Senthorun Raj: Hear Ye, Hear Ye

Personal anecdotes by people like Michael Kirby at the Senate committee on gay marriage puts into the sharp focus the discrimination experienced by same-sex couples, observes Senthorun Raj. 

On Thursday, May 3, the NSW Gay and Lesbian Rights Lobby, Australian Marriage Equality and PFLAG presented together before the Senate Legal and Constitutional Affairs Committee commending the Marriage Equality Amendment Bill 2010 to the Federal Parliament.

While many personal anecdotes were shared, of particular resonance was former High Court justice Michael Kirby’s testimony about his relationship with his partner Johan van Vloten: “I have never had a satisfactory explanation to me of how my loving relationship with my partner in any way damaged the institution of marriage or would if marriage were available to us.”

Speaking directly after us, Kirby posed a critical question for the Committee to consider: how does recognising the dignity of same-sex relationships diminish an institution that crystallises the relationship between intimacy and citizenship in Australia?

Marriage is not a religious sacrament provided for by Australian law. Opining on the constitutional significance of the word ‘marriage’ under s51(xxi) of the Australian Constitution, Kirby identified that irrespective of whether ‘marriage’ denotes the inclusion of same-sex couples; when read in light of s116 of the Constitution, it cannot purport to privilege a religious meaning of the term.

Civil marriages performed by the state are a secular option for couples wishing to formalise their relationship. The ABS data indicated that in 2009, 67 per cent of all marriages were solemnised by a civil celebrant. For religious ministers, section 47 of the Marriage Act 1961 provides broad protection for them to perform marriages according to their faith.

So if marriage does not have a religious meaning, then does it have a reproductive one?

Quite simply, the answer is no. The Marriage Act 1961 does not mandate procreation nor does it regulate parent/child relationships. Federally, such regulation is sourced in the Family Law Act 1975, which since 2008 has recognised same-sex couples and families.

In the recent Californian Proposition 8 case, Perry v Schwarzenegger, Justice Vaughn Walker even opined that it was disingenuous for opponents of marriage equality to deny an institution to children raised by same-sex couples that they claim afforded social and symbolic legitimacy to children raised in heterosexual families.

Marriage equality advocates only needed to point to the words of Conservative UK Prime Minister David Cameron to see how marriage equality appeals to normative relationship ideals of fidelity and longevity: “Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative”.

Even though de facto recognition ensures that both same-sex and heterosexual couples have the same rights, entitlements and responsibilities under federal law, there are still procedural differences that privilege those who are married. For example, for the purposes of immigration, de facto partners have much longer waiting periods than spouses.

Same-sex couples that are denied the opportunity to marry have to prove the existence of their relationship. This can be particularly onerous in situations where the next of kin status is contested, such as in situations of intestacy or medical emergencies.

The Committee also queried the potential of civil unions to provide an adequate remedy to the aforementioned lack of formal recognition. In response, advocates reiterated that if the Government pursues hierarchical mechanisms for recognising relationships, it sends out a troubling social message that same-sex relationships are not as valuable as heterosexual ones.

Marriage is neither a static nor an ahistorical institution. While we cannot predict what the future might bring, what we can deliver on now is ending one form of relationship discrimination against sexual and gender minorities in Australia.

Marriage equality: it’s time.

Follow Senthorun on Twitter: @senthorun