The fight for gay marriage in Australia

While over the weekend New York’s GLBT community celebrated its recent gay marriage bill, ten thousand miles to the south a new marriage fight is only just beginning.  Gay marriage has long been a political football in the United States, but for most of that time it has been a largely dead issue in Australia. In 2004, John Howard’s conservative Liberal party passed a bill banning gay marriage with the full support of the then-opposition Labor party, and when Labor’s Kevin Rudd took power in 2007, both gay marriage and civil unions remained off the table politically.  Sadly, his successor Julia Gillard has been no different.

Recently however there have been signs of a grassroots opposition to this Federal political consensus. Over the weekend, the annual West Australian Labor conference endorsed gay marriage, becoming the third such state Labor party to do so recently following South Australia and Queensland. The issue will become even more pressing for Prime Minister Gillard, in a debate at Labor’s national party conference in Sydney in December. Gay and lesbian activists plan to rally at the conference, placing even greater pressure on the embattled centre-Left PM to attempt to pass a national law.

The gay marriage debate in Australia is quite unlike that of the U.S.  Australia is unlikely to go down the “state’s rights” path of a patchwork of marriages rights varying from state to state. Marriage is considered a Federal law in Australia, which leaves the fight for same-sex marriage something of an all or nothing proposition (though some activists have suggested the High Court might allow a loophole in the event a state did pass a same-sex marriage).

Indeed the terms of the debate are significantly different, with GLBT Australians already possessing many of the rights that American activists are fighting for in pursuing. The strong recognition of de-facto (“common law marriages”) relationships in Australia for both heterosexual and homosexual couples ensures most basic rights are covered, with a 2009 bill passed by the Rudd government guaranteeing Federal recognition of same-sex relationships for Centrelink and Family Assistance social services, tax returns, and immigration.

However, the Australian government’s opposition to same-sex marriage has seen the Gillard government impede the ability of Australian citizens to have same-sex marriages outside of Australia by refusing to issue Certificates of No Impediment declaring them to be unmarried. This is a dubiously legal position, since as Senior Lecturer in Law at the ANU Wayne Morgan told Crikey:

There is nothing in Australian law that would prevent a Certificate of No Impediment to Marriage (being issued) to a same-sex couple marrying under the laws of another country. This is an internationally accepted document that has nothing to do with the validity of the marriage back in the couple’s own country.

This seeks, I think, to evade the issue of Australians with legal marriages in other countries returning home to find a lack of rights by preventing the marriages in the first place. Yet this is clearly an unworkable long term solution to the ever increasing number of overseas same-sex marriages. Tasmania in 2010 quite sensibly began recognising same-sex couples married overseas as state civil partnerships.

Those issues aside, the crux of the Australian debate therefore, is less a rights issue than that of symbolic equality. In this case, civil unions too seem somewhat redundant, because they reinforce same-sex relationships’ symbolic inequality. The Australian Capital Territory has been the only region to significantly push for civil unions. The ACT has long overwhelmingly had the numbers for same-sex civil unions, but the Ministerial veto of the Federal government exercised over territories has prevented civil unions becoming law.

As we move towards really opening up the debate further, I hope Labor remembers that great Australian quality – fairness. Australians have long considered opportunity and egalitarianism one of our defining traits as a nation, with each one of us guaranteed not the right to happiness like Americans but the right to “a fair go.” Recognition of the importance and meaningfulness of gay and lesbian relationships should be no exception to this.  Julia Gillard has neither the narrowmindedness of John Howard nor the religious beliefs of Kevin Rudd to justify her continued opposition to same-sex marriage. One suspects that this opposition lies less in personal opinion about gay rights than the dominant “common sense” in Canberra.

But numerous surveys in Australia have shown a majority support for gay marriage for several years. a recent survey by Liberal MP Malcolm Turnbull found 72% of his Sydney constituency in favour of gay marriage. Another recent poll from Galaxy found 75% agreed it was inevitable that gay marriage would become legal in Australia. Though the real numbers are likely to be lower than that across the country, there is nevertheless a fairly clear majority of support in the Australian community.

And with the Murdoch press baying for blood over the carbon tax and Tony Abbott just recently sneaking ahead of her in preferred leader polling, Gillard has nothing to lose and everything to gain from pushing for gay marriage. And so have we.