I am taking time out from my usual mental health awareness posts, to discuss the proposed legislation changes in Australia in regards to marriage. This is a topic about which I am extremely passionate, and I believe that we need to consider some of the facts regarding this issue. For the purposes of this discussion, I have predominantly referred to Western Australian state law, however these same scenarios and concepts could easily be applied to any state in the Commonwealth.
There are four purposes and intents of legislation.
These are – establishing standards, maintaining order, resolving disputes, and protection of rights.
I would argue that the legislation change in relation to marriage pertains to the last two; resolving complaints and protecting rights.
The argument has been made that gay couples already have all the ‘rights’ associated with marriage, under the de facto status. Marriage and de facto are not the same. It might not impact much for a same sex couple in day to day life, but in any event where the relationship status impacts the outcome (such as a separation, or death of one spouse), a de facto couple needs to prove their relationship status. Under Western Australian law, the following factors are taken into account when ‘deciding’ the validity of a de facto relationship:
– the length of the relationship
– whether you live together and for how long
– whether there is a sexual relationship
– the financial dependency between the couple
– the ownership of property
– how committed you are to shared life
– whether you care for or support children
– the public aspects of your relationship
A married couple, on the other hand, does not need to do this. They can simply produce a certificate which verifies their relationship status.
The consequence of this, is that a Court could decide that the de facto couple do not meet the requirements and state that they are not de facto, stripping them of any rights associated with this status. There is no such risk for a married couple.
One of the concerns raised in regards to marriage equality has been around surrogacy and the possible increase of children being removed from biological parents.
In WA the Surrogacy Act 2008, states that an eligible couple have to be of the opposite sex, AND there has to be a medical reason that is preventing the woman going through with a pregnancy. This piece of legislation is entirely separate to legislation related to marriage, and any legislation change to the institute of marriage, does not in any way impact the legislation regarding surrogacy. That is separate debate for a separate time.
I agree that any changes to the Surrogacy Act in any state need to be carefully considered and discussed prior to the legislation being changed. But that is a completely separate issue and is not at all associated with any changes made to legislation pertaining to marriage.
Another issue regarding children that has been made, is that marriage is an institute, created for the purpose of creating a family – for procreation. Therefore, gay marriage does not fit this, given that gay couples cannot reproduce without aid. However, by this logic, any couple that enters into marriage without the intention or ability of reproducing, also does not fit – my marriage included. Is my heterosexual marriage now invalid? Of course not. Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. It is not dependant on any requirement that children become part of that union, in fact, even children are excluded from the union by definition. Marriage is a relationship status under the law, between two people only, and the exclusion of individuals to this status based on sexual orientation, is discriminatory.
Some religious groups have raised the concern that legalising gay marriage will take marriage as a religious concept, away from the church.
However marriage has already been separated from the church. Non-religious couples are able to opt to use a celebrant, and have no religious aspects included in their marriage ceremony. Couples are able to attend the registry office and legally become married without any involvement or association with the church. Introducing marriage equality does not impact this pre-existing situation at all. Further to this, Section 116 of the Australian Constitution specifies that the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. Therefore, not only is marriage, as a legal union, already separated from the church, it is unconstitutional for religious reasons to be used to impose specific requirements in legislation.
Further to this, I would like to draw attention to the lack of reference to the issue of homosexuality in the New Testament. There are verses that may relate to the issue; however, have also been interpreted as referring to prostitution and pederasty, rather than a loving relationship between two people. However, if you are looking for ‘love’? You’ll find it referenced over 250 times. Given this, even if religious observance was able to be imposed through legislation, it would be difficult to suggest that Christianity (which is grounded in Jesus’ teachings) does, without any chance of doubt, have an opposition.
Some wedding vendors are voicing a concern that their ‘freedom’ and ‘rights’ will be impacted, if marriage equality is introduced, because they will be ‘forced’, against their conscience, to provide services and products to gay couples. In regards to the ‘rights’ and ‘freedoms’ of businesses to discriminate against an individual based on sexual orientation, this is already outlawed. The Equal Opportunity Act 1984 WA states that businesses are not allowed to discriminate, refuse service or provision of products, on the grounds of race, religion, sexual orientation etc. You can already be taken to Court if you are found to be refusing service or provide products to customers based on sexual orientation.
The core function of a business is to produce a profit in exchange for a product or service. That is your right as a business owner. Being able to discriminate against the customers or clients that approach your business is not your right. And is already illegal. Your rights are not being impinged in any way, and they certainly aren’t changing or decreasing if we legislate in favour of marriage equality.
So I ask you, if you are planning to vote ‘No’… what are you actually against?
The platform for debate and campaigning that this plebiscite is facilitating is enormous. Let’s think carefully about what we share, post, and preach. It is going to become, if it hasn’t already, an extremely difficult time for some, already vulnerable, members of the LGBTIQ community and their families. For them, this is not just a ‘debate’, it is a fight to justify their validity and value in the world. And the outcome is a statement about their lives, and their future.
Have an opinion if you feel it necessary – but make it an educated one.