By Paula Gerber

We no longer stand for ‘white’s only’ institutions, but inAustraliawe still tolerate an institution that is reserved for only heterosexuals, namely the institution of marriage. There is a global trend towards open up the institution of marriage to all couples who wish to wed, regardless of their gender or sexual orientation. Same-sex marriage is now legal in 12 countries around the world, namely:

• Netherlands;
• Belgium;
• Norway;
• Sweden;
• Spain;
• Portugal;
• Iceland;
• Argentina
• Canada;
• South Africa;
• Parts of theUnited States; and
• Parts ofMexico

As can be seen from the above list, same-sex marriage is now legal in countries in every part of the world, except the Asia Pacific. Australia has the opportunity to be a leader in this region by amending the Marriage Act 1961 to provide that marriage is not restricted to just a man marrying a woman. Such an approach would be consistent with the Federal Government’s policy of not discriminating against gays and lesbians. This policy was clearly displayed in 2008, when the Government enacted a suite of reforms to end discrimination in areas such as social security, income tax and family law. It is now time for the Government to redress one of the last bastions of discrimination against same-sex couples, namely equal recognition of same-sex relationships.

The Government has indicated that it supports the legal recognition of same-sex relationships, but that this should be done via a system of registration of domestic partnerships, or perhaps civil unions, but not through allowing same-sex couples to marry. Anything other than marriage would further constitute further discrimination against gays and lesbians. Creating a separate system of relationship recognition for non-heterosexuals would be reminiscent of the discredited ‘separate but equal’ policies of Apartheid South Africa and the Jim Crow laws in the time of a racially segregated United States. Indeed, the Ontario Supreme Court has observed that “any ‘alternative’ to marriage… simply offers the insult of formal equivalency without the promise of substantive equality.” (Halpern v Canada [2002] 60 O.R. (3d) 321). Creating a ‘marriage-like’ system of relationship recognition for same-sex couples signals to society that such relationships are not equal to heterosexual relationships and do not deserve the status and respect that comes with marriage.

Renowned scholar William Eskridge, asserts that `marriage is an institution that is constructed, not discovered, by societies. The social construction of marriage in any given society is fluid and mobile’. Recent surveys suggest that Australian society is ready to see marriage evolve to reflect modern attitudes and values. Thus, a 2010 Galaxy Poll (www.australianmarriageequality.com/Galaxy201010.pdf) found that same-sex marriage is supported by:

•  62% of all Australians
• 72% of Australians with young children
• 74% of Labor voters and 48% of Coalition voters
• 78% of Australians believe there should be a conscience vote on the issue.

When the Labor Party revisits its policy on recognition of same-sex relationships at its national conference in December 2011, it should reach a decision that respects the human right of ALL persons to marry. It should commit to repealing the amendments to the Marriage Act enacted by the Howard Government restricting marriage to being between only a man and a woman.

For a more in-depth analysis of the same-sex marriage debate and other legal issues relating to gays and lesbians, see the recently released book Paula Gerber, & Adiva Sifris, Current Trends in the Regulation of  Same-Sex Relationships (2010) Federation Press.