On the Tasmanian Same-Sex Marriage Bill 2012

We interrupt your regularly-scheduled Python community discussion for something completely different.

The Same-Sex Marriage Bill 2012 passed the lower house of the Tasmanian Parliament today. As a passionate supporter of marriage equality, it would be wrong to not let this moment go unnoticed.

I read the bill in full this week (you can find the text of it from the Tasmanian Parliament web site), and was quite disappointed by it. Basically, the bill defines an institution called a “Same-Sex Marriage” under Tasmanian Law. “Same-Sex Marriages” are defined as follows:

“the lawful union of two people of the same sex, to the exclusion of all others, voluntarily entered into for life”

That is to say, it defines a union, available exclusively to same-sex couples. There are many provisions of the bill that I personally hold grave concerns about, and I feel that celebrating the passage of this law as a victory is counterproductive to those fighting for marriage equality at a Federal Level.

My friend, Michael Cordover, who’s more deeply versed in the law than I am, posted the following to his Facebook feed this evening, and I asked him to reproduce it on this blog so that it might reach a greater audience.

I don’t necessarily agree with everything he’s written (I’m not going to be drawn on the constitutionality of the bill), but his words have encapsulated most of my thoughts, but with the added gravitas of someone who actually knows what he’s talking about.

I am a deeply passionate supporter of marraige equality. I think there is no rationally based oposition to permitting same-sex marriage which is not homophobic. But I do not support what the lower house of Tasmanian Parliament has done today. Here’s why.

Because I support equality

The Tasmanian bill, by necessity, produces “same sex marriages” which are a different institution to that which we know as marriage in Australia. The entire basis of the argument as to its validity under the constitution (and we’ll get to that in a second) is that it covers something different to the Commonwealth Marriage Act. I want homosexual marriages to be recognised. These are civil unions with a misleading name. It is a separate and lesser institution. It’s not even the separate-but-equal, which I maintain is not equal at all.

Because it’s unconstitutional

The argument goes that because the Commonwealth Marriage Act defines marriage to mean only that which is between a man anad a woman, it is not intended to exclude marriages between same sex couples. As marriage is a concurrent power under s 51 of the Constitution, that means states can legislate for same-sex marraige. This relies on a claim that the Marriage Act was not intended, at the time of the 2004 amendment, to “cover the field” which includes same-sex marriage. I have been wrong before about High Court decisions but I think any argument that this bill is not invalid by virtue of s 109 of the Constitution is academic at best. I don’t think a High Court decision to that effect would be good law, I don’t think it would be based on a proper examination of the issues, and I certainly don’t think its likely given both the way in which the Court has interpreted s 109 in the past and the way the current Court has been dealing with questions of the division of powers.

Because it promotes complacency

The message that is coming out is that this is the end. That Tasmania has finally done what the Commonwealth refuses to do so we’re first and we’ve done the right thing. We haven’t. If one person says – and I guarantee [one] will – that we don’t need a change to the Commonwealth Marriage Act because of the passage of a Tasmanian Act, that is a harm. Does anyone think instead that people will start lobbying for change to the Commonwealth law as a result? Perhaps. Perhaps it’ll be a “well it didn’t destroy the world” argument. I mean, just because we already have that argument for Argentina, Belgium, Canada, Denmark, Iceland, Netherlands, Norway, Portugal, South Africa, Spain, Sweden and the United States, doesn’t mean it won’t be strengthened by adding Tasmania.

Because it’s misleading

This I think is the worst thing. If this passes the upper house, people will get married and they will expect it to stick. They will be devastated when their marriage isn’t recognised by Commonwealth law. They will be devastated when their marriage isn’t recognised in Victoria. They will be devastated when they find all the red tape they’ve gone through is ignored by everyone outside this tiny little island. And they will be most devastated when the High Court finds that the law is unconstitutional. These people will be hurt because the Tasmanian Parliament is making a promise on which it can’t deliver.

A few final thoughts

That the Commonwealth Marriage Act discriminates against same-sex couples is simply unjustifiable. That moves to amend that Act have failed is disheartening. This is my number one issue. I believe it’s a heinous form of discrimination that is easy to fix. I believe the purported political gains are meaningless. I try to convince everyone I meet of my position and because of this issue – like few, if any other issues – I will stop talking to people. I have left friendships for their failure to support same-sex marriage; I have argued for hours on the topic; I’ve pursued lines that I know I can never win; and I’ve cried when people remain unconvinced. Believe me when I say I want marriage equality. But that’s not what this is. This is a sham. This is the Tasmanian Parliament making a statement it’s made before, but now with a promise it can’t keep. So I don’t support it, and I’m not ashamed to say so.

Michael’s words are available under a Creative Commons Attribution 3.0 Australia licence.

14 thoughts on “On the Tasmanian Same-Sex Marriage Bill 2012

      1. What kind of man? What kind of woman?
        Does it say “only heterosexuals” or “no homosexuals”?
        This line does not say that homosexuals cannot get married. It is the homosexuals who are saying “I don’t want to marry a person of the opposite sex.”
        The restriction comes from within the person, not from the Act.

        1. Ha. You got me. Can’t argue with that at all.

          I guess, that just to be fair, we should make it so that heterosexual people are not allowed to marry the person they love either?

          Yep. “You may marry any person of the opposite sex, except for someone you love” would be an excellent way to create equality for all.

          1. The Act says that;
            a parent can’t marry their child (even a step-child),
            siblings can’t marry each other,
            children can’t marry.
            Are you suggesting that these should change as well?
            Is it age discrimination to prevent a child from marrying?
            If so, do the attempts to get rid of discrimination from the Act mean that children should be allowed to marry the person they love?

  1. Hi Chris,

    Have you read this document?

    Can Tasmania Legislate for Marriage Equality? Will We Face a High Court challenge?
    Faculty of Law Seminar, University of Tasmania, 29 August 2012
    Professor George Williams

    I have a copy online here and can email you a copy if you can’t access that.

    I would be keen to hear your comments in light of this paper.


    1. Hi Michael,

      I’ve not read Professor Williams’ paper, but I’ve heard summaries from people who attended the seminar. As I mention at the start of my post, I think the discussion of constitutionality of the bill is the weakest point of Michael (Cordover)’s post[1]. There are plenty of academics on either side of the fence who will argue the legality of the legislation, and there will be an inevitable high court challenge to test its legality.

      My deepest concerns are those that Michael raises in sections 1 (“Because I support equality”), 3 (“It promotes complacency”), and 4 (“It’s misleading”) – I’ve read the bill in its entirety – it does indeed define its own, separate legal union called a “Same-sex marriage”. This union is not a marriage, and it will not be recognised by any state that does not have legislation in place to recognise that specific union.

      For that reason, and the reasons in the paragraphs I’ve cited, I think that it’s unreasonable to refer to the bill as facilitating equality under the eyes of the law.

      I personally believe that the unions facilitated under this legislation are something that every State Government should facilitate. There should be a way for same-sex couples to have a state-sanctioned ceremony proclaiming their union.

      But the unions that states can facilitate are flawed when compared to Federal Marriages. Everyone who opts to take one of these unions should be aware of this.

      Call the unions produced under the legislation “Civil Unions”. Make sure the Tasmanian Government acknowledges that these are a stop-gap, not a final solution, which they cannot be as long as you can take a trip to another state and no longer have your union recognised.

      Make sure that EVERYONE knows that these unions are the best that we, as a state of Australia can do, until we amend the Federal Marriage act.

      I hope you understand this – I’d be more than happy to answer any further questions you have.

      [1] I left that paragraph in the re-post because I think it would be unfair on Michael to not quote him verbatim. The rest of the essay stands up perfectly well without it.

  2. Hey Chris! I was disappointed to not see you at Kiwi Pycon. My old home town not good enough for you or something?

    I agree that the wording of the bill is ridiculous. It’s no better than making a low that makes people say: “Hi! I’m Bob and that’s Mary, we’re Black-Person Married”, or “Hi! I’m John and this is Lisa, we’re Jew-married!”

    Having said that, I don’t think your insistance on an all-or-nothing approach is merited. If this bill passes, people who believe in equality will not be ‘mollified’ and will keep pushing for a full equal-marriage act. Those who fear equality will slowly look more and more ridiculous as the world fails to end.

    In New Zealand, I really do think we’re about to have full marriage equality, but I also doubt we’d be able to achieve that if it weren’t for the fact that we’ve already had civil unions for eight years and failed to be consumed by hellfire and damnation.

    I think this is one of those occasions where the ‘slippery slope’ metaphor is entirely apt, and actually *beneficial*. If this passes, you might have to wait a few more years for true equality, but I absolutely guarantee that it’s inevitable.

  3. In all this discussion of passing “same sex marriage” in Tassie I’ve never once considered that it would be its own separate entity — some disquieting food for thought…

    Hopefully if it passes it will act as a stepping stone on a federal level, not just a roadblock on a state one.

  4. Quote from the Blog:
    “I think there is no rationally based oposition to permitting same-sex marriage which is not homophobic.”

    So what he’s saying is that if it’s rational then it’s homophobic, surely it’s the non-rational opposition that is from a place of phobia not the rational ones o.0

    This kind of statement just shows the lobby side of the debate for what it is. You are not open to discussion, any “rational” disagreement is called bigoted and homophobic, any other disagreement then is labeled as being irrational.

    Above in this discussion Peter mentions siblings, I notice you didn’t answer that one.
    What about 3 consulting adults (or 4, or more)?
    Their arguments are exactly the same as yours, except not fueled by the hate and vitriolic ad hominem attacks.

    1. Pretty simple – incest is a criminal offence, defined through other acts. In effect, such an amendment would only permit a relationship that’s illegal everywhere else, so that wouldn’t be very useful. Homosexuality isn’t illegal, so the arguments are incompatible.

      3 or more consenting adults? That’s a logical fallacy, called the ‘Slippery Slope’ argument: http://yourlogicalfallacyis.com/slippery-slope – nobody’s arguing for it, I don’t want it, and presumably the people against same-sex marriage don’t want it either. So why should we waste our time arguing for it?

      1. Homosexuality was once illegal too, in fact it still gets a mention in the DSM IV TR a diagnostic manual for mental health.

        The fact is your claim is based purely on love on what society can do for you (in which case why not polyamory? And there are groups pushing for this, the Islamic society just to mention one. Slippery slope is actually a valid argument as it does happen. Look at abortion, gone for first trimester to partial birth, with an occasional voice speaking about after birth abortion).

        Marriage is not about legislating love, that would be ridiculous, it’s about providing the best and most stable environment for raising children. That is with there biological Mother & Father, there are many studies proving that children raised by Mom & Dad are better off across the board. Married couples often benefit society by the production of those children who hopefully go on to be tax paying citizens supporting the older generations into the future.

        I realize this must be homophobic as it is a rational disagreement rather than an irrational one.

        1. The American Psychiatric Association removed homosexuality from the DSM in 1973 (see http://ajp.psychiatryonline.org/article.aspx?Volume=138&page=210&journalID=13 for a citation). All modern psychiatric study does not consider homosexuality as a mental illness. All states have decriminalised homosexuality for that exact reason, amongst others.

          As for your argument for using Marriage as the basis for raising a child: if that were the case, we wouldn’t have numerous acts that support single parents. If single parents weren’t an acceptable option, we wouldn’t have legislated to support them. Oh, and we wouldn’t permit divorce of marriages where children were involved (because Married parents is the best state for Children).

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