The same-sex marriage implications for Australia from the US election and abroad
By Paula Gerber
The main stories coming out of the recent elections in the United States have of course been that Barack Obama won a second term, and which party controls the House and the Senate.
However, the election produced a number of other interesting outcomes, not least of which is the overwhelming support for marriage equality in the four states in which this issue was on the ballot paper. The states of Maine, Maryland and Washington asked voters whether same-sex marriage should be legalised, and in each case a majority voted in favour of marriage equality. This is the first time that same-sex marriage has been endorsed by popular vote.
In Minnesota, voters were presented with a proposal to amend the state constitution to define marriage as being only between a man and a woman. That initiative was defeated. Thus, at the recent election, every jurisdiction in the United States that considered same-sex marriage came down in favour of marriage equality.
And we should not ignore the fact that Barack Obama was given another term as President after pledging his support for marriage equality, while Mitt Romney, who opposes gay marriage, was soundly defeated.
When these developments in the United States are considered in the context of changes happening in other countries, as well as within Australia, there is a sense that the momentum for change is turning into an unstoppable force.
For example, Spain’s Constitutional Court has just held that the gay marriage laws enacted in 2005, were constitutionally valid: A decision welcomed by the 22,000 gay couples who were married in Spain in the last seven years.
In France, the government last week approved a bill that will allow same-sex couples to marry and adopt children, with the French parliament due to vote on it by the middle of next year.
The Scottish government announced in July that it will introduce legislation to legalise same-sex marriage, and the British Prime Minister, David Cameron has vowed to introduce legislation opening up the institution of marriage to same-sex couples, before the next general election.
Meanwhile, in New Zealand, a bill to amend the Marriage Act to specifically allow same-sex couples to marry passed its first reading in August, with 80 votes in favour, 40 votes against, and one abstention. The Prime Minister, John Key supports the legislation. It has been referred to a Select Committee which received over 20,000 public submissions, and is due to report back to Parliament by February 2013 regarding whether or not the Bill should be passed.
Closer to home, the recent elections in the ACT saw the Greens give their support to Labor to form government subject to a number of conditions, including that the ACT government legislate for marriage equality. Of course, not being a state, any marriage law in the ACT can be overturned by federal parliament, in addition to being challenged in the High Court.
New South Wales may be one step closer to legalising same-sex marriage at a state level with the election last month of independent Alex Greenwich into the Lower House, in a by-election in the seat of Sydney. Greenwich, the former national convener of Australian Marriage Equality, has indicated that he will introduce a bill for same-sex marriage.
Notwithstanding this progress on multiple fronts, we need to remember that the past few months have also seen the defeat of bills to legalise same-sex marriage at the federal level as well as in the Tasmanian Upper House. However, the recent developments abroad, as well as in the ACT, suggest that the tide may be turning.
Legislating for same-sex marriage is supported by the Australian Human Rights Commission which in September issued a position paper, stating that “the fundamental human rights principle of equality means that civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity”.
The Commission rejects the idea that it is sufficient to provide gay couples with an inferior form of relationship recognition such as civil partnerships, noting that: “in the absence of a right to civil marriage for same-sex couples, a civil union scheme would continue to reinforce the different value placed on relationships between opposite-sex and same-sex couples”. This reflects the view that providing gay couples with only civil unions is tantamount to the discredited system of “separate but equal” encapsulated in the Jim Crow racial segregation laws of the United States. Or, as Justice Lafome of the Ontario Superior Court said, “any ‘alternative’ to marriage…simply offers the insult of formal equivalency without the promise of substantive equality”.
The rate at which countries and states are legislating for marriage equality shows no sign of slowing down anytime soon. If anything, the election results in the United States are likely to motivate advocates of same-sex marriage to increase their efforts, which may stimulate a flurry of reforms across many jurisdictions. Such moves would be in harmony with the fundamental human rights principles of equality and non-discrimination as articulated by the Australian Human Rights Commission, and consistent with the global trend in favour of marriage equality.