Time to ask the hard questions: the problem with state same-sex marriage


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When – and where – is a marriage, not a marriage?

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.

The party has now turned to Victoria, tabling a bill in the Victorian Legislative Council. It’s unlikely to be discussed in the current parliament and will probably sit undiscussed for months if not years.

But it is not just in Parliament where a discussion is needed – LGBTI Victorians must have their own discussion, and be prepared to ask the hard questions, delving into the many troubling issues the Greens state marriage bills raise.

I have always believed that politics should be up front and honest. LGBTI rights advocates do not need to add to the abundance of rhetoric and ‘white-lies’ coming from Canberra and Spring Street. Our community deserves to be fully informed and our community lobby groups owe it to us to be completely open and transparent when it comes to the issues they are campaigning for.

There are a number of issues with the Greens state same-sex marriage bill, indeed,  with the issue of state marriage in general. Most marriage equality advocates are aware of these issues but are reluctant to discuss them openly in the gay media. It is time for us to ask whether this is where we want our lobbyists to go.

The first question to ask is whether state marriage is really a step towards equality? For the bill to be constitutionally viable it cannot allow opposite-sex marriages, so these bills only provide marriage for ‘same-sex’ couples to the exclusion of all others.

If you were to have one of these state marriages, it would be a ‘same-sex marriage’ not a ‘marriage’. You would still not be getting the same ‘marriage’ as your straight friends and family. You would get a different certificate, from a different government, under a different Act. While on the surface this does not seem like much of an issue, it does require us to ask, “Is a state same-sex marriage any different to a civil union?” Would we still be “separate but equal”?

Another problem stems from the increasing number of same-sex couples getting married abroad. Like many of you I was pleased to hear that South Australian state Minister Ian Hunter MP recently married his partner in Spain. Unfortunately even if South Australia passes a state same-sex marriage law, it would probably not recognise Minister Hunter’s Spanish marriage!

The reason is simple. Section 88EA of The Marriage Amendment Act (2004) states that unions solemnised in a foreign country between two people of the same-sex ‘must not be recognised as marriage in Australia’.

Because federal marriage law overrides state laws, even if same-sex marriage became legal in a state, those already married abroad could not be legally recognised either at state or federal level. The couple would have to re-marry under  state law to be ‘legally’ recognised in their state.

This also means 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!

There is also the issue of forced Trans divorce, an issue that same-sex marriage advocates often avoid (like any good politician).

Imagine that the Greens Victorian marriage bill is passed. Jane and Laura (all persons fictitious) get married under the new law and have a huge celebration with all the family and friends. Several years later Jane transitions and become Justin.

Unfortunately the state marriage law under which they married applies to same-sex couples to the exclusion of all others. A huge question mark suddenly appears over the legality of Jane and Justin’s marriage. What now? Will they need to re-marry federally? What can they do?

It is not clear how this issue will go if it ever went before a court. Regardless, it is an issue that needs to be thought through before we rush into state same-sex marriage, blinded by over-eagerness. At the very least it is an issue that needs to be brought to the attention of our LGBTI family.

Last week I attended a meeting where this very issue was brought up. It was explained: ‘we can’t legislate for every minority in our LGBTI community’. Maybe we can’t, but we can certainly do our best to make sure these issues are discussed and given the time that they deserve. After all, we need to look out for all of our LGBTI family equally and never be too scared to face the tough questions.

What has not been made clear within the ‘marriage equality’ campaign up to now is that the marriage amendment of 2004 did not ‘ban’ same-sex marriage – it simply defined marriage as that between a male and female, and banned the legal recognition of overseas same-sex marriages. Because of this a loophole may have been opened and state same-sex marriage suddenly became a possibility.

However, the word on Capitol Hill is that if a Liberal/National government is elected in 2013/14, they will introduce another marriage amendment with the aid of Katter’s Australia Party. 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. We have known about it as long as we have known about the possibility of state marriage. 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.

It will put our marriage equality campaign back to before it began. State marriages would be impossible, and if a state marriage law had already been passed, any one married under it would immediately cease to be married – at least in Australia.

Some of you may be thinking: ‘we should not avoid something just because we fear retaliation’. This was my belief in 2004 when married same-sex couples returned from Canada and went to the family court to have their marriages recognised. We knew it could push Howard to amend the marriage act. But 2004 was a very different situation – we had nothing to lose and lots to gain, so we decided to go for it. Our community was also fully aware of the potential fallout.

Things are very different in now. We have made huge achievements behind the scenes and have plenty to lose if a FULL federal ban in enacted. Meanwhile the LGBTI community is largely unaware of this risk. The stark reality is that any state same-sex marriage law will not only be ‘temporary’, it will likely push us further back than we can imagine. Is it worth it? These are the discussions we need to be having as a community.

Federal marriage reform is the only true way we can achieve ‘marriage equality’. State marriage laws are a nice idea but before we go any further we must ask the tough questions and begin a community-wide discussion. State same-sex marriage is completely different to federal reform.

All LGBTI people interested in marriage equality should seek out a copy of the proposed same-sex marriage bill in your state, have a read, ask questions and dare to point out your concerns. This is our relationships and lives being debated and we deserve to be fully informed and fully consulted.

About the author

Luke Gahan is a board member of the Victorian Gay & Lesbian Rights Lobby and the Australian Gay and Lesbian Archives. He is a sociologist at the Bouverie Centre, La Trobe University. Gahan was the first national convenor of Australian Marriage Equality in 2004 and prior to that was the treasurer of the NSW Gay and Lesbian Rights Lobby. Gahan was one of the authors of ‘Writing Themselves in 3’ a national study on the sexual health and wellbeing of same-sex attracted and gender questioning young people. Gahan is currently researching the experiences of separated same-sex parented families and is co-editing a book on LGBT people and spirituality.