The section of the Marriage Act we are currently debating has only been in existence for 13 years. Prior to this there was deliberately no definition of marriage in the Marriage Act 1961. John Howard, in 2004, added a definition of marriage as being between a man and a woman.

It is worth looking at the history of marriage and marriage legislation in Australia, some arguments for and against marriage equality, the broader issues of discrimination, how the plebiscite has contributed to this and why we are having this debate at all.

What is this sacred tradition of marriage?

From Federation until 1961, marriage in Australia was legislated differently in the various states and territories. The Marriage Act of 1961 sought to provide a uniform national legal framework for marriage.

Historically, even from Roman times, marriage has been about property, children and inheritance. Marriage has not existed to protect women or to define some sacred union that will provide an optimum environment to raise children. Up until 1882, women lost all property to their husband upon marriage and the Marriage Bar did not allow women to continue to work in the public service once they were married. This law was in existence until 1966.  

Marriage was never intended to be between couples of the same sex, but this is due to the fundamental nature of marriage as being to produce children and for the man to know that he is supporting his own offspring and to decide who receives his inheritance. Marriage did not stop men from having homosexual relationships, mistresses and children outside of marriage, but historically these women and children had no protection under law and men had no responsibility for them. Marriage itself created the concept of ‘illegitimate’ children and allowed women to be treated as property. It created and enforced the double standard between men and women’s sexual practices. Men were expected and allowed to have mistresses and women would be banished for having sex outside of marriage, and their children could be taken from them.

Now that we have removed some of the blatant discrimination in how women and children were treated in society through or because of the institution of marriage, we have changed the way we see marriage.  We often now see marriage as being more about love and protection and the provision of a guarantee of support. This more emotional view of marriage has love and commitment at its centre; therefore, we now allow no-fault divorce for people who simply ‘fall out of love’, and they can marry again. With advances in technology and science, and particularly the use of contraception and assisted reproductive technology, we can choose when and with whom we have children, regardless of marriage. We can choose to have lifelong partnerships and children without getting married or even choose to have a marriage without any children. Any children born outside of marriage to single parents, and adopted children, have the same rights as biological children born within a marriage.   

The relatively new, idealised concept of marriage as being between a loving couple that could provide a stable and loving environment to raise children is entirely compatible with same sex marriage.

Changes to Marriage Law in Australia

The Marriage Act of 1961 sets out the marriageable age, legitimisation of children, prohibition against bigamy and rules about the marriage ceremony, amongst other things. Importantly, The Marriage Act 1961 did not define what constituted a marriage, instead referring to 1866 British case law for a definition. This definition was taken to mean that marriage was between one man and one woman (i.e. not allowing polygamy) and has since been ruled moot in the UK where same sex marriage is now legal.  

When the original Bill was read in 1960, Attorney General Barwick said:

“… it will be observed that there is no attempt to define marriage in this bill. None of the marriage laws to which I have referred contains any such definition. But insistence on monogamous quality is indicated by, on the one hand, the provisions of the Matrimonial Causes Act, which render a marriage void where one of the parties is already married, and by a provision in this bill making bigamy an offence.”

On its passage through Parliament, Senator Gorton, who was responsible for the carriage of the Bill through the Senate, remarked:

“... in our view it is best to leave to the common law the definition or the evolution of the meaning of ‘marriage’ as it relates to marriages in foreign countries and to use this bill to stipulate the conditions with which marriage in Australia has to comply if it is to be a valid marriage”

It was recognised at the time that marriage law should be flexible enough to change with society.

The Marriage Amendment Bill of 2004 was brought before parliament by then Prime Minister John Howard and his conservative coalition, and it inserted the following into the Marriage Act of 1961:

Section 5

Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

88EA Certain unions are not marriages

                   A union solemnised in a foreign country between:

                     (a)  a man and another man; or

                     (b)  a woman and another woman;

must not be recognised as a marriage in Australia.

Back to the current debate, a common concern expressed by supporters of the ‘No’ campaign is that removing discrimination of same sex couples in the Marriage Act may result in the broader community not being allowed to discriminate against them. Hopefully so. However, the Marriage Act already has specific protection for religious ministers who choose not to marry certain couples:

47 Ministers of religion not bound to solemnise marriage etc.

                   Nothing in this Part:

                     (a)  imposes an obligation on an authorised celebrant, being a minister of religion, to solemnise any marriage;

The 2004 Bill’s stated purpose was to reflect ‘the understanding of marriage held by the vast majority of Australians’. This Bill fundamentally changed the Marriage Act 1961 and removed the flexibility built into it that had allowed so many changes up until then and would have allowed same sex marriage to be included as case law evolved in other countries (as it was seen to do). This was not with the support of the ‘vast majority of Australians’ and was against a global movement for marriage equality and recognition of the rights of the LGBTQI community.

The definition of marriage added in 2004 was a new addition to the Marriage Act and came at a time when several countries had already legalised same sex marriage and the momentum was building to create marriage equality. This is why overseas same sex marriages are specifically mentioned as not being recognised. If left as it was in 2004, case law would eventually have been challenged and the accepted definition of marriage would have changed in response to the evolution of society.

At the time, although the Bill was supported by the Labor party, Anthony Albanese saw no benefit to the Bill to amend the Marriage Act other than to divide the majority against a minority, stating:

“This bill is a result of 30 bigoted backbenchers who want to press buttons out there in the community.”

The Australian Greens and the Australian Democrats opposed the Bill, with Bob Brown calling it the “Marriage Discrimination Act” and ‘hateful’ legislation. These parties have been consistently trying to pass legislation on marriage equality since then. It is interesting that, despite a majority support for marriage equality in the community, the overwhelming majority of politicians continue to vote against it.

At the time this Amendment was proposed, the Australian Human Rights Commission report raised concerns that the bill was discriminatory against gay and lesbian Australians. It reported that the Bill had “little or no utility” and that it was being pursued “in a manner which has...caused at least some gay and lesbian Australians to feel targeted”.

It noted that the Bill went against Australia’s obligations under international human rights law to make unlawful discrimination of same sex partners in relation to marriage and adoption.

Why have an expensive, non-binding survey on same sex marriage?

The concept of marriage has changed over time and there have been several changes to the Marriage Act 1961, including raising the marriageable age (14-year-old girls are now not allowed to marry), allowing Aboriginal people to freely marry (even non-Aboriginal people), and removing sex discrimination in the Act (this required quite a bit of change). These changes have happened without public voting. The Parliament has the power to propose and pass legislation, and indeed this is what they are elected to do.  

The 2004 amendment is not part of our constitution, nor a fundamental part of our identity or way of life, nor is it protecting the historical definition of marriage. Surely, including more people in the institution of marriage strengthens it, as it increases the number of people invested in marriage, encourages the concept of long- term commitment rather than simply ‘romantic love’ and encourages couples to work through issues and remain committed to one another and their family throughout life’s hardships. It certainly has no negative effect on individual marriages in existence today.

Several polls since the 2004 amendment of the Marriage Act have shown a majority of Australians support same sex marriage. We should expect our government to be able to change the Act without a national survey/plebiscite, which is not binding anyway.

Further, we should question why factions of the Liberal Party decided this was such a critical issue and insisted on having a plebiscite to change what is even now only 13-year-old legislation. Given that the clear majority of Australians support same sex marriage, Australians must wonder why Parliament has not simply got on with changing it. It has had the effect of delaying the recognition of same sex marriage, which in turn would have removed a significant extent of discrimination in society. Further it has resulted in a prolonged and hostile debate, which has created a protected platform for opponents of marriage reform to voice bigoted opinions and incite hatred and violence on a national stage, while claiming any criticism is an attack on ‘free speech’. 

In our current political climate, where it is seen as socially acceptable to hold and voice racist, sexist and bigoted opinions, it seems irresponsible and cowardly to allow a public debate on a personal and intimate issue that affects a minority already known to experience significant discrimination, which sometimes extends to verbal and physical abuse. It was easily predicted that this national survey would increase the attacks on the LGBTQI community. The excessive financial cost of the postal survey reflects badly on the government, but further sets the LGBTQI populations as targets for causing the government to have to spend this money.

It’s time Malcolm Turnbull grew some ‘girly bits’ and did his job to remove discrimination against same sex couples recently added to the Marriage Act 1961. Further, if we are now moving to a direct democracy, where the government is abdicating responsibility for passing legislation without a public vote, could we have a vote on the proposed Adani coal mine and billion-dollar government loan/gift?

About the author:

Dr Kelly Hamill is a General Practitioner working in Bellingen NSW and lecturing in ethics and women’s health at the UNSW Rural Clinical School in Coffs Harbour.  She also has a BA with Honours in Philosophy. She has special interests in women and children’s health and issues of social justice and equality and how these impact on health.

References:

Marriage Act 1961

Marriage Amendment Bill 2004

1882 Married Women's Property Act.

Marriage Bar - removed (Public Service Act (No. 2) 1966) At http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Browse_by_Topic/employmentlaw/HistoryemploymentlawHistory of the marriage act and quote from G Barwick, ‘Second reading speech: Marriage Bill 1960’, House of Representatives, Debates, 19 May 1960, p. 6822. And

 P Ruddock, ‘Second reading speech: Marriage Legislation Amendment Bill 2004’, House of Representatives, Debates, 27 May 2004, p. 29356. At http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1112a/12bd158#_ftn17Quote from Anthony Albanese at http://anthonyalbanese.com.au/marriage-legislation-amendment-bill-2004-second-reading

Australian Human Rights Commission

Submission to the Senate Legal and Constitutional Legislation Committee on the Provision of the Marriage Legalisation Amendment Bill 2004. From https://www.humanrights.gov.au/marriage-legislation-amendment-bill-2004