Same-sex marriage

Mary Anne Neilsen, Law and Bills Digest

Key issue
The right to marry is the one significant difference between the legal treatment of same-sex and heterosexual relationships in Australia. Although same-sex marriage remains controversial, there has been a shift in community and political opinion and the issue is likely to be on the new Parliament’s agenda.

Background

Same-sex marriage has been on the political agenda in Australia for several years, as part of the broader debate about the legal recognition of same-sex relationships.

The expansion of legal rights and protections afforded to same-sex couples in Australia is well developed at both federal and state level. For example, legislation now exists in New South Wales, Victoria, Tasmania, Queensland, and the Australian Capital Territory that provides for the legal recognition of relationships, including same-sex unions.

At the federal level, in 2008 and 2009, there was a wide-ranging suite of reforms to provide equal entitlements and responsibilities for same-sex couples in areas such as social security, employment, taxation and superannuation. However, there remains one significant area of difference between the treatment of same-sex and heterosexual relationships, and that is in relation to the institution of marriage. While there are fewer and fewer rights and obligations attached to married couples which do not attach to de facto couples—a status currently encompassing same-sex couples in most legal contexts—supporters of gay rights argue this is not enough, and that the remaining differences are unacceptable.

Thus, civil unions and domestic partner registries are regarded as insufficient and, for true equality, same-sex couples must have the right to marry. Undoubtedly, for some in the community, the concept of same-sex marriage is complex and controversial, raising social, religious, moral and political questions.

Parliamentary reform

The 43rd Parliament saw an increased focus on the subject of same-sex marriage, with a flurry of legislative activity, including three Bills designed to amend the Marriage Act 1961 in order to allow people the right to marry, irrespective of their sex (one Bill was introduced by Labor backbencher Stephen Jones, one by Greens MP Adam Bandt and Independent MP Andrew Wilkie and one by Greens Senator Sarah Hanson-Young). The Bills, if enacted, would also have removed the prohibition on the recognition of marriage between same-sex couples solemnised in a foreign country. These Bills were the subject of two parliamentary committee inquiries, but were not passed by the Parliament.

Opinion polls

The Parliamentary Library’s chronology of selected polls states that the outcomes of several polls from a variety of groups conducted over the years 2004 to 2010 may suggest a shift in public opinion in favour of same-sex marriage. However, in an August 2013 Fairfax Nielsen Poll, 57% of respondents said that same-sex marriage was ‘not important at all’ in deciding how they would vote in the coming election.

Position of the political parties

The 43rd Parliament saw a shift in political party attitudes to same-sex marriage. In December 2011, the Labor Party’s platform was amended to support same-sex marriage, but to allow Labor MPs to have a conscience vote on the issue. Kevin Rudd reversed his opposition to gay marriage in May 2013, shortly before regaining the Labor leadership. During the election campaign, Rudd promised that if re-elected, his Government would introduce marriage equality legislation within one hundred days of taking office, and Labor MPs would be allowed a conscience vote on the issue.

Tony Abbott has traditionally opposed same-sex marriage, and in the 2012 parliamentary debates on the same-sex marriage Bills, Coalition MPs were not allowed a conscience vote. In the election campaign, Abbott reaffirmed that he would not support legislation to allow gay marriage. He did not see the issue as a priority for a Coalition Government. A number of Coalition members have indicated however that they would support marriage equality if the party room determines a conscience vote is available.

The Australian Greens have consistently supported same-sex marriage and have sought to legislate in support of their position in both the 42nd and 43rd Parliaments.

International developments

Attention to the issue of same-sex marriage in Australia often follows developments overseas. A growing number of countries allow same-sex marriage (currently 16) with New Zealand, parts of the United Kingdom and France most recently joining the ranks. There is an argument that the Hague Marriage Convention requires signatory countries (Australia is one) to recognise overseas same-sex marriages. In May 2013, Senator Hanson-Young introduced legislation which, if enacted, would have given recognition to valid same-sex marriages entered into overseas. The Bill was a specific response to the changes in New Zealand and would have allowed Australian same-sex couples planning to marry in New Zealand to have their marriage recognised on return to Australia.

There have also been significant developments in the United States where the Supreme Court recently gave two decisions which have had an impact on same-sex marriage. One of them cleared the way for same-sex marriage in California, the 12th state to recognise same-sex marriage, and the other struck down the Congress’ Defense of Marriage Act, which provided that in all federal rules and rulings, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife. According to civil rights lawyer, Father Frank Brennan these decisions will have an impact beyond the United States.

Constitutional issues and state same-sex marriage laws

Introducing same-sex marriage at a state and territory level has been seen as a fall-back position for marriage equality advocates. New South Wales, Tasmania, South Australia and the Australian Capital Territory have all indicated a willingness to introduce same-sex marriage laws.

State same-sex marriage laws raise the question of whether state parliaments have the power to pass such laws. According to constitutional lawyer, Anne Twomey, the short answer is yes; the more difficult question is whether that law will be effective or whether it will be inoperative because it is inconsistent with a Commonwealth law, namely the Marriage Act. Twomey argues that the answer to this question is unclear and unknowable until the High Court decides. Furthermore, she argues that even if operative, a state marriage law would do little more than facilitate the holding of a ceremony. It might confer on the parties to a same-sex marriage the status of ‘married’ for the purposes of a specific state, but it is most unlikely that the parties would be regarded as legally ‘married’ for the purposes of Commonwealth law, or under the law of any other state. It would therefore not attract any legal benefits or status accorded to a married couple.

The legal uncertainty is not limited to the states. The Constitution gives the federal parliament power over ‘marriage’, but the High Court has not said what this term means. The key question is whether federal power is limited by the view of the 19th century framers of the Constitution that ‘marriage’ means a union between a man and a woman, or has it evolved to encompass other relationships. George Williams, professor of law at the University of New South Wales, says the bottom line is that whichever parliament first legislates for same-sex marriage, a High Court challenge will likely follow.