Same sex marriage; what’s at stake

History Revisited

The hullabaloo swirling around the plebiscite on same sex marriage and the dire consequences envisaged by some if it becomes law, is reminiscent of the overwrought situation in Australia in 1984 when the Federal Sex Discrimination Act was being debated in Parliament.

By 1984, three countries with which Australia identifies most closely, culturally and historically, had all implemented legislation at the national level to prohibit discrimination based on gender and other attributes – the USA in 1964; the UK in 1975 and Canada in 1977. For the most part this legislation had been long accepted in those countries and regarded as positive and beneficial, causing no significant upheaval or social dislocation.

Yet the prospect of passing Commonwealth legislation in Australia to protect the rights of women in the workplace and in other areas of public life evoked an extraordinarily heated response amongst some sections of the public and representatives in Parliament.

One angry senator declared that the legislation would change nothing as “men are by nature more likely to be leaders, providers and protectors”. A member of the House of Representatives considered that the legislation will “be destructive of fundamental rights and freedoms”.

Today, hardly anyone questions the principles underlying the Sex Discrimination Actor the need for it and the main criticisms are that it does not go far enough.

As the plebiscite gets underway, Australia again finds itself following the lead vis a vis the main English-speaking democratic countries with the USA, UK  New Zealand and Canada (not to mention another 20 countries) all having recognised same sex marriage and Australia facing a debate on the issue which sometimes borders on the vitriolic.

The Real Issue

The real and probably only relevant matter for debate is a philosophical one – between those who, mostly on religious grounds, believe that marriage in its essence can only be between a man and a woman, and those who believe that the notion must be broad enough to encompass a relationship between two adults of the same gender who love each other. And while every person is entitled to have his or her say as to what constitutes a marriage, there is simply no basis for suggesting that legislating for same sex marriage will restrict religious freedoms or will undermine basic social mores and family cohesion. There is no evidence that these effects have occurred in countries where same sex marriage is legally recognised, nor should there be any harm in Australia to religious institutions and other groups in a country where long-term gay and lesbian partnerships are unremarkable and same sex partners can parent children.

The claim by gays and lesbians to be afforded the equal dignity and the legal benefits which flow from marriage is the culmination of a long struggle against centuries of crude prejudice and discrimination. Until the middle of the twentieth century in almost all Western countries, homosexuality was classified as a mental illness; sexual relations were vilified and often subject to criminal penalties; and homosexuals would not be hired or would be dismissed if their sexual orientation became known.

The Persuasive Case for Same Sex Marriage

We at Symmetra believe that the argument in favour of legitimating same sex marriage is cogent and compelling. The rationale for this has been aptly set out in the ruling of the US Supreme Court in Obergefell v. Hodges considering whether same sex marriage is a right guaranteed under the Constitution, where the majority held that it is. While the reasoning was against the backdrop of the US Constitution, many of the observations are pertinent to Australia.

Writing for the majority, Justice Kennedy noted that: “…the centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia across civilizations.”

He then listed four assertions which weigh in favour of same sex marriage:

  1. The right to personal choice regarding marriage is inherent in the concept of individual autonomy. The decision whether and whom to marry is one of life’s momentous acts of self-definition
  2. The right to marry is fundamental because it supports a two-person union unlike any other in its importance to committed individuals
  3. Where children are being raised by a same sex couples, the right to marry safeguards the interests of these children and their families
  4. Just as couples in a marriage vow to support each other so does society confer symbolic recognition and material benefits upon married couples. Some (but not all) of these benefits include taxation; inheritance and property rights; spousal privilege in the law of evidence; medical decision making; adoption and so on.

Conclusion

Most of those who intend voting no accept that gay and lesbian unions are now a fixed part of our social fabric but they say that these unions should be granted recognition under a status other than marriage. But the question is why should gays and lesbians be consigned to indefinite inferiority by being denied the opportunity to commit themselves to each other in the ultimate way. There is, we suggest, no morally justifiable reason. We believe that fairness and Australia’s inherent sense of social equality will win the day for same sex marriage.

 

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