Answering the hard questions: what are the advantages of state same-sex marriage laws?

Salamanca Market

Luke Gahan is right to urge more debate within the LGBTI community about state-based same-sex marriage laws. But his jaundiced views of such laws ignores their immense value.

First, let’s explore some of Luke’s concerns.

1. These bills only provide for same-sex couples. A state same-sex marriage would not be a marriage. You would get a different certificate, from a different government, under a different Act. Is a state same-sex marriage any different to a civil union?

Up until 1961, marriages in Australia were performed under eight different state and territory laws, but no-one thought of those marriages as less valuable.

Today, Australian marriages are performed under an Act that only allows straight people to marry but no-one declares that these marriage are not real marriages.

In the US all same-sex marriages are performed under state laws that have no recognition federally, yet no-one deems these marriages to be second-rate.

To question the legitimacy of Australian state same-sex marriage laws but ignore the fact that the same questions could be asked about the laws that govern other marriages is at best a double standard and at worst homophobia.

Rather than looking at this issue through the lens of statutes and jurisdictions, we need to look at through the eyes of those who seek the option to marry.

For most people a marriage is real where legally-recognised, spoken vows of lifelong commitment provide access to key legal rights and responsibilities, and this is called “marriage”.

They do not care what government has authorised the celebrant or issued the certificate.

For Luke to ask if a state same-sex marriage is any different to a civil union shows he doesn’t really understand what most people understand a marriage to be.

In the eyes of the law and in the eyes of the participants, a marriage performed under a State Act will be as real as any other marriage.

2. Those already married abroad could not be legally recognised either at state or federal level. The couple would have to re-marry. If a couple married abroad and later wanted a divorce in Australia, they would be prevented from applying under any new state law because their marriage would not be recognised in the first place. Ironically this could also mean that you could marry one person in Canada and a second person in Victoria!

It is true that Australian states cannot recognise overseas same-sex marriages as marriages (they are recognised as civil unions in some states). But this is a problem with the discriminatory provisions of the federal Marriage Act, not with state-based laws.

The problem of overseas recognition may well open up the theoretical possibility that someone could be married to different people in different jurisdictions. But this can happen now. There’s nothing stopping an Australian man marrying another man in Canada and then a woman in Australia. But again, this is problem with Australia’s discriminatory marriage laws, not with Canada’s equality-based laws.

The jigsaw of same-sex marriage recognition around the world creates any number of theoretical absurdities, but this is an argument for extending equality, not retreating from it.

3. The shift towards ‘state’ same-sex marriage is driving conservatives to ‘finish the job that John Howard began in 2004’ and unambiguously block any possibility of same-sex marriage in Australia. Marriage equality advocates are aware of this prospect. And it was for this reason we decided not to pursue this path. Because a full same-sex marriage ban federally will be much worse than we can imagine.

In 2006 then Liberal Senator Guy Barnett wrote that the possibility of a state same-sex marriage law meant the Marriage Act should be “strengthened” (something he now denies, and something which definitely did not stop marriage equality advocates pursuing such laws). I’m told there are even Liberals who want to go further and entrench a ban on same-sex marriage in the Constitution (in imitation of the policy of the US Republicans), but if they exist they are yet to go public.

The possibility of these sinister fantasies coming true gets slimmer and slimmer every time another conservative comes out in support of marriage equality. Barnett et al would face not just indignant progressives, but an indignant Jeff Kennet, Barry O’Farrell and Janet Albrechtsen.

But if I’m wrong, what’s the worst that could happen? Tony Abbott nullifies legal state marriages? That would be awful. But as in California when same-sex marriages were stopped, it would rally the nation to the cause like nothing before.

4. There is also the issue of forced trans divorce

It is possible (although by no means certain) that a couple where one partner has gender re-assignment might be forced to divorce under one marriage law and remarry under another. But again, this is not a reason to oppose a state-based law. At least such a law gives those transgender couples who currently can’t marry the opportunity to tie the knot. I know many transgender Australians in same-sex relationships who value this option very highly and would jump at the chance to marry under a state law.

5. Following the failure of same-sex marriage in Federal Parliament this year, some marriage equality activists have shifted their focus towards getting the states to pass same-sex marriage legislation. The plan backfired when a Greens bill failed to pass the independent packed Legislative Council in Tasmania.

This is simply untrue. State same-sex marriage laws have been on the table in state parliaments for as long as marriage equality has been a public issue in Australia (i.e. since 2004/5). The Tasmanian Bill didn’t “backfire”. It passed the Lower House (an Australian first) and was only narrowly defeated in the state’s notoriously conservative Upper House. It may be hard for Luke to acknowledge there is long term and widespread support for state same-sex marriage laws, but it’s a fact.

6. Marriage equality advocates are aware of these issues but are reluctant to discuss them openly in the gay media

Again, a blatant misrepresentation. I for one have written about concerns like Luke’s in a number of different LGBTI publications including this one in September.


But worse than Luke Gahan’s misrepresentations about state same-sex marriage laws is his failure to acknowledge their immense value.

1. Bringing marriage equality closer to the people

Debate on state law reform is uniquely able to galvanise grass roots support. In Tasmania the movement for state reform has engaged thousands of people who have not previously been involved in the marriage equality movement because they felt federal reform was too far off or beyond their influence. The next debate in state parliament is months away but still there are marriage equality BBQs, protests, forums and rallies every couple of weeks. This is because state-level debate engages the local media and local community networks in the way a national debate does not.

2. Breaking the seal on the national debate

When couples begin to marry under a state or territory same-sex marriage law the debate in Australia will shift dramatically and forever. People will see that the sky doesn’t fall in and that heterosexual marriages don’t suddenly fall apart. They will see first-hand what this reform is really all about: love, joy, commitment, family.

As a result it will be much harder for other states and the federal government to resist calls for reform. At first they may respond by recognising same-sex marriages in states that allow such marriages (in just the same way civil unions in one state have been recognised in other states and in federal law). If this happens the anomalies Luke uses to condemn state laws will mostly evaporate.

But pretty soon the clamour for reform will grow too loud for the feds to resist. It’s no coincidence that in every federal nation where marriage equality has moved forward (Canada, the US, Argentina, Mexico, Brazil), reform happened first at a state or provincial level. Why should Australia be any different?

No-one is suggesting that we should stop pushing directly for federal reform. Groups like AME are lobbying and advocating at this level as much as ever. I’m simply saying state same-sex marriage laws can have an important role to play in achieving reform nationally.

3. Allowing couples to marry

Critics of state same-sex marriage laws like Luke Gahan focus on jurisdictional anomalies, legal gaps, theoretical possibilities and abstract principles.

What they never focus on is the simple, heart-felt aspiration of many same-sex partners to have the option to legally marry.

This aspiration is at the heart of the marriage equality movement, and it is the measure of the success or failure of any attempt at reform.

State same-sex marriage laws may not yet provide coverage beyond a state border. They may not yet be recognised in federal law. They may not yet recognise overseas same-sex marriages as marriages.

But what they do do is allow loving couples to officially declare their lifelong and exclusive love and commitment before family and friends and thereby enter into a legal marriage.

If this is what a marriage law is meant to do, and I believe it is, state same-sex marriage laws fulfill their purpose perfectly.

4. Giving hope

For a few hours one evening at the beginning of September it seemed as if the Tasmanian Upper House might pass the Same-Sex Marriage Bill.

Suddenly, equality in marriage for me and my friends and colleagues went from being a theoretical possibility and a much-talked about dream, to being almost real.

I cannot do justice to how that felt. Coming so close was far more profound and moving than I expected. It was like a light was switched on after years of walking in darkness. Sure, it was doubly disheartening when that light was switched off again and the darkness returned. But having glimpsed a world in which I could legally marry I am now more determined than ever to make that world real.

The hope I felt then is one of my most precious possessions and it was bestowed by a state Same-Sex Marriage Bill. No amount of fear-mongering or nay-saying will ever turn me away from the source of such hope, or obstruct me from doing all I can to bestow it on others.