Fast-tracking teachers into the classroom; putting experts with little training in front of classes; creating a debt ceiling (Kevin Rudd); and then doubling it (Joe Hockey) when there’s no need for one at all: these are all imported ideas. As is state-based marriage. But is it right for Australian conditions?
In the US it makes sense. Ordinarily the state and federal governments agree to respect each other’s legislation – the so called “full faith and credit” rule – on a wide range of issues, including marriage. Generally speaking, same sex marriages contracted in one state should be automatically recognised by all states. Winning marriage equality in one state would have won marriage equality nationwide – if Washington hadn’t enacted the Defense of Marriage Act (DOMA).
The so-called “Defense of Marriage Act,” or DOMA, was passed in 1996 by Congress and signed into law by President Bill Clinton. “Section Three,” prevented the federal government from recognizing any marriages between gay or lesbian couples for the purpose of federal laws or programs, even if those couples were considered legally married by their home state. The other significant part of DOMA makes it so that individual states do not legally have to acknowledge the relationships of gay and lesbian couples who were married in another state. [GLAAD]
The Supreme Court has since struck down Section Three – committed same-sex couples who are legally married in their own states can now receive federal protections and benefits, like Social Security, veterans’ benefits, health insurance and retirement savings.
But the part that says states don’t have to recognise other states same-sex marriages remains in force. DOMA thus forces activists to try to win marriage state by state.
None of which applies in Australia: the states long since handed jurisdiction over marriage to Canberra.
Nevertheless, marriage equality advocates here are campaigning for state-based same-sex marriages. They claim they can win this because, by changing the definition of marriage in the Marriage Act to restrict marriage to one man one woman, John Howard effectively ceded Commonwealth jurisdiction over same sex marriage back to the states.
I’ve argued before that I think this particular notion is a bit too clever for its own good, and most importantly, sacrifices the goal of equality for the sentimental ‘win’ of a limited form of ‘marriage’.
Now the ACT – not a state, but a territory – passed it’s own same-sex marriage bill yesterday, and the NSW Cross Party Marriage Equality Working Group is gearing up to introduce a bill into their parliament next week. Tasmania, despite the presence of the formidable and indefatigable Rodney Croome, is still hesitating. Other states have other bills in various stages of preparation. A somewhat shaky bandwagon is rolling.
The Abbott government is implacably opposed to equal marriage. Commonwealth Attorney General George Brandis therefore wants the High Court to declare these state marriage bills invalid as quickly as possible. He claims that they are in conflict with, and hence overridden by, the Commonwealth Marriage Act, because the Act ‘covers the ground’. He argues that it covers ALL marriages.
To prove that, he will have to show to the judges satisfaction that, notwithstanding the wording of the Act, it covers all types of marriage. That there is, in essence, no difference between same-sex marriage and opposite sex marriage. That they are essentially one and the same thing. Or to put it simply – equal.
On the other hand, if state-based marriage is to stand, the ACT and NSW will have to convince the judges that same sex marriages are not the same, that they are so utterly different to opposite sex marriages that the Commonwealth law doesn’t cover them. That they are not equivalent. Not equal**.
My, my, I tried to hold you back but you were stronger
Oh yeah, and now it seems my only chance is giving up the fight
And how could I ever refuse
I feel like I win when I lose [ABBA]
This smacks rather too much of one of those cunning stunts that are too ingenious for their own good. It’s just too cute. We’ve ended up a scenario where the two sides end up arguing the opposite of what they believe. For marriage equality to win, it has to lose. Does anyone else feel this is all a bit Alice Through The Looking Glass?
We seem to be losing sight of the ends and getting caught up in the means. Certain events yesterday had all the hallmarks of a stunt, from the ‘spontaneous’ a capella harmonies (can we please find a better tune for next time?), to the marriage proposal between two guys who are already married – in Canada – staged for the news cameras.
All of which was another import, incidentally, this time from New Zealand. Who did it better, too.
We seem to have lost sight of the point of the exercise – equality – and are now just desperately chasing something, anything, that we can call marriage.
The only way we will get equal marriage is when a majority of the federal parliament votes for it. That will never happen with a conscience vote. We need all the main parties – including the Liberals – to support marriage equality en bloc. Not a succession of state-by-state battles.
We have expended a lot of effort on fighting for marriage, and so far, we have failed. In the meantime, we have many other problems and inequalities we desperately need to address, some of which would be less problematic if we could marry. For example, in superannuation and age care.
We have to stop being so one-eyed. We have to walk and chew gum at the same time. Yes, marriage is an essential component of winning our equality, but it has to be argued for and won in that context.
As a very practical woman of my acquaintance once explained to me why she planned to marry the man she’d been with for four years and with whom she already had three children, “Not for the wedding, darling, though that will be lovely and fun and everything, make Mum and Dad happy and all that. For the presents.” Exactly.
**Even if the ACT wins Same-Sex Marriages will not be equal. SSM couples will only be ‘married’ when in the ACT, and they won’t be able to benefit from legislation covering married couples, because they won’t be married couples, they’ll be SSM couples.