Given the NSW Legislative Council inquiry is set to release its final report on the issue of state-based marriage laws at 3:30pm today, I thought now might be a good opportunity to publish my submission to the inquiry from back in March (but which was not published by the Committee on their website, given the overwhelming community response to this inquiry).

Anyway, as you can see it is a bit of a personal submission and I obviously stand by what I submitted, but acknowledge that I am going to need to be clearer from here on the difference between marriage equality (where all lesbian, gay, bisexual, transgender and intersex people can marry whoever they choose), and same-sex marriage, which, as the name suggests, is much more limited but which, sadly, might be the only constitutional option available to NSW (we’ll see later today.

Anyway, here is my submission. Let me know whay you think:

Legislative Council Social Issues Committee

Inquiry into Same Sex Marriage Law in NSW

Submission by Alastair Lawrie

Friday 1 March 2013

I am writing in support of the introduction of state-based marriage laws in NSW. While, ultimately, marriage equality can only be fully realised in Australia through the passage of an inclusive federal Marriage Act, in the meantime I encourage the NSW parliament to allow lesbian, gay, bisexual, transgender and intersex-inclusive (LGBTI) couples to have their relationships recognised through state-based marriage, if they so choose.

In this submission I will briefly address the four terms of reference, before discussing the story of my relationship with my fiancé Steve, and the reasons why I think we deserve the same right to be married as anybody else.

1)      Any legal issues surrounding the passing of marriage laws at a State level, including but not limited to:

1. a.       The impact of interaction of such law with the Commonwealth Marriage Act 1961
2. b.      The rights of any party married under such law in other States’ and Federal jurisdiction
3. The rights of the parties married under such a law upon dissolution of the marriage.

I am not a constitutional or family law lawyer and, as such, I do not propose to discuss whether state-based marriage laws would be constitutional in great detail, or how these laws would interact with Commonwealth and other state and territory laws, or indeed, act upon the breakdown of such marriages.

I will simply note that there is legal debate about the constitutional possibilities of state-based marriage. Professor George Williams has canvassed the legal arguments in favour of state-based marriage laws in his article “Can Tasmania Legislate for Same-Sex Marriage?”[1] I think that there is at least a credible argument, as outlined in his article, to say that it is possible that the Courts could find state-based marriage to be constitutional.

It should also be remembered that there is still some doubt that an amendment to the Commonwealth Marriage Act 1961 introducing marriage equality would be constitutional at the federal level. Irrespective of which level of government first introduces marriage equality, this matter will inevitably end up in the courts.

It should also be noted that the federal parliament has abrogated its responsibility in this area. By explicitly introducing a ban on equal marriage in 2004, and then rejecting legislation to overturn that ban in 2012, Australia’s federal parliamentarians have comprehensively failed in their duty to provide basic fairness and equality to its LGBTI citizens, including the LGBTI citizens of NSW. Based on the size of this defeat, and the immediate political outlook, it appears unlikely that this ban will be overturned at any point in the next five or even possibly 10 years.

In this context, with legal uncertainty about which level of Government can introduce marriage equality, and faced with the homophobic, bi-phobic, trans-phobic and anti-intersex intransigence of the federal parliament, I believe it is incumbent upon state parliamentarians to at least attempt to introduce marriage equality at a state level.

In the event that the legislation is overturned by the courts, which is as always their prerogative, nothing will have been lost. LGBTI-inclusive couples will know that there is a risk of this outcome, and will enter into any state-based marriages with open eyes. Nevertheless, if people are married and the legislation is ruled invalid at a later date, at least in the interim these couples will have the belief that they are married under law. And the overturning of these marriages by the courts may provide the spark required for the federal parliament to finally take the necessary action in this area.

In the event that the legislation is found to be valid by the courts, which is also possible, then the NSW parliament will have done a truly wonderful thing by recognising the ability of thousands of LGBTI-inclusive couples to have their relationships recognised as marriages under law, if they so desire. This would be an amazing recognition by state parliamentarians of the equality of LGBTI people, and the value of their relationships. If there is even a small chance of this outcome, then I cannot think of a valid reason for the parliament to shy away from this noble endeavour.

2)      The response of other jurisdictions both in Australia and overseas to demands for marriage equality.

The movement for marriage equality, both within Australia and across the world, is strong and only growing stronger. Despite the setback of defeat in federal parliament last September, and the subsequent defeat of Tasmanian state-based marriage legislation in late 2012, other Australian jurisdictions are still considering their own marriage equality proposals (including the Australian Capital Territory and South Australia). Indeed, it has been reported that the Tasmanian Labor Government and Greens are considering reintroducing their state-based marriage legislation after the upper house elections in the first half of this year (noting that the legislation was only narrowly defeated in their upper house).

Around the world, marriage equality has already been introduced in 11 extremely diverse countries: South Africa, Argentina, Canada, Portugal, Spain, Belgium, the Netherlands, Denmark, Sweden, Norway and Iceland. I am also aware of current marriage equality proposals in our near neighbours New Zealand, as well as Taiwan, Nepal, Andorra, France, Luxembourg, Finland, Scotland, England and Wales, Uruguay and Colombia (in fact, it is difficult keeping track of the long list of countries which are actively considering this issue, which means I am sure to have missed some).

In other countries with federal structures of government, state-based marriage equality has been introduced in some states of Brazil, Mexico and the United States. The United States is the best illustration of the ongoing progress of the movement for marriage equality. It is now legal there in nine states (Connecticut, Iowa, Maine, Massachusetts, Maryland, Maine, New Hampshire, New York, Vermont, and Washington, as well as the District of Columbia). While in early-adopting US jurisdictions marriage equality was introduced through either court decisions or legislative reforms (or through a combination of both), the recent additions of Maryland, Maine and Washington were the result of popular ballots (and a referendum to ban marriage equality was also defeated in Minnesota last November).

The tide of public opinion across the world is turning in favour of marriage equality, and this is one reason why 11 national governments, and some sub-national states, have introduced LGBTI equality. It is my hope that the Australian Government eventually comes to the same conclusion – but in the meantime, I believe that the parliamentarians of NSW have an ethical obligation to, at least partially, fill that void.

3)      Any alternative models of legislation including civil unions.

In some jurisdictions, civil unions have been offered as a supposed compromise proposal between the LGBTI community on the one hand, who are calling for formal relationship recognition, and religious fundamentalists on the other, who believe that the term marriage is reserved only for ‘traditional heterosexual’ couples and that, while substantive rights can be conferred on non-heterosexual couples, these relationships should carry a different name (ie civil unions or civil partnerships).

In truth, this is not a genuine compromise but instead simply a reinforcement or further entrenchment of inequality. Deliberately choosing a separate name inherently makes those relationships ‘different’ or ‘other’. Saying that opposite-sex/heterosexual couples can be ‘married’, while all other couples can only be ‘civil unioned’, does not overcome inequality; it simply perpetuates it, finding a novel way to demonstrate that those relationships are second-class.

The idea that different groups of people can be considered equal while having separate institutions has been tried before, in many different countries and applying to many different groups (including groups based on race, religion and sex). In none of these different contexts has it actually meant genuine equality. In terms of racial segregation, the US Supreme Court, in the famous case of Brown v Board of Education (1954), saw through the conceit of this concept and instead found that ‘separate but equal is never equal’.

That principle applies just as much to LGBTI people, and to their relationship recognition. To set up an entirely new system of relationship recognition for LGBTI-inclusive couples, and to maintain that system separate from the relationship recognition granted to heterosexual/opposite-sex couples, is not genuine equality. It is no wonder that the vast majority of LGBTI people reject this type of distinction and instead demand full equality. We will accept nothing less.

There are two additional points which should be made in relation to civil unions. The first is that civil unions have been adopted in some jurisdictions which are quite similar to Australia – including New Zealand, the United Kingdom and some US states. In none of these places have civil unions been adopted as a long-term solution – as described above, New Zealand, Scotland, England and Wales are all actively considering moving to marriage equality in the near future (and in several US states civil unions were merely a precursor to marriage equality). Civil unions have proved to be only an inconvenient half-way house or road-stop along the toad to equality, merely delaying full equality and ultimately pleasing no-one. There is no reason why NSW should adopt such a flawed approach.

Secondly, in some jurisdictions, particularly US states, civil unions have held some attraction because they did not have de facto recognition laws in place beforehand, meaning that the introduction of civil unions at least had the advantage of conferring additional substantive rights which LGBTI-inclusive couples did not already possess. Given that NSW and Australia have both passed comprehensive de facto relationship recognition for LGBTI-inclusive couples, this reason does not apply here. Once again, there is no justification for a new and separate category of relationships called civil unions.

4)      Changes in social attitudes (if any) to marriage in Australia.

The concept of marriage has undergone many changes over time. Originally an institution which involved male ownership of women (with that ownership passing from the father to the husband), the law now recognises the two parties to a marriage to be equal. In some countries and at some points in time, there were also laws against marriage between races – happily miscegenation laws are a thing of the past. The majority of marriages used to be performed within churches, whereas now the vast majority of weddings are officiated by civil celebrants. And the ideas of divorce, and later no-fault divorce, have been added to our marriage laws, without undermining the institution itself.

These changes show that the institution of marriage has evolved over time, changing for the better to accommodate ongoing enlightenment in societal attitudes on gender, race, religion and relationship breakdown. Through these changes, what we now understand as the fundamental nature of marriage – that it is an institution to recognise the love and commitment between two people – has not altered.

This meaning can evolve again to accommodate the fact that lesbian, gay, bisexual, transgender and intersex people are equal citizens, and should be treated equally in every respect, including relationship recognition. If society, through its laws, conveys certain rights on opposite-sex/heterosexual couples, there is no good argument to deny those same rights to other people on the basis of their sexual orientation, gender identity or intersex status.

This is a proposition which has been accepted by the majority of the Australian population. Opinion poll after opinion poll has shown that a growing majority of people support the extension of marriage rights to all adult couples, whether opposite-sex/heterosexual or LGBTI-inclusive. A Galaxy Poll in August 2012 found that 64% of Australians supported marriage equality, with only 30% opposed. This support existed across men and women, across all age groups, and from voters of all political persuasions.

The figures for NSW were consistent with this level of support – 62% of people in NSW supported marriage equality, including 28% strongly supporting, while only 32% in total were opposed. I am loathe to cite opinion polls as a stand-alone reason for social change (see Appendix A for further discussion of this point). Nevertheless, it is clear that the population have already accepted the solid public policy reasons for marriage equality – our parliamentarians should do the same.

Steve and me

My fiancé Steve and I have been together for more than four and a half years. We met two weeks after my 30^th birthday. I had begun to think that I might not ever meet the person who I was supposed to be with, and then suddenly, he was standing right there in front of me.

Steve and I are the epitome of your average, everyday couple. We have our ups and downs, just like everyone else, but we know that we love each other and that is enough to get us through.

We live our lives in the suburbs. We both work, and are trying to save enough money to buy a house (and, like other couples, are finding it hard in the Sydney property market!) We might have children in the future, we might not – we certainly want to own our own house and be settled in one place before we seriously consider doing so.

Steve and I make compromises for each other – he moved to Canberra to be with me when I was working there, and I have subsequently moved to Sydney when he wanted to move back. We do most things together, and wouldn’t have it any other way.

We got engaged more than 3 years ago. I took him on a holiday to Melbourne, and was so incredibly happy when I got down on bended knee and he said yes. I still can’t believe that someone as wonderful as him has agreed to spend the rest of his life with me.

We want to have our wedding in Australia – that is why we decided to wait for last year’s Marriage Act Amendment Bills to be considered by the federal parliament, in the hope that our federal parliamentarians might allow us to get married in the same way that opposite-sex/heterosexual couples can.

Steve and I decided that, after that terribly disappointing defeat, we would nevertheless wait for the NSW state-based marriage proposal to be debated before making the decision about finally setting a date, and most importantly, a venue. Of course, state-based marriage is not quite the same – it involves setting up a new marriage scheme separate from the existing one. But we think that it would be incredibly powerful to have our marriage recognised by the state in which we live.

If the NSW marriage amendment is defeated, then we will not wait any longer. More than three years is long enough – and I certainly don’t think many heterosexual couples would accept their engagement being made that long because their government(s) refused to allow them to tie the knot. They certainly wouldn’t accept potentially being made to wait more than 10 years, which is possible if both the federal and state parliament voted no on this issue.

Obviously, that means Steve and I will have to go overseas to get married. If New Zealand passes their law in the first half of this year, then we would most likely go there. One of the advantages of New Zealand as a location is that at least some of our family members and friends might be able to join us on our special day. If New Zealand doesn’t pass marriage equality, then we are thinking we might go to New York.

That is not as romantic as it might sound. While some of it would obviously be wonderful, and I will be happy wherever I get to marry my husband, it will also be bittersweet because we would be doing so in the absence of most of our family and friends, who would not be able to travel there (whether because they could not get enough time off work, could not afford the expense, have young children, are too old, or have health problems and cannot travel that far).

Imagine that – the decisions of your government(s) effectively determining the guest list at your wedding. No other married couples would tolerate that, and nor do we. In particular, Steve and I both have grandmothers who we love very dearly, and would love to have them with us – Steve in particular would be devastated if his grandmother was unable to attend our wedding.

If we were able to get married in Sydney, then at the very least his grandmother should be able to join us (and if it had been in place federally when we first got engaged my grandmother might have been able to join us too, although she is now probably getting too old to even travel to Sydney). As it stands, if we are forced to go to New Zealand, then neither of our grandmothers would be able to join us due to their age and health.

These are the real world consequences of the decision made by the federal parliament last year, and the potential consequences of your decision later this year. Please consider them before you cast your vote on this issue.

And please do not consider passing civil unions as some kind of supposed ‘compromise’ between the LGBTI community and religious fundamentalists. Steve and I are engaged to be married, not civil union-ed. When I proposed to him, I asked whether he would marry me – and when we do (finally) have our wedding, I will be asking him to be my husband, not my civil partner.

Civil unions, passed in the absence of marriage equality, are inherently second-best. Steve and I do not accept them as a substitute, and nor should we have to.

There are thousands of other LGBTI-inclusive couples in NSW, just like Steve and me, waiting to get married. We are the couples who watched last year while the federal parliament deliberated on our fundamental human rights and who, sadly, decided that we are not first-class citizens in our own country, that our relationships are not deserving of the same recognition as others.

We will be watching again later this year, when it comes time for NSW parliamentarians to cast their votes. Hopefully, the members of the NSW Legislative Assembly and Legislative Council can ‘show up’ their federal counterparts, by demonstrating just how easy it is to make thousands of people profoundly happy.

After all, that is the ultimate consequence of this vote. There is no downside in voting to allow additional couples to celebrate their love by getting married. But the upside is immense – being able to make many thousands of LGBTI-inclusive couples, and their families and friends, happy. I don’t think the choice is that hard – please make the right one.