A couple of weeks ago, my fiancé Steven and I were walking around Centennial Park in Sydney when we started discussing possible wedding dates.
That shouldn’t be remarkable: an engaged couple talking about the timing of their nuptials. Except it was probably the first time in about five years that we seriously considered when and where we might hold our ceremony.
The previous conversation coincided with the last proper vote on marriage equality in Commonwealth Parliament – way back in September 2012. But now, with the same-sex marriage postal survey drawing to a close, there is a real prospect that marriage equality might finally become law in the months ahead.
Of course, there are some major hurdles still to overcome before Steven and I start booking venues and sending out save-the-date cards.
The first, and most obvious, hurdle is that the Australian Bureau of Statistics must announce a majority Yes result at 10am on Wednesday 15 November, just ten days from now.
Assuming that outcome is favourable, the second hurdle is for our 226 parliamentarians to pass legislation to respect the wishes of the Australian population.
That part should be relatively straight-forward – amending the Marriage Act to make the definition of marriage inclusive of LGBTI couples, and to recognise the marriages of thousands of couples that already exist.
But it is highly likely the debate around what should be included in, and excluded from, a marriage equality bill will be just as divisive as the postal survey that preceded it, if not more so.
That is because the same groups who have steadfastly opposed the equal recognition of LGBTI relationships, including the Australian Christian Lobby and conservatives within the Coalition, are now arguing that any bill to introduce marriage equality must be weighed down by new special privileges allowing discrimination against us across multiple spheres of public life.
As reported by news.com.au these changes: “could include lessening hate speech laws, axing legislation that gives same-sex parents the same rights as straight parents, barring gay couples from accessing IVF and allowing parents to remove kids from any school lesson that even fleetingly mentions gay people. There is also the prospect of businesses being given the green light to refuse to serve anyone who is gay, not just those organising same-sex weddings.”
The introduction of such amendments would fundamentally alter the purpose of the legislation being debated. It would no longer be a marriage equality bill, it would instead be a bill to promote discrimination against LGBTI Australians, where expanding the right to marry would be purely incidental.
Obviously, these changes must be resisted, and resisted strongly, which means it will once again fall to LGBTI Australians, and our allies, to argue for the equal treatment of our relationships.
Once again, we have the arguments on our side. From the principle that secular law should not discriminate against people on the basis of their sexual orientation, gender identity or sex characteristics, to the ideal of a fair go which means one form of discrimination should not simply be replaced by another.
We must also highlight the inconsistency of those claiming these rights to discriminate are necessary to protect ‘religious freedom’ – if they have not historically been required to allow discrimination against divorced couples remarrying, they are not necessary to permit discrimination against same-sex couples now.
But there is another argument against the introduction of these new special privileges to discriminate that I would like to talk about, and that is the theory of political mandates (I know, I know, this is far less romantic than discussing possible wedding dates, but please hear me out).
For those who don’t know, a mandate is defined as ‘the authority to carry out a policy, regarded as given by the electorate.’
In this case, the Australian electorate has just participated in a $122 million, three month long, nation-wide postal survey to determine whether it supports same-sex marriage. If the result is Yes, as is widely-expected, what does that mean for the ‘mandate’ of the Government, and the Parliament more broadly?
- There is a mandate for same-sex marriage
The first, and least controversial, outcome is that, if the population has voted yes, there is a clear mandate for Parliament to introduce amendments that allow all lesbian, gay, bisexual, transgender and intersex Australians to marry. Not even Lyle Shelton could argue against that (well, he might try, but should be ignored).
- There is no mandate for new special privileges to discriminate against same-sex couples
On the other hand, a Yes vote does not provide the Government or Parliament with a mandate to introduce new special privileges allowing individuals and organisations to discriminate against LGBTI couples.
Why? Because of the question that Australians were asked to answer: ‘Should the law be changed to allow same-sex couples to marry?’
What is not there is just as important as what is. There were no asterisks at the end of the question, no footnotes on the survey form saying ‘different terms and conditions apply’.
Nor were there any extra clauses – it did not ask whether the law should be changed to allow same-sex couples to marry subject to additional rights to discriminate against them.
The absence of asterisks, terms and conditions or extra clauses on the postal survey question means Parliament does not have a mandate to introduce asterisks, terms and conditions or extra clauses to our equality in the Marriage Act.
Indeed, this point was (inadvertently) conceded by former Prime Minister John Howard in September, when he called for current Prime Minister Malcolm Turnbull to release details of the Bill it would put forward in the event of a Yes vote:
“On the evidence to date, it would seem that the only protections in that bill will not go much beyond stipulations that no minister, priest, rabbi or imam will be compelled to perform a same-sex marriage ceremony… It is precisely because parliament should reflect the will of the people that the people are entitled to know what, if anything, the government will do on protections before they vote.”
The fact the Turnbull Government did not put forward any official legislation means, by Howard’s own rationale, it does not have a mandate to introduce new special privileges to discriminate against LGBTI couples.
- There is a mandate for marriage equality
The wording of the postal survey question means a Yes vote does provide the Parliament with a mandate to introduce genuine marriage equality. In fact, I would argue they have an obligation to do exactly that.
Unless the question specifically stated that same-sex couples would be treated as lesser than cisgender heterosexual couples are now – which, as we have seen, it did not – then the logical inference is that they would and should be treated the same.
And that is exactly how the question was interpreted by the Australian population.
As reported by Buzzfeed this week, a Galaxy poll: “canvassed 1,000 Australians on their views on same-sex marriage from October 26 to 30.
“In response to the question, ‘If the majority vote ‘yes’ in the postal survey, should same-sex couples be treated the same under the law compared with other couples?’, 78% of respondents said yes.
“This figure consisted of 98% of respondents who said they had voted ‘yes’, and [even] 43% of those who said they had voted ‘no’.”
As noted by PFLAG’s Shelley Argent in the same article: “This poll couldn’t be clearer. Australians want marriage equality and we want it without any of the caveats and exemptions that will further entrench discrimination against same-sex couples.”
And so, if the outcome of the postal survey on 15 November is a Yes, then the message to our Parliamentarians will be unambiguous – they should provide LGBTI Australians with the right to marry, and they must do so on exactly the same terms as it is enjoyed by cisgender heterosexual couples today.
Nobody should underestimate the scale of the challenge that lies ahead of us. Even if we win the postal survey in ten days time, the debate that follows, about what same-sex marriage looks like in practice, is going to be a messy one.
Our opponents will fight just as hard, and just as dirty, as they have over the past few months. We will need to rely once more on our patience, our passion and our principles to win.
It is also unclear how long this debate will last. While some express the hope that marriage equality could be passed by Christmas, it is possible that this process will take several months to resolve, lasting well into 2018. There is even the chance that same-sex marriage is not passed this term, because the legislation that is put forward has to be rejected as it falls short of true equality.
All of which means that, while Steven and I have (re)started our discussion about possible wedding dates, we still have no clear idea when that might ultimately be.
But I do know this: when I asked him to marry me on that January day in Melbourne almost eight years ago, there were no conditions attached. When Steven and I finally get married, there shouldn’t be any conditions attached either.