No 9 Still No Marriage Equality in Australia

This is an issue where there were a number of different highs – and lows – over the course of the past 12 months. Given my naturally glass half empty personality, we’ll start with the lows.

The most obvious ‘low’ was the High Court’s ruling last Thursday (12 December), overturning the ACT’s same-sex marriage laws as unconstitutional, after just five days of operation, as well as annulling the marriages of all the couples who had taken the opportunity to tie the knot under the law.

One can only imagine how awful the past few days would have been for these couples, experiencing the elation of being married, at long last, to the frustration of having that status ripped from their grasp just days later.

In fact, 2013 was not a good year for the idea of state and territory same-sex marriage laws generally. State-based marriage was defeated, narrowly, in votes the Tasmanian upper house (after passing the lower house, yet again), and by one vote in the NSW upper house (although it was likely headed for defeat in the lower house there). A similar Bill was defeated by a much larger margin in South Australian Parliament.

Now, it seems the High Court has ruled out the option of state-based marriage permanently (at least as far as they are close enough to marriage under the Commonwealth Marriage Act to deserve the title ‘marriage’).

And the Federal Election was also not a good one as far as marriage equality was concerned. A Prime Minister who supported marriage equality, leading a party the majority of whose MPs had voted yes just 12 months earlier, was replaced by a Prime Minister who remains staunchly opposed to equality (even that of his own sister), leading a Liberal-National Coalition of whom exactly ZERO MPs voted yes in September 2012.

Overall, then, there was a lot of bad news to spread around. But 2013 was not universally negative for marriage equality in Australia.

The same High Court decision that overturned the ACT’s same-sex marriage laws also included a key finding – that the Federal Parliament unambiguously has the power to introduce marriage equality.

That might sound, to some, as merely a small win, but it actually takes one of the main arguments against marriage equality in the Commonwealth arena off the table (namely that s51xxi of the constitution – aka the ‘marriage power’ – could only mean marriage of opposite-sex couples).

In what turned out to be a quite progressive judgment (despite the outcome), the Justices wrote:

“”marriage” is to be understood in s 51(xxi) of the Constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.”  Link to full judgment here: http://www.austlii.edu.au/au/cases/cth/high_ct/2013/55.html

In short, marriage can be the union of two people (or more, if the Parliament so chooses) irrespective of their sexual orientation, gender identity or intersex status. That is a statement of what is ‘possible’. It is up to our parliamentarians to make it real.

Another ‘high’ was that those couples in the ACT were able to marry in the first place. The fact that, for five full days, newspapers and TV stations around the country carried pictures of happy couples getting married, where the only difference was that their spouse was the same sex as themselves, can only be of cementing victory in the long war of acceptance.

Same-sex couples were married, the sky didn’t fall, nobody else’s marriage was diminished and, for the benefit of people like Senator Bernardi, no pets were interfered with either.

Another glimmer of hope is that the Liberal Party’s position was slightly better at the 2013 election than it was at the 2010 one. While previously the Liberals and Nationals were universally committed to voting no on marriage equality, prior to September 7 they adopted the line that whether there was a conscience vote would be “a matter for the post-election Coalition party-room”.

Given Tony Abbott’s strong opposition, there is no guarantee of a conscience vote happening, but the door is at least slightly ajar – it is now up to people like Malcolm Turnbull to force it open.

Another door that is slightly ajar is the possibility of the 2014 ALP National Conference adopting a binding vote in favour of marriage equality. Something that should have happened in 2011, when the platform was changed, were it not for the homophobic position adopted by then Prime Minister Julia Gillard, is a live option because of recent remarks by AWU National Secretary Paul Howes, who conceded that he had been wrong to support a conscience vote back then.

With Howes’ crucial support, and another three years of time elapsed, there might, just might, be enough support from conference delegates to impose a binding vote on Parliamentary members of the Labor Party. And that is definitely something worth fighting for. Because, mathematically, we may well need a conscience vote from the Coalition, and a binding vote from Labor, for any marriage equality Bill to pass the Commonwealth Parliament, at least this term anyway.

The formation, last week, of a cross-party group to work towards marriage equality in the Parliament, drawing members from the Coalition (Sue Boyce), ALP (Louise Pratt) and Greens (Sarah Hanson-Young), will also likely be remembered as a key step along the road to equality.

The final ‘high’ from 2013 is something which now probably doesn’t hold a lot of sway, but which was a powerful statement of intent at the time: then Prime Minister Kevin Rudd’s ‘Bartlet’ moment on the ABC’s Q&A. (http://www.youtube.com/watch?v=CdU3ooAZSH8)

When asked by a Christian pastor how, as a Christian, Rudd could support marriage equality when the Bible commands him to believe differently, Rudd rebuked him with a smackdown that was brilliant both in its argument and in its eloquence. It was Rudd at his best – and, watching it three months later, it still brings a smile to my face.

Even if it was only for a few fleeting months, we finally had a Prime Minister join the majority of the Australian population in the 21st century in believing that all couples must be treated equally.

How much longer we have to wait for that community belief to be reflected in the statute books will depend a lot on what happens in 2014, inside the Coalition Party-room and at ALP National Conference. I guess it’s time to prepare to protest once more.

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