More than 20 countries have now legalised same-sex marriage. Ireland’s recent constitutional referendum vote in favour makes Australia look particularly backward in comparison with most other developed, English-speaking countries. Canada, New Zealand and the United Kingdom – though excluding Northern Ireland – have also introduced same-sex marriage.
The majority of American states now have same-sex marriage. The US Supreme Court is expected to hand down a decision this year that may confirm whether same-sex marriage is constitutionally protected.
So, as Opposition Leader Bill Shorten prepares to introduce an amendment on Monday to the Marriage Act to legalise same-sex marriage, why has Australia lagged so far behind?
The question seems all the more perplexing because the Australian federal parliament has the power to introduce same-sex marriage. That means implementing same-sex marriage is a relatively simple matter in Australia – unlike in the US, for example, where there were separate struggles to introduce it in multiple states.
Similarly, there is no marriage clause in the Australian Constitution that requires changing – unlike in Ireland.
The answer to why Australia hasn’t already introduced same-sex marriage partly lies in the way in which the issue has been exploited in Australian electoral politics.
The Howard era
There was no definition of marriage in Australian federal legislation that specified which sexes could marry. But in 2004, then-prime minister John Howard introduced legislation banning same-sex marriage.
Undoubtedly, Howard personally opposed same-sex marriage. However, he also hoped that he could use “values” issues in the 2004 election to wedge socially conservative religious voters away from Labor.
Howard implied that Labor had betrayed its suburban, working-class heartland to support the politically correct views of inner-city elites. This was a conservative framing that conveniently overlooked many gays and lesbians also being workers.
Despite some internal dissent, the power of right-wing factions within the ALP won out. Labor voted with the Howard government to ban same-sex marriage. It feared losing key electorates in areas such as western Sydney.
For years, it was left to minor parties such as the Democrats and the Greens to make the public case for same-sex marriage. Unlike the US, where party discipline is less tight, the requirement to toe the party line forced prominent Labor supporters of same-sex marriage to publicly state the ALP’s official position.
The Howard-era legislation banning same-sex marriage was also harder to challenge because Australia does not have a bill or charter of rights. The Canadian Charter of Rights and Freedoms played a significant role in bringing in same-sex marriage.
Similarly, in the US, gay and lesbian activists used legal challenges to laws prohibiting marriage at state level. Such rights litigation was not an option in Australia. Rather, gay and lesbian activists had to rely on trying to change major party politicians’ views.
This was not easy. More moderate conservative leaders in other countries, such as David Cameron in the UK and John Key in New Zealand, eventually supported same-sex marriage. Meanwhile, Howard – and later Tony Abbott – used socially conservative, religious “values” arguments to try to wedge off Labor votes.
In the 2007 election, then-opposition leader Kevin Rudd supported the legal recognition of same-sex relationships as being equivalent to heterosexual, de facto partnerships. But he also used his opposition to same-sex marriage to reassure socially conservative, religious voters. Julia Gillard did the same.
An issue of conscience
It wasn’t until 2011 that the long struggle within the ALP finally resulted in a change to the party platform to support same-sex marriage.
In 2013 – prior to his return to the prime ministership – Rudd shifted too. He announced that he now supported same-sex marriage on the grounds that it was legitimate for the state and the church to have different policies on marriage in a secular society.
Had Labor’s support for same-sex marriage been a binding vote – as was the case with opposing same-sex marriage or with the introduction of the 2008 reforms legally recognising same-sex relationships – the Labor government could have been close to having the numbers to introduce same-sex marriage during the Gillard or second Rudd government. However, Labor MPs were granted a conscience vote.
That conscience vote indicates that the separation between religion and the state is not yet fully accepted in Australian politics. Labor policy had left the question of whom religious organisations should marry, which is clearly an issue of religious conscience, for religious bodies themselves to decide according to their (varied) beliefs.
Labor MPs were effectively being granted a religious conscience vote on the issue of whom the state should be able to marry in a country where currently 72.5% of couples who marry choose to have a civil rather than religious ceremony. State-sanctioned same-sex marriage was still being framed partly as a personal morality issue rather than predominantly as an equality issue.
By introducing a bill before this year’s party conference, Shorten appears to have headed off a push for a binding vote for Labor MPs.
The residual religious framing is one of the reasons same-sex marriage has not yet been introduced in Australia. It has proved much easier (and quicker) to introduce in countries that have predominantly constructed same-sex marriage as an equality issue, such as Canada.
Ireland’s referendum vote is so important because it demonstrates that, even in a country that is traditionally staunchly Catholic, the majority of voters understand that religious definitions of marriage should be confined to religious marriage ceremonies and not be imposed on the state’s definition of marriage.
Most Labor politicians in Australia now take that position too. This includes some MPs who were previously concerned about the impact of same-sex marriage on their seats, such as Chris Bowen, Tony Burke and Ed Husic – all of whom occupy western Sydney electorates.
Meanwhile, many Liberals are urging that they should be granted a conscience vote on legalising same-sex marriage. They are likely to be given one. Previously, Liberal MPs haven’t had a choice over whether same-sex marriage is constructed as an issue of equal rights for loving adults – it has only been constructed as a Howard-era values/morality issue.
The Liberals now risk having same-sex marriage used against them electorally just as they once tried to use it against Labor. Shorten suggested that Abbott is:
… stopping Australia becoming a modern nation.
Labor’s moves prompted Abbott to argue that any decision to legalise same-sex marriage should be “owned by the parliament, and not by any particular party”.
Shorten subsequently suggested that a Liberal could co-sponsor the bill, rather than his deputy Tanya Plibersek. Liberal MP Warren Entsch has indicated his willingness to be involved in future negotiations, but not to co-sign Shorten’s current bill.
Irish Taoiseach (Prime Minister) Enda Kenny argued that his country’s equality vote:
… disclosed who we are – a generous, compassionate, bold and joyful people.
Kenny’s words raise questions about what message Australia’s intransigence on same-sex marriage up to now is sending internationally – as well as to its own gay and lesbian citizens.
Legalise gay marriage, what's the harm?
Updated September 21, 2011 15:28:27
I'm a Christian. I go to church, I lead a Bible Study once a week, and I believe in the Bible and what it says. Consequently, I believe that homosexual sex is sinful.
While we're on the topic, I also believe the following things are sinful: gossip, deceitfulness, hatred, and prejudice.
But you notice something about all the sins in the above paragraph. Every single one of them is 100 per cent legal.
Not everything that I think is sinful is illegal. And neither should it be. Even if something is seen by the entire community as sinful (or immoral, depending on your term of reference) that is not sufficient in and of itself to mean something should be illegal.
A particularly pertinent example is homosexual sex. I don't think there are many people in Australia who want to see a return to the days where homosexual sex was illegal. This is despite the fact there is a fairly decent proportion who think homosexuality is immoral.
Most of Australians are, for the most part, pretty much live-and-let-live kinds of people. "What you do in the privacy of your own bedroom - as long as you don't expect me to join in."
I agree - while I have my own views about what is or is not in accordance with God's teaching, I believe that what you do with your own life is between you and God, and it's really none of my business.
Pre-marital sex is legal, and so it should be. So is pre-marital cohabitation, open marriages, and that sex toy you keep locked in the bottom drawer.
People can get divorced, they can remarry, they can cohabit before being married, and they can legally have all manner of relationships outside marriage.
And yet, for some reason, we have this position where homosexual couples cannot get married.
The main reason that we see proffered by the religious right is the children. The children! Who will think of the children?
It's a weak argument. Single people can have children. Lesbians can have children. Gay men can get their lesbian friend to bear children for them.
We don't (and, in all practicality never could) stop a certain class of people having children. There are kids being brought up in "alternative" homes all over the country. To suggest that homosexuals should not be allowed to marry because "All children deserve a mother and a father" is simple misdirection.
There are people who believe that homosexuality is contrary to God's teaching. There are others who think it is fundamentally immoral, or contrary to nature. To believe that is their right.
But I am convinced that I am not the only person in the country who thinks that you can believe homosexuality is sinful whilst also believing that gay people should be allowed to marry.
To all the homosexuals I am friends with, both in real life and online, as well as all the homosexuals who I haven't met yet, I have this to say: Go! Be happy, and do what you want with your lives.
I have my beliefs. You have yours. We disagree, and that's fine. I don't need your approval to validate my beliefs, as I am sure you don't need mine. If I ever get the chance I would love to tell you why I believe what I do, and I would love to return the courtesy.
I hope that one day you have the chance to marry.
Politicians, can we please get over the lie that once we "legitimise" gay marriage then society as we know it will end?
We have legalised divorce. We have legalised homosexual sex. Adultery and sexless marriages have been around for centuries and the institution of marriage appears to have survived just fine.
I'm married. I love my wife. A million gay people could go and marry each other tomorrow and it wouldn't change that. So what exactly are we worried about?
Christians: there are gay people. LOTS of them. There always have been, and there always will be.
Most of them go about their lives quietly. If they are allowed to marry, it will not change anything. ANYTHING! So relax and let them get on with their lives. It's not going affect your life, your faith or your morals in the slightest.
Then maybe we can get past this issue and start dealing with some of the very real issues Australia is presently facing.
Andrew Tiedt is a Christian, a husband and a lawyer. In all the spare time that leaves him, he blogs on NSW politics at mrtiedt.blogspot.com and tweets as @mrtiedt
Topics:family, marriage, gays-and-lesbians, laws, christianity
First posted September 21, 2011 15:24:45