me how wonderful it is to be a parent, and a woman in the market handing our four-year-old another biscotti; and in the simple care and acceptance among staff and parents at our child-care centre, sharing stories about yesterday’s meltdown or memorable quote.

These acts recognise our shared experience of love and family. They aren’t political, they’re human.

Most people recognise what our marriage laws don’t: gay and lesbian Australians are just like everybody else. The challenges of parenting we experience – the sleepless nights, the struggle to find child care, the angst over schooling – are the same. Our relationships are like other relationships. Our desire to make a public and lasting commitment to the woman or man we love is the same, too.

Most people also understand that there is nothing to fear from equality. Marriage does not need to be quarantined to have value. In 2012, John Key, New Zealand’s conservative prime minister, spoke for many when he said, “if two gay people want to get married, then I can’t see why it would undermine my marriage to Bronagh”. Likewise, I have never understood how my commitment to Sophie could threaten anyone else’s marriage.

Australia once embraced the White Australia policy, authorised the deprivation of the first Australians’ kinship and culture, set women’s wages lower than men’s for the same work, and barred married women from many occupations. Times change: our statute books are no longer vehicles for discrimination on the basis of gender or race.

Gay and lesbian Australians can vote, serve in the military, represent our country on the sporting field, teach in our universities, preside as judges, staff our hospitals, and be a member of the federal cabinet. Yet we cannot marry the person we love.

Imagine for a moment that our parliament had sought to prohibit marriage to a person of different ethnicity, or religion.

Our national parliament legislates against many wrongs. Wrongs so injurious to the peace, order and good government of the Commonwealth they must be prohibited. Our parliament has determined that same-sex marriage is such a wrong. This notion echoes a prejudice that we no longer accept.

One of the things that make liberal democratic societies both liberal and democratic is the equal treatment of people: granting the same rights, imposing the same responsibilities and giving access to the same opportunities. Discriminating against people on the basis of an innate characteristic, like sexual orientation, is anti-liberal and anti-democratic.

In last year’s landmark judgement holding that same-sex couples enjoy the same right to marry as other citizens, the US Supreme Court recognised that denying the right to marry is an affront to liberty. The court supported marriage equality on the basis that it extended recognition, stability and predictability to the children of same-sex couples, and promoted the role of marriage in maintaining social order.

The reasoning is applicable here. The exclusion of gay and lesbian Australians from the institution of marriage – by design, not choice – is hurtful and harmful, and it’s not just our children affected by the exclusion.

Every engagement party, wedding invitation and marriage notice is a sharp reminder that some relationships count more than others.

The US Supreme Court got it right when it found that “the nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality”. Marriage can confer emotional, psychological, legal and financial benefits on couples.

Marriage also delivers a social good. There is now a body of academic work that shows people who are married tend to have greater financial capacity, economic security and even better health outcomes. Stable relationships also improve the welfare and prospects of children.

As my parliamentary colleague Andrew Leigh has shown, in his book Battlers and Billionaires, family structure, stable relationships and parenting styles are important ingredients in redressing social disadvantage and inequality.

It’s not just social democrats who recognise the value of marriage equality. David Cameron, the conservative prime minister of the United Kingdom, has observed, “Society is stronger when we make vows to each other and we support each other. So I don’t support gay marriage in spite of being a Conservative. I support gay marriage because I’m a Conservative.”

Marriage isn’t for everyone – maybe not even Dolce & Gabbana – but that’s hardly the point. That there are couples – gay and straight, with and without children – who don’t want to get married is no reason to retain an exclusionary definition in Australian law.

On any moral calculus, whether viewed through the prisms of individual choice, social justice, utilitarian ethics, welfare economics or effective social policy, marriage equality is both necessary and overdue.

The principle of equality is a powerful precept. It has founded social, legal and political reform throughout human history. It is central not only to how we envisage today’s Australia but also to the world we want our children to know.

None of the arguments against marriage equality can compete with those in its favour.

The “immutability” of marriage is a favourite argument of advocates for discrimination. My parliamentary colleague Cory Bernardi put it succinctly when he said “marriage simply is”.

While marriage has been around a long time, it is not immutable. It is an institution that has evolved over time.

The American legal scholar William Eskridge has argued that same-sex marriage flourished in pre-modern Western societies. Only during the late Roman Empire were same-sex unions suppressed as the early Christian church institutionalised opposite-sex marriage.

Any reader of Jane Austen knows that property, inheritance, social position and family alliances once mattered more than love. The marriage we recognise, with its emphasis on love and autonomy, would be mostly unrecognisable to our forebears.

Marriage laws have changed, too. Different classes of people have been excluded from the institution based on their social or legal status: in the past, slaves and prisoners; today, gays and lesbians.

In some places, it was illegal for men and women of different races to marry one another. The last laws banning interracial marriages in the United States were not struck down until the late 1960s.

In Australia, many Aboriginal people were not allowed to marry without permission from the state.

The legal rights and social roles of married partners have also changed. For centuries, married women could own no property, had no independent legal identity, were deprived of redress for rape by their husbands, and enjoyed the status of mere chattels.

These laws were gradually dismantled from the middle of the 19th century. The second wave of feminism in the 1960s and 1970s delivered a further seismic transformation in the laws of marriage throughout the Western world.

Nancy Polikoff, an American professor of law, has described how the “old” laws punished sex outside of marriage, imposed disastrous consequences for children born out of wedlock, fostered separate gender roles, and imposed penalties on those seeking to leave a marriage. With the changing social attitudes came a new script. As Polikoff puts it, “The new laws discarded the gender script, made entry into marriage more optional, and made exit from marriage more ordinary. In doing so, they made marriage a different institution and opened avenues for recognition of new family forms, including those of gay men and lesbians.”

Marriage is an enduring institution, but it has never been frozen in time. Earlier generations sought greater equality, and with each change – including the Whitlam government’s introduction of no-fault divorce in Australia – came warnings that the institution would be irreparably damaged and the fabric of society would unravel.

The dire warnings were unfounded. Marriage has endured because it has evolved, adapted and embraced change.

“All over the Western world, the movement to transform marriage is underway,” stated the Reverend Dr Margaret Mayman of Sydney’s Pitt Street Uniting Church last year. “However, it is not gay and lesbian people who have been transforming marriage. It is heterosexuals. It is precisely because heterosexuals have changed marriage from an economic arrangement to a relationship of love and support that gay and lesbian people are seeking to join it.”

Faith-based views about marriage, as Dr Mayman reminds us, are not monolithic. Nevertheless, opposition to marriage equality is often expressed using the language of religion. For example, the Anglican Archbishop of Sydney, the Most Reverend Dr Glenn Davies, recently declared that “God created marriage as a man–woman, exclusive, permanent union”.

I’m not a theologian. And I believe humility is an element of faith. Maybe that’s why I don’t try to speak for God. I don’t think, however, that the God I know would be affronted by my sexuality, or my family.

Yet even if I was certain I knew what God was thinking, that certainty shouldn’t be allowed to dictate the definition of marriage.

Liberal democracy is not compatible with fundamentalism of any description, whether ideological or spiritual. Since the argument for the separation of church and state was made out by John Locke in the 17th century, it has been accepted that the values of liberalism mean the state must not impose one set of beliefs on all members of society; they also mean we distinguish between the private domain of faith and spirituality and the “public square” of policy and law.

Section 116 of our Constitution provides that the Commonwealth shall not make any law for establishing any religion, or impose any religious observance. “That separation was actually seen as an important guarantee of religious freedom,” Professor Carol Johnson of the University of Adelaide has observed.

Religious freedom means being free to worship and to follow your faith without suffering persecution or discrimination for your beliefs. It does not mean imposing your beliefs on everyone else. And it most emphatically does not mean deploying the power of the state to enforce one set of religious beliefs. “Religious liberty,” writes the philosopher John Corvino, “does not include the liberty to live in a world where the law enforces your particular religion’s conception of marriage. Just the opposite.”

The argument against same-sex marriage on religious grounds is not founded in religious freedom. Its intrinsic logic, that the personal beliefs of some ought to be imposed by the secular state on all, is an argument for religious privilege, not religious freedom, and is consistent with neither our liberal democratic principles nor the separation between church and state.

The separation of church and state cuts both ways. Religious objections to same-sex marriage should not constitute the final word in the marriage equality debate, but nor should legal reforms compel people of faith and their institutions to change their practices. The need to maintain a separation between religion and the state is not just a matter of political theory; it is a critical lesson from our shared history of religious intolerance and persecution.

For this reason, no marriage equality bill passed by the national parliament would require churches to conduct same-sex weddings.

A red herring routinely thrown in the pond of the marriage equality debate concerns the fate of those who provide commercial wedding services.

It seems to me that dragooning a hostile caterer or a disapproving photographer into being part of your special day would be a recipe for overcooked main courses or blurry photographs. In the real world, I suspect market forces and common sense will prevail.

Any additional exemptions to anti-discrimination laws to accommodate faith-based objections to same-sex marriage would need to be considered carefully.

Various passages in the Bible label divorcees as adulterers. Yet we would not countenance a wedding cake maker refusing to provide a service to a divorced man or woman.

In any event, the perspectives of religious butchers, bakers and candlestick makers do not justify the maintenance of discrimination against same-sex couples.

The welfare of children is often used to defend marriage discrimination. This line of argument ignores reality. Children are already growing up in same-sex couple households. Preventing same-sex couples from marrying won’t change this.

Such discrimination only denies these children any of the benefits of growing up in a household with parents who have chosen to make a public and recognisable commitment to each other.

As the US Supreme Court noted, discriminatory marriage laws harm and humiliate the children of same-sex couples. If marriage is an important social institution, its denial sends an unmistakable message.

The “think of the children” argument is among the most hurtful in the marriage equality debate. It posits that gay and lesbian relationships harm children, that gay and lesbian parents are bad parents. Growing up is hard enough without being told your family is second-rate.

The most bigoted expression of the argument – that the children of same-sex parents are a “stolen generation” – is courtesy of the Australian Christian Lobby. This is not an argument against marriage equality. It is an argument against gay and lesbian Australians being parents. Actually, it is an argument against gay and lesbian Australians being at all.

Outcomes for children growing up in households with same-sex parents are demonstrably little different from others. The Australian Institute of Family Studies notes that “most studies suggest that children raised by lesbian parents do at least as well as their peers with heterosexual parents when compared on a range of social, psychological and educational variables”.

The institute also notes that “family processes such as levels of conflict between parents and their divisions of labour are more influential than the gender or sexuality of parents when it comes to children’s wellbeing”. None of this is surprising. Safe, loving and emotionally nurturing parenting is what matters, not the sexuality of parents.

Some of those who use the welfare of children as an argument for continuing marriage discrimination have relatively little to say about violence, abuse, poverty and deprivation.

The sexual orientation of same-sex parents presents no threat to the wellbeing of their children, and those who say it does should desist from repeating the slur.

In Australia, we can achieve marriage equality by rewriting a few dozen words in the Marriage Act. We don’t need a referendum, a plebiscite or a contest in our highest court. We need political leadership.

Marriage equality enjoys widespread support: from progressives who embrace government action to enhance equality and protect the rights of minorities; from liberals who champion the primacy of the individual and freedom of choice; from conservatives who promote the role of the family and want to maintain the relevance of traditional institutions; and from libertarians as a contribution to maximising individual liberty and minimising state authority.

Despite this support, many of those who should be leading are engaged in barely disguised sabotage. The proposed national non-binding plebiscite, or vote, is the latest in a series of obstacles erected by opponents of marriage equality, supported by others who really should know better.

Australia has not had plebiscites on other fundamental issues of human rights and justice, such as abolishing the death penalty, ending the White Australia policy or enacting the native title regime. The Racial Discrimination Act and the Sex Discrimination Act were enacted without a “people’s vote”.

When Cory Bernardi, Scott Morrison and the Australian Christian Lobby are supporting a plebiscite, you know it’s not because they want to achieve marriage equality. And when a Liberal prime minister changes position to support a plebiscite rather than a parliamentary vote, you know it’s not a question of principle, but one of internal divisions in the Liberal Party and the Coalition.

A plebiscite would inevitably provide a licence for hate speech to those who need little encouragement. Opponents of marriage equality already use words that are both hurtful and intended to hurt.

A fear campaign could also win the day. Last year, in Texas, the Houston Equal Rights Ordinance, a measure that would have banned discrimination on the grounds of sexual orientation, gender, race or age, was put to local voters.

Opponents mounted a fear campaign. They claimed this change would allow sexual predators to enter women’s toilets, and they demonised transgender men and women with the slogan “no men in women’s bathrooms”. Despite widespread support from political leaders, including President Barack Obama, and major corporations, including Apple and General Electric, the measure was defeated. It is a reminder of the risks a plebiscite faces.

My hope, as per Labor’s position (Bill Shorten will introduce a marriage equality bill within 100 days if Labor is elected), is that the Australian parliament can do the job that our Constitution already allows, and our High Court already recognises, which is to remove discrimination from the Marriage Act through amending legislation.

Should a plebiscite be held, it would be incumbent on those engaged in any campaigning to conduct it in a respectful way. A particular responsibility would fall on political leaders, as it would require broad agreement across the parliament on the plebiscite question and the mechanics of the ballot.

Those of us who support marriage equality, who want to see community support reflected in our laws, would need to work across party lines, and effectively engage activists and supporters in our common cause.

Australia’s history tells many stories: of struggle, conflict, change and progress. Ours is hardly a story without prejudice and discrimination, but we know from experience that prejudice and discrimination can be overcome. What we have in common matters more than the division and difference some wish to cultivate. My hope is that understanding and acceptance will prevail, and be reflected in our marriage laws.

Last Christmas I attended a Rainbow Carol Service at Semaphore Uniting Church in Adelaide. It was a touching, sincere celebration. One of the parishioners wore a T-shirt that read “It’s just love”.

It was a simple, but profound, summation of not just the campaign for marriage equality but the human condition.

Penny Wong
Penny Wong has represented South Australia in the Senate since 2002, and is the current Leader of the Opposition in the Senate.

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