MARRIAGE EQUALITY FOR ALL AUSTRALIANS

MARRIAGE EQUALITY FOR ALL AUSTRALIANS

GUARANTEEING SECURITY AND CERTAINTY FOR EVERYONE

Christopher Puplick

Larry Galbraith

1

MARRIAGE EQUALITY FOR ALL AUSTRALIANS: GUARANTEEING SECURITY AND CERTAINTY FOR EVERYONE

CHRISTOPHER PUPLICK

LARRY GALBRAITH

? 2014 Christopher Puplick and Larry Galbraith.

The authors give permission for the copying, reproduction or circulation of this publication for the purposes of providing information or contributing to the public debate providing there is full acknowledgement and attribution of the publication and its authors and this is done for no fee or reward.

This work may be cited as: Puplick, Christopher and Galbraith, Larry: Marriage Equality for All Australians: Guaranteeing security and certainty for all, Sydney Australia, May 2014.

AUTHORS

CHRISTOPHER J PUPLICK AM, BA (HONS), MA, JP

Former Liberal Senator for New South Wales, Shadow Minister for Environment, Arts & Heritage, and Manager of Opposition Business in the Senate. Former New South Wales AntiDiscrimination and Privacy Commissioner. Former Chair: Australian National Council on AIDS, Hepatitis C and Related Diseases; AIDS Trust of Australia; National Film and Sound Archives of Australia; Central Sydney Area Health Service; and National Taskforce on Whaling. Current: Principal, Issus Solutions P/L.; Chair of the Board of Justice Health and Forensic Mental Health Service (NSW). Awarded membership of the Order of Australia "For services to protection of human rights and access to social justice, and to community health through advocacy and support in HIV/AIDS."

LARRY GALBRAITH BA, Grad Dip Arts

Former Editor, Sydney Star Observer, Campaign and Associate Editor, Outrage. Advisor to Clover Moore MP on the legal recognition of same-sex relationships and co-drafter of the Significant Personal Relationships Bill 1997 (NSW). Currently Policy Officer in the Office of the Lord Mayor of Sydney.

The Authors would like to thank Michael Chapman for extensive assistance with this publication, including editing, undertaking additional research, proof-reading and factchecking, and for its design and layout. Responsibility for the contents of the publication remains exclusively with the Authors.

The Authors note that this document is prepared in their personal capacities only and does not purport to reflect anything other than their personal opinions. There is no charge for this book, and no charge should be imposed if it is reproduced and/or distributed by any other person. The authors may be contacted about any aspect of this publication via: marequ2014@.au

Marriage Equality of All Australians: Guaranteeing Security and Certainty for Everyone

2

"Be ye not afraid."

Deuteronomy 1 : 29 These words were used as the conclusion of his speech by Hon. Maurice Williamson MP, a member of the Parliament of New Zealand speaking in support of legislation to introduce same-sex marriage, April 2013.

"When people's love is divided by law, it is the law that needs to change."

These words were penned by the Rt Hon David Cameron MP, Prime Minister of the United Kingdom and Leader of the Conservative Party, and published in the gay publication Pink News to mark the day on which the first same-sex marriages were performed in England and Wales, March 2014. We could not say better.

Marriage Equality of All Australians: Guaranteeing Security and Certainty for Everyone

3

OUR SIMPLE SYLLOGISM If it is accepted (as the Authors do) that marriage is one of the bedrock institutions upon which free societies such as Australia's are founded, and indeed that, in the words of the current Attorney-General (Senator Hon George Brandis QC) "there is a pre-eminence among relationships accorded to marriage in our society"

and If, as is clearly the case in Australia, marriage is a civil/legal institution (to which people are free to add a religious dimension if they so choose), recognised and regulated by laws passed by Parliaments elected to represent all the people,

then it follows that Deliberate, legislative exclusion, as a matter of public policy, from access to marriage of a whole category of people (namely same-sex attracted, qualified and competent adults) by definition on the basis of their fundamental, inherent and unalterable sexuality and personal identity:

? Publicly uses the force of law to discriminate against those persons on the basis of an inherent, unalterable characteristic of their personhood and lives, and

? weakens society itself by excluding improperly a whole category of people from access to a fundamental institution in society,

So that such a determination must be: ? wrong as a matter of principle, ? wrong as a matter of public policy, and ? wrong as constituting morally repugnant discrimination,

And since it is possible for these wrongs to be corrected legislatively, there is no case for allowing them to continue. They should be repealed. Now.

Marriage Equality of All Australians: Guaranteeing Security and Certainty for Everyone

4

CONTENTS

1 EXECUTIVE SUMMARY

8

2 INTRODUCTION

10

3 MARRIAGE EQUALITY IN CONTEXT

15

3.1 A Rose by Any Other Name?

15

3.2 Civil Institution and Religious Sacrament: The Distinction

18

3.2.1 The increasing secular nature of marriage

20

3.2.2 Tony Abbott and secular marriage

22

3.2.3 A historical note on the sacramentalism of marriage

23

3.3 Marriage and Family Law as Beneficial Legislation

25

3.3.1 Marriage (Overseas) Act 1955

25

3.3.2 Matrimonial Causes Act 1959

26

3.3.3 Marriage Act 1961

27

3.3.4 Hague Convention and Marriage Amendment Act 1985

28

3.3.5 Family Law Bill 1974

29

3.3.6 Family Law Amendment Bill 1983

29

3.3.7 Marriage Amendment Bill 2004

30

3.3.8 Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 32

3.3.9 A note on some judicial decisions

34

4 TOWARDS MARRIAGE EQUALITY

36

4.1 Support for Same-Sex Marriage: Old and New

36

4.1.1 The Media

36

4.1.2 The Church of State: the Anglican Communion

39

4.1.3 Political leaders ? support among Liberals and Conservatives

42

4.1.4 Public Opinion

46

4.2 Same-Sex Couples throughout History and in Contemporary Australia

51

5 INTERNATIONAL RECOGNITION OF SAME-SEX MARRIAGE

56

5.1 Western Europe

56

5.2 The Commonwealth of Nations ? Past and Present Members

60

5.3 United Kingdom

61

5.4 United States of America

71

5.4.1 The slowly emerging movement for marriage equality

75

5.4.2 Action at the Federal level

78

5.4.2.1 "Defending marriage"

78

5.4.2.2 Overturning DOMA

79

5.4.2.3 Immediate outcomes of the DOMA decision

81

5.4.2.4 A new Federal approach: a new frontier in Civil Rights

82

5.4.3 Same-sex marriage at the State level

84

5.4.3.1 Action for same-sex marriage preceding Windsor

84

Marriage Equality of All Australians: Guaranteeing Security and Certainty for Everyone

5

5.4.3.2 Action for same-sex marriage post Windsor

88

5.4.3.3 Same-sex marriage: on and off

96

5.4.3.4 Having it both ways

101

5.4.3.5 Other action at the State level Post-DOMA

101

5.4.4 An American Constitutional Right to same-sex marriage?

104

5.4.5 Mapping same-sex marriage in America

105

5.5 A Little History ? with an Australian Connection

107

5.6 Central and South America

109

5.7 Asia and the Middle East

111

5.8 Implications of International Recognition for Australia

113

6 DEVELOPMENTS IN AUSTRALIAN JURISDICTIONS

117

6.1 Developments at the National Level

117

6.1.1 Slowly retreating from the 2004 Amendments

117

6.1.2 The Commonwealth - 2012 Senate Committee Report and aftermath

120

6.1.3 Same-Sex Marriage Bills ? Parliamentary debates

122

6.1.4 Extending protection from discrimination

129

6.1.5 The 2013 Federal Election and its aftermath

131

6.1.6 The Australian Labor Party ? Beware the "Shoppies"

136

6.2 States and Territories

137

6.2.1 Australian Capital Territory

138

6.2.1.1 Civil partnerships and civil unions

138

6.2.1.2 Same-sex marriage

140

6.2.1.3 The High Court decision

143

6.2.2 Tasmania

146

6.2.3 South Australia

148

6.2.4 Queensland

149

6.2.5 New South Wales

150

7 OPPOSITION TO SAME-SEX MARRIAGE

155

7.1 Religious Belief and Same-Sex Marriage

156

7.1.1 The decline of religion and religious belief

156

7.1.2 Diversity of religious belief

160

7.2 Pirating Penzance: Deconstructing a 19th Century Definition of Marriage

162

7.2.1 The long process of social history

162

7.2.2 Constituent elements of the definition of marriage

163

7.2.2.1 Marriage as "understood in Christendom"

163

7.2.2.2 ... the union of a man and a woman ... Same-sex marriage in history

164

7.2.2.3 ... the union of a man and a woman ... Equal partners?

167

7.2.2.4 ... to the exclusion of all others ...

167

7.2.2.5 ... voluntarily entered into ... Freely chosen?

170

Marriage Equality of All Australians: Guaranteeing Security and Certainty for Everyone

6

7.2.2.6 ... voluntarily entered into ... A civil contract

171

7.2.2.7 ... for life ...

172

7.2.3 Onward to Penzance

175

7.2.4 Not so much a definition as a defence

175

7.2.5 Divorce Australian style

176

7.3 Pirating Penzance ? Some Words from the High Court

177

7.4 Defending "Traditional Marriage"

178

7.4.1 With and without children

179

7.4.2 "For the good of the children"

179

7.4.3 Married, but not living together

179

7.4.4 Living together, but not married

180

7.5 The Procreation Argument

183

7.6 Argument exploded: companionate marriages ordained by God

185

7.7 Addressing Concerns about Same-Sex Parenting

186

7.8 Unspoken Truth: It's not about Marriage, it's about the Homosexuals

198

7.8.1 The Roman Catholic Church

198

7.8.2 Anglican Church

206

7.8.2.1 United Kingdom: the Church of England

207

7.8.2.2 Australia: the Anglican Church

210

7.8.3 The Anglican Church in Sydney

212

7.8.4 Other Religious Denominations

214

7.8.4.1 Judaism

214

7.8.4.2 Islam

215

7.8.4.3 Buddhism

215

7.8.4.4 Hinduism

216

7.8.4.5 Orthodox Christianity

217

7.8.4.6 Episcopal Church of the United States

217

7.8.4.7 Other Christian Denominations

218

7.8.5 Not just the Churches

218

7.9 Homosexuality: the Social Reality

219

7.10 The Legal Context

221

7.11 The "Radical Argument" Opposing Same-Sex Marriage

222

8 ALTERNATIVES TO NATIONALLY LEGISLATED SAME?SEX MARRIAGE

224

8.1 Approaching Equivalence but Not Equality

224

8.1.1 Well-intentioned but flawed

224

8.1.2 Separate but equal

225

8.2 Relationship Recognition Models: Why Most Don't Measure Up

228

8.2.1 Marriage

229

8.2.2 De facto relationship

229

Marriage Equality of All Australians: Guaranteeing Security and Certainty for Everyone

7

8.2.3 Formal recognition schemes

232

8.2.4 The limitations of the alternative schemes

233

8.2.5 State-based same-sex marriage

234

9 WHY A CONSCIENCE VOTE?

236

9.1 Marriage / Family Law / Human Reproduction

236

9.2 Tony Abbott and Conscience Votes

237

9.3 Other Human Rights initiatives

238

9.4 Parliamentary Matters

238

9.5 The Parliamentary Record

240

10 A FINAL WORD

241

MAPS AND TABLES

Map 1: Marriage Equality in the USA..................................................................................................106 Map 2: USA ? A Legal Overview..........................................................................................................107 Map 3: Global Status of Marriage Equality ......................................................................................... 242

Table 1: Decline in marriages performed by Ministers of Religion ...................................................... 22 Table 2: Growing support for same-sex marriage ................................................................................ 46 Table 3: Support for same-sex marriage by party affiliation ................................................................ 47 Table 4: Global perspective on support for same-sex marriage...........................................................48 Table 5: Global perspective on views on harm to society .................................................................... 49 Table 6: American attitudes towards adultery ..................................................................................... 55 Table 7 Percentage stating "no religion" 1901 - 2011 ........................................................................ 157 Table 8: People identifying a Christian denomination........................................................................158 Table 9: Church attendance by age .................................................................................................... 158 Table 10: Australian church attendance compared to total population ............................................ 159 Table 11: De facto relationships ? Organised religion ........................................................................ 182 Table 12: Bills/issues on which a conscience vote was allowed 1950-2007.......................................240

Marriage Equality of All Australians: Guaranteeing Security and Certainty for Everyone

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download