Legislation Basics: Same-sex Marriages In Australia

a. Outline the ethical issues and compare a range of perspectives

Today, Australian law is able to reflect societies views on marriage equality to a large extent. Marriage equality meaning that any two adult humans are able to marry, regardless of sex or gender (marriage equality – the human rights commission, 2018). Marriage equality is a controversial issue because of the many opposing views within the Australian point. The recent 2017 plebiscite saw these conflicting opinions at play and divided the people into ‘no voters’, who wanted to keep the definition of marriage to a man and a women, and ‘yes voters’, who wanted same-sex marriage legalised.

The no vote

A lot of no voters’ arguments lie in the consequences of marriage equality, not marriage itself. ‘No voters’ have argued that voting yes to marriage equality will mean parents lose control over their child’s education as non-heterosexual sex education and gender theory will be taught in schools. They also argue that marriage equality will eliminate ‘freedom of speech’ as their right to express anti-LGBT+ opinion will be taken. (Richardson-self, 2015)

Some people also argue that allowing same-sex marriage infringes on religious freedoms. This can be seen when Mark Allaby, former Price Waterhouse Coopers (PwC) executive, had to leave the board of the Australian Christian Lobby and Lachlan Macquarie Institute as it contradicted PwC’s pro-LGBT+ stance. Furthermore, Aaron and Melissa Klein were forced to close their business and pay US$135, 000 after the backlash of refusing a wedding cake for a same-sex couple (Impact on Freedoms, 2020). The Australian Christian Lobby argue that this is violating religious freedom and is discriminatory.

The strongest correlating factor with the no vote in Australia was religion. Statistics showed that the higher the percentage of people in the electorate who identified as religious, the lower the percentage of the electorate who voted yes. (Livsey and Ball, 2017). Christianity is the most major religion in Australia and has a history of disagreeing with homosexuality. There are several examples of the bible being opposed to homosexuality for example, from Leviticus, “If a man lies with another man as with a women, both of them have committed an abomination. They must be put to death”, and, from Paul, “… neither the sexually immoral, nor idolaters, nor adulterers, nor men who practice homosexuality … will inherit the kingdom of god.” Many Christians believe this, as homosexuality is considered against gods plan and marriage is created to unite a man and a women to then have children. (Ambrosino, 2017)

Some also argue that marriage equality is not necessary as same-sex couples already have equal rights as they are considered ‘de facto couples’ and have the same surrogacy rights as heterosexuals (Gilbertson et al., 2020).

The yes vote

To ‘yes voters’ marriage equality is incredibly important. The prohibition of same-sex marriage is seen as discriminatory and delegitimises same-sex couples. Marriage equality is important as it’s a symbol of acceptance. Legalising marriage for same-sex couples would be a step forward in equality for LGBT+ members. (marriage equality: it’s time – Australian Ethical, 2017)

The Australian governments 1999 Property (Relationships) Act NSW meant that couples with the LGBT+ community were considered ‘de facto couples’ much like non-married heterosexual couples. As part of the Surrogacy Act 2010 (NSW), children who were adopted or born to homosexual couples will be legally recognised as both parents child (Gilbertson et al., 2020). Thus many question why marriage has not been legalised yet.

The acknowledgment of marriage between homosexual couples by the law, removes discrimination and stigma around homosexuality in Australia. Research indicates that people within the LGBT+ community are more likely to suffer from mental health disorders, alcohol abuse and suicide. Evidence shows that this directly relates to discrimination and stigma around them. In the US, in states that limit marriage between a man and a women, LGBT+ people are more likely to suffer from alcohol use disorders and increases stress level (Jones, 2020).This is partly the reason people fought for marriage equality; to decrease discrimination and stigma and thus reap the mental health benefits for homosexuals.

Furthermore, many religious people, specifically Christians are ‘yes voters’ in the same-sex marriage debate. Many believe that, in the time that the bible was written, there was not a proper understanding of sexual orientation and had low acceptance of homosexuality at the time (Creech, n.d.). Jesus himself would have been shaped by his first century Jewish background (Ambrosina, 2017). Furthermore, many have argued that the bibles actually opposes violence, idolatry and exploitation that could occur in sexual acts, not homosexuality itself. In biblical times, marriage was an unequal relationship and was a mans ownership of a women, thus, homosexual marriage was unconventional (Creech, n.d.). Jesus’ initial opinions on divorce and adultery have adapted over time and many believe his views of homosexuality can change, to apply to modern day. Furthermore, some people, specifically Christians, hold the view that marriage is purely a religious institute, however this argument is flawed as marriage has its roots in ancient Greek, Roman and Hebrew culture. Thus, there are some Christians who vote yes to same-sex marriage. (the Origins of Marriage, 2007)

The UDHR:

There is also debate around marriage as a Human Right. The Universal Declaration of Human Rights (UDHR), article 16 says, “Men and Women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.” People have interpreted this to say that only men and women can marry or, contrastingly, that both men and women each have the right to marry. (Marriage Equality as a Human Right – Amnesty International Australia, 2017) (Universal Declaration of Human Rights, 1948). Those who campaign ‘Yes’ also refer to other UDHR articles to highlight the inequality created by prohibiting same-sex marriage.

Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. (Universal Declaration of Human Rights, 1948)

The Law Council of Australia has also stated that “Discrimination on arbitrary grounds, including sexual orientation is contrary to Australia’s International Human rights Obligation” providing grounds for the change in law. (Marriage Equality as a Human Right – Amnesty International Australia, 2017)

b. Laws changed

The 1961 Marriage Act was created to ensure that the Australian Commonwealth regulated marriage rather than singular states and territories. It stated that marriage was “the union of a man and a women to the exclusion of all others, voluntarily entered into for life”. It also didn’t legally recognised same-sex couples who had been married overseas. (Neilson, 2012)

However, the 1961 Marriage Act was updated on December 9th, 2017. Via a postal survey, 80% of Australians voiced their views, with 61.6% voting for the law to change and 38.4 voting for same-sex marriage to remain illegal (1800.0 – Australian Marriage Law Postal Survey, 2017). Consequently, the Marriage Act was amended to define marriage as ‘the union of 2 people to the exclusion of all others, voluntarily entered into for life’ and also recognised couples who had married overseas, after a conscience vote. Gender or sex no longer impacted whether two people could marry or not. (Marriage Equality in Australia, n.d.)

Simultaneously, the Australian government had to amend the law to preserve religious freedom of marriage celebrants who opposed these law reforms. Commonwealth-registered marriage celebrants had the choice of being a religious marriage celebrant or not, after the Marriage Act was amended. This meant they could chose to marry those who aligned with their religious beliefs, as many didn’t accept same-sex marriage. This was addressed in section 47 and 47a of the Marriage Amendment Act 2017 (Marriage Equality in Australia, n.d.)

These changes in law were created to reflect societies values. Maximising equality between Australian people, giving same-sex couples an equal right to marry, while also protecting the religious freedom of marriage celebrants who were opposed to marrying same-sex couples.

c. Assess the law to reflect society’s values

The law in Australia is mostly able to reflect society’s values. The postal survey that was held provided an opportunity for the people to share their opinion on the matter. 60.1% of Australia voted change the law and make marriage open to anyone regardless of sex and gender.

Many were pleased with the accomplishment and proud to finally have equality in Australia. Current Australian Prime minister says, “What a day! What a day for love, for equality, for respect. Australia has done it.”. There were some who were unhappy with the result. Opposed to the change was Independent Bob Katter, who claimed, “Gay means beautiful, light, attractive, ethereal … they took the word gay off us and now they are taking the word marriage off us.’

The nation is filled with opposing views and perspectives, therefore, the law will never satisfy everyone. However, the best that the government can do is listen to what a majority of the people want and identify inequalities in their country, and appropriately amend the law. In this way, the Australian Government were successful at reflecting societies views of marriage equality.

Many believe there is still work to be done in the LGBT+ rights movement. “Our victory in the marriage equality campaign was the starting point for something even bigger.” Says Human Rights Law Centre’s director of legal advocacy, Anna Brown. Perhaps, marriage equality was just a step in the direction of achieving equality. Yet the change was necessary to reflect societies values and eliminate inequality in Australia.

References

1. 1800.0 – Australian Marriage Law Postal Survey, 2017. (2017). Retrieved 24 February 2020, from https://www.abs.gov.au/ausstats/[email protected]/mf/1800.0
2. Ambrosino, B. (2017). The Best Christian Argument for Marriage Equality Is That the Bible Got It Wrong. Retrieved 5 March 2020, from https://psmag.com/social-justice/jesus-was-wrong-about-homosexuality
3. Creech, J. What Does the Bible Say About Homosexuality? | Human Rights Campaign. Retrieved 5 March 2020, from https://www.hrc.org/resources/what-does-the-bible-say-about-homosexuality
4. Gilbertson, W., Gilbertson, W., Walker, S., Bell, C., Walker, S., & Walker, S. (2020). Legal Recognition of Same Sex Couples. Retrieved 5 March 2020, from https://www.turnbullhill.com.au/articles/legal-recognition-of-same-sex-couples/
5. Impact on Freedoms. (2020). Retrieved 28 February 2020, from https://www.acl.org.au/impact_on_freedoms
6. Jones, S. (2020). Opinion Piece – Why marriage equality matters | NDARC – National Drug and Alcohol Research Centre. Retrieved 1 March 2020, from https://ndarc.med.unsw.edu.au/blog/opinion-piece-why-marriage-equality-matters
7. Livsey, A., & Ball, A. (2017). Same-sex marriage survey: religious belief matched no vote most closely. Retrieved 28 February 2020, from https://www.theguardian.com/australia-news/datablog/2017/nov/17/same-sex-marriage-survey-religion-drove-the-no-vote
8. Marriage equality as a human right – Amnesty International Australia. (2017). Retrieved 1 March 2020, from https://www.amnesty.org.au/marriage-equality-human-right/
9. Marriage equality | Australian Human Rights Commission. (2018). Retrieved 5 March 2020, from https://www.humanrights.gov.au/our-work/lgbti/projects/marriage-equality
10. Marriage equality in Australia. Retrieved 24 February 2020, from https://www.ag.gov.au/marriageequality
11. Marriage equality: it’s time | Australian Ethical. (2017). Retrieved 5 March 2020, from https://www.australianethical.com.au/blog/marriage-equality-its-time/
12. Neilson, M. (2012). Same-sex marriage – Parliament of Australia. Retrieved 24 February 2020, from https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2011-2012/SameSexMarriage
13. Richardson-self, L. (2015). justifying same sex marriage: a philosophical investigation. London: Rowman and Littlefield International.
14. Universal Declaration of Human Rights. Retrieved 1 March 2020, from https://www.un.org/en/universal-declaration-human-rights/
15. The Origins of Marriage. (2007). Retrieved 3 March 2020, from https://theweek.com/articles/528746/origins-marriage