Gay-Marriage

SAME-SEX MARRIAGE MULTI-MODULE

Miss Atwood

DRAFT 3

SLIDE 1: BRIEF ABSTRACT: (name) plays the role of a seminar host informing individuals about the current legal situation relating to same-sex marriage.

SLIDE 2: Good evening esteemed guests and families. My name is .. – Professor of Law and International Relations at the Australian National University and I would like to welcome you all to the 2013 Issues for Families Conference. As most of you may be aware, this seminar will focus on the current legal situation relating to same-sex marriage as well as identifying the stakeholders involved in the contemporary issue and the capacity of legislation to operate effectively. Moreover, I plan to deliver valid and decisive arguments concerning the suitability of legal outcomes, including recommendations for change.

In contemporary Australian society, same-sex marriages are currently not permitted. Furthermore, the Australian government does not recognise marriages between same-sex couples entered into outside the country are not recognised as marriage in Australia (Australian Marriage Equality, 2013). For decades, we have heard that marriage is on the wane, in Australia and across the secular West. The true picture is somewhat more complex. While the marriage rate is falling, marriage remains the preferred living arrangement for adults in Australia, despite the views often expressed publicly regarding marriage. In order to grasp a comprehensive understanding pertaining same-sex marriage, it is intrinsic to ask ourselves, what is marriage?

SLIDE 3: The 1866 English case of Hyde v Hyde and Woodmansee [L.R.] 1 P&D 130 (Biggs, J. Black, A. Owens, D. Woodgate, R. 2007) provided the definition of marriage which is still applied in Australian law. In that case Lord Penzance provides an explicit definition of how marriage is defined under Australian law. Penzance stated, ‘I conceive that marriage, as understood by Christendom, may be defined as the voluntary union for life of one man and one woman to the exclusion of all others’. SLIDE 4: Prior to June 2012, under Queensland law, same-sex couples could have a ‘civil union’. (Mitchell asks, ‘what is a civil union’.) Excellent question, civil union is a generic term that includes a registered partnership, a civil partnership, and all other formally-recognised personal unions (Biggs, J. Black, A. Owens, D. Woodgate, R. 2007). Intrinsically, it was the only avenue for a same sex couple to attain official recognition of their relationship. Undoubtedly, the primary reason for the Federal government developing civil unions was for the purpose of federal entitlements. However, on 22 June 2012 the Queensland Parliament passed the Civil Partnerships and Other Legislation Amendment Bill 2012. The new legislation came into effect on 27 June 2012 and amended the Civil Partnerships Act 2011, renaming it the Relationships Act 2011. Under the changes, same-sex couples would still be able to register their relationship with the government, but would no longer be able to have a state-sanctioned declaration ceremony. The primary reason as to why the state government made amendments to the Act was that Christian churches were most offended by the provisions of the act which sought to ‘emulate marriage’. Since we have now scrutinised the current legal situation relating to same-sex marriage, I will now present a segment featuring Finance Minister Penny Wong and Greens MP Adam Bandt for same-sex marriage and Jim Wallace member of the Australian Christian Lobby and Liberal frontbencher Kevin Andrews maintain Australia’s current definition of marriage.

SLIDE 4 AND THEN SLIDE 5: (MUST EXIT PP) Videos play for approximately 4.10 minutes s

SLIDE 6: As you now understand the arguments for and against same-sex marriage, we will now look at valid and decisive arguments concerning the suitability of legal outcomes, including recommendations for change. SLIDE 7: The failure of recognition from the Australian Constitution to allow gay marriage can easily be perceived as discrimination against same sex couples to our counterparts all over the world. The attitude conceived is dated and refers to an era in time that is no longer applicable. (The Australian, 2013). SLIDE 8: Same-sex couples argue that marriage is solely not based on the need or want to bear children. It is a union between two individuals and therefore any argument pertaining to child rearing is in futile. (Australian Marriage Equality, 2013). Religious arguments concerning same-sex marriage are varied, but if there is a theme, it turns on ' 'rights ' ' as much as it does for that advocating same-sex marriage. The ' 'rights ' ' they champion are not those of gay and lesbian couples to equality before the law, but the rights of children - specifically, a child 's ' 'inalienable right to have both a father and a mother ' '. What 's at stake, they say, is ' 'a cultural institution built around a central biological core, the inherently pro-creative relationship of a man and a woman ' '. For many heterosexuals, procreation is not confined to marriage - one in three children is born out of wedlock. Single women choose to have children, some through state-funded IVF, which is also available to same-sex couples. Gays and lesbians can adopt children in some Australian states, although not in Victoria. However, at a time when church attendance - and the influence of its leaders - is at a low ebb, and traditional notions of family have gone the way of ' 'meat and three veg ' ' as the evening staple, the force of their argument is being tested. Finance Minister Penny Wong points out that regardless whether or not we have marriage equality in Australia, this will not change whether gay couples will have children, as in some cases, they already do. SLIDE 9: A summary of findings from empirical research conducted over the last few decades, shows that data “comparing gay and lesbian parents to heterosexual parents and children of gay and lesbian parents to children of heterosexual parents are quite uniform: common stereotypes are not supported by the data” (American Psychological Association, 2005). More specifically, it shows that “studies comparing groups of children raised by homosexual and by heterosexual parents find no developmental differences between the two groups of children in their intelligence, psychological adjustment, social adjustment, popularity with friends, development of social sex role identity or development of sexual orientation” (APA, 2005). One of the main arguments against the current laws changing, is the biased perception that children will suffer psychological turmoil if raised in a same sex environment. SLIDE 10: Yet statistics prove that approximately 25% of same-sex couples are raising children of their own, whether through surrogacy or adoption. By allowing the parents in these families the rights to marry we are providing their children with the same rights and recognition that children from heterosexual marriages possess (The Australian, 2013). SLIDE 11: In essence, our government would not be discriminating against the minority. SLIDE 12: Despite the fact that an abundance of Australians are activists for same-sex marriage, institutes such as the Australian Christian Lobby vehemently oppose same-sex marriage. Religious views also are indicative of biased perceptions as marriage is a union between two people who are only bound by whichever religion they choose to follow. The law does not stipulate that marriage is only recognized within certain religious parties and therefor it is not a valid argument.

SLIDE 13: Although there are clearly an abundance of activists and groups who have adopted precocious views concerning the legal issue, institutes such as Australian Christian Lobby have embraced quintessential unenlightened 1950’s Australia conservative views. SLIDE 14: If we were to consider the changes in today’s society, unlike the 1950’s, we now have an active voice in the gay community. This doesn’t reflect that there are more individuals who are gay, it simply means it is not a taboo subject and more people in society are comfortable to be open about their sexuality. Unfortunately, as society becomes more accepting amongst individuals changes in legislation are less likely to occur. The traditional conservatives will allow the gay community to have a voice but nothing more. Politically speaking the constitution rebuts the rights of the gay community due to a stigma from many years ago.

Unlike the traditionalists in Great Britain, Australian conformists believe that the sole reason for marriage, with the opposite sex, is to conceive children (The Australian, 2013).SLIDE 15: Additionally, the conservatives fervently believe that it is intrinsic for a child’s upbringing to have both a father and a mother as role models. Today, there still is controversy concerning the widespread belief that marriage benefits children by providing them with stability and security. This leads to some critics of marriage equality to argue that same-sex couples should not be permitted to marry because the children raised in this environment will suffer both psychologically and with their sexual identity. SLIDE 16: However, despite conservatives in Britain, Catholics in Spain and numerous states in America legislating for gay marriage, Australian conservatives still remain opposed to the idea of marriage equality. SLIDE 17: Undoubtedly, same-sex marriage is not the legal issue at hand; it is a political game between the Labour and Liberal parties. Since 2005, gay couples in Britain have had the right to enter into civil partnerships and adopt children. The proceedings that led to the amendments of legislation in the Marriage was the desire for marriage equality in Britain. The draft law, which proposes legalising same-sex marriage in England and Wales in 2014, was carried by 400 votes to 175 votes in the House of Commons. In addition, the new law would also allow civil partners to convert their partnerships into marriages. From a religious perspective, the new law does not force the Anglican and Catholic churches who strongly oppose the move – to conduct gay marriages, however, based on discriminatory grounds gay people may launch legal challenges.

SLIDE 18: In contemporary Australian society, some would argue that ‘marriage’ is universal for ‘legitimate’; it changes the perception and recognition of a relationship, it gives social gravitas to a relationship, marriage gives a recognised status to a relationship and it is an age old social institution. Yet under s5(1) of the Marriage Act 1961 (Cth): “Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” (Commonwealth of Australia Constitution, 1900). SLIDE 19: Undeniably, from 2004 to 2013, Western countries have become more enlightened in terms of sexual identity. Nations in Europe, Africa, Latin America, Canada and several states in America have legalised same-sex marriage, as to should Australia. Do we desire to brace egalitarianism, a value that Western powers have preached throughout history? Or follow the footsteps of unenlightened nations and continue to maintain religious values from the 1960’s?

SLIDE 20: The Federal government has the power to legislate with respect to marriage and ‘matrimonial causes’. SLIDE 21: This comes from ss51 (xxi) and (xxii) of the Constitution. The Howard government used this power in 2004 to introduce two key amendments (Biggs, J. Black, A. Owens, D. Woodgate, R. 2007) to the Marriage Act 1961 (Cth). s88EA of the Act was also brought into play in 2004: “A union solemnised in a foreign country between: a man and another man; or a woman and another woman; must not be recognised as a marriage in Australia.” Quite self-explanatory. A solution to this issue is quite simple, amend the marriage act 1961 (Cth) to reflect the following:

“Marriage may be defined as the voluntary union for life between two individuals regardless of gender to the exclusion of all others”.

SLIDE 22: Yet according to Galaxy Research Polling (2009-2011); 62% of Australians support marriage equality; A majority of Christians (53%) support marriage equality; 76% of Coalition voters want Abbott to allow a conscience vote; 75% believe the reform is inevitable; and 81% of young people (18-24 years) support marriage equality (Australian Marriage Equality, 2013). It is interesting to compare these statistics with a survey conducted at the same time as the amendments to the Marriage Act 1961. In 2004: a Newspoll survey commissioned by SBS found that only 38% of Australians supported same sex marriage. It would appear the government no longer holds the mandate from the Australian people on this issue.

Marriage had been covered by state law until 1961, when the Commonwealth took on the powers under "concurrent law". In areas of law covered by such shared powers, it is possible for states to make their own laws on aspects not covered by federal laws. Due to the fact that federal marriage laws were amended by former Prime Minister John Howard in 2004 to define marriage as between a man and a woman, it was possible for states to argue that the federal marriage law did not cover same-sex couples - and they were free to legislate for them. Laws regulating sexual behaviour, including homosexual behaviour, are the responsibility of the State Parliaments of Australia - the Federal Parliament has no direct power to make laws in this area. Originally the laws regulating sexual behaviour in Australia came from England. British law never made it a crime to be homosexual; only homosexual behaviour between males was outlawed, regardless of whether the people involved had consented or not and so it has been in Australia. In Britain, MPs put the new legislation of same sex civil unions to the vote and with the majority voting for same sex civil unions in the UK, Australia should follow suit. Australia is part of the commonwealth with the Queen as our head of State; therefore, we should be consistent with our 15 Commonwealth. realms.

SLIDE 23: Despite the fact that marriage in Australia today is defined as the voluntary union of one man and one woman to the exclusion of all others, an abundance of Australians vehemently believe that the inequality in marriage is discriminatory against same-sex couples. The question now is not will same-sex marriage be legalised in Australia, the question is when?

References

Australian Marriage Equality. 2013. Fact Sheets. www.australianmarriageequality.com (accessed 7th February 2013).

Biggs, J. Black, A. Owens, D. Woodgate, R. 2007. Legal Studies for Queensland Volume 2 (accessed 8th February 2013).

Commonwealth of Australia Constitution. 1900. Marriage Act. www.austlii.edu.au/au/legis/cth/consol_act/coaca430/

The Australian. 2013. Gay Marriage is Not the Cure. Nadia Daly. www.theaustralian.com.au (accessed 8th February 2013).

The Australian. 2013. UK Move Spurs Greens Push for Gay Marriage. www.theaustralian.com.au (accessed 8th February 2013).

References: Australian Marriage Equality. 2013. Fact Sheets. www.australianmarriageequality.com (accessed 7th February 2013). Biggs, J. Black, A. Owens, D. Woodgate, R. 2007. Legal Studies for Queensland Volume 2 (accessed 8th February 2013). Commonwealth of Australia Constitution. 1900. Marriage Act. www.austlii.edu.au/au/legis/cth/consol_act/coaca430/ The Australian. 2013. Gay Marriage is Not the Cure. Nadia Daly. www.theaustralian.com.au (accessed 8th February 2013). The Australian. 2013. UK Move Spurs Greens Push for Gay Marriage. www.theaustralian.com.au (accessed 8th February 2013).