Tag Archives: taspol

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.