Opening up Marriage to Same-sex Couples

By Paula Gerber

On 16th November 2010, I had a bit of a chat with Jon Faine on 774 ABC radio about why same-sex couples should be allowed to marry. While there are numerous justifications for ending the ban on same-sex marriage, I focused on the following arguments:

1. Same-sex marriage is in the best interests of children

Article 3 of the UN Convention on the Rights of the Child, which Australia has ratified, provides that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

It is well documented that same –sex couples are having children in increasing numbers. Indeed, this has been described as a ‘gayby boom’! It is therefore necessary to consider whether denying same-sex parents the right to marry is in the best interests of their children, as required by Article 3 of the Convention on the Rights of the Child. Children whose same-sex parents are denied the recognition and support that comes with marriage, may suffer psychological harm as a result of this prohibition on their parents marrying. This is because when the state sanctions discrimination, many in society believe that that gives them license to also discriminate. As long as governments treat same-sex couples differently than opposite sex couples e.g. by prohibiting them from marrying, there will be members of society who feel justified in stigmatising and marginalising the children of these couples. Applying the best interests of the child standard leads to the inevitable conclusion that marriage should be open to same-sex couples.

2. Marriage is a socially constructed institution

The answer to the question ‘what constitutes marriage?’ is something that varies according to time and place. In the not too distant past, inter-racial and inter-faith marriages were prohibited in many parts of the world. It is therefore not valid to suggest that same-sex marriage should not be allowed on that basis that marriage has traditionally been between a man and a woman. The fact of the matter is that the institution of marriage has already changed significantly from its first incarnation, and will continue to do so.

3. Legalising same-sex marriage is a global trend, and Australia is being left behind

There are now ten countries around the world where same-sex marriage is legal (Netherlands, Belgium, Portugal, Spain, Canada, South Africa, Argentina, Iceland, Norway, Sweden) as well as another two countries where it is permitted in certain states or cities (USA and Mexico). This is significant for two reasons. First, in none of the countries where same-sex marriage is legal has the sky fallen down! Netherlands has had same-sex marriage for a decade and there is not perceivable negative impact on the institution of marriage. Second, countries are changing their laws to legalise same-sex marriage at a rapid rate. Australia risks damaging its international reputation as a leader in the field of human rights.  We should be at the forefront of the movement for marriage equality, rather than being among the countries that continue to discriminate against same-sex couples.

4. Australia is a secular state with clear separation of church and state.

Most opposition to same-sex marriage tends to be informed by religious beliefs. While Australia must recognise religious freedom, it should not allow it to dictate government policy. In Australia marriage is a civil institution, albeit one that for many people is deeply connected to their faith. Same-sex marriage can be legalized without impinging on religious freedoms, by providing that no religious officer is required to officiate a same-sex marriage if it is against their religious beliefs. In this way, same-sex couples can be married by, for example, civil celebrants, without imposing any obligation on religious bodies to perform such ceremonies.

The above arguments for same-sex marriage, and numerous others are elaborated upon in the forthcoming book Current Trends in the Regulation of Same-sex Families edited by Paula Gerber & Adiva Sifris and to be published later this year by Federation Press.

Dr Paula Gerber is a Deputy Director of the Castan Centre for Human Rights Law,  Law Faculty, Monash University.

One response to “Opening up Marriage to Same-sex Couples”

  1. Does Australia truly have “international reputation as a leader in the field of human rights”? Sadly, I suspect this particular line of shaming no longer holds water. (Or maybe if we believe we have such a reputation, that’s all that matters?) Perhaps by legalising same-sex marriage we could begin to regain our international reputation …

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