Having already posted two articles on the subject of same-sex unions and having written about it extensively elsewhere, I was content to have said my piece until I read a full page message in The Australian Newspaper on Tuesday 1 September 2015, signed by the Chairman of beyondblue, the Hon Jeff Kennett AC, supported by the twelve other members of the board of that organisation, and submitting an argument in support of legally recognising same-sex unions as marriage (something that Mr Kennett and at least one other member of the board, Hon Julia Gillard, opposed until recently).
beyondblue is a national initiative raising awareness of anxiety and depression. It does good work and deserves respect. But its emotionally-wayward argument based on the premise of equal love, a presumption of discrimination, and the assertion that, as discrimination is a factor in some cases of depression then ergo we must legally recognise gay marriage to avoid possible suicides occurring for the want thereof, is nonsensical and misconceived.
This issue is not about love, equal or otherwise. It is about law.
If that were not so then we would have to recognise that there are other relationships in our multi-cultural community where the parties also profess their genuine love and affection for each other: polygamous unions; polyandrous unions; endogamous (hippy commune) unions; arranged unions; bigamous unions; even incestuous unions, and others.
To accept that love is all that matters and that love will find a way, must lead to the expectation that beyondblue would also be prepared to publish full page messages of support for the legal recognition of such other kinds of unions based on the supposition of equal love, discrimination and likely depression leading to suicide.
Indeed, there are advocates for the recognition of such other kinds of unions that the law encounters and if the same money and support that gay marriage has been able to attract were given to the promotion of those unions then, no doubt, the same erroneous arguments of equal love and discrimination, and the same emotional pressure on the community for legal recognition, would arise.
So let me re-state the case for the recognition of same-sex unions based entirely on legal, political and pragmatic considerations:
- Same-sex unions are not illegal. They exist in the community and have done so for thousands of years. There is no impediment to them being recognised as lawful.
- Whatever objections anyone may have (or had) to same-sex unions on religious, moral or other grounds, a significant majority of the public (and politicians) has been persuaded or coerced into either supporting or not opposing their legal recognition.
- If that is not the case (and the government proposes a plebiscite so we will soon find out) then, like the “love that dare not speak its name” but won’t now shut up, the demand will not go away until it eventually succeeds. (That may not be a valid reason in some minds as to why we should succumb to undue pressure, but in a democracy the majority prevails. It will happen.)
- The Federal Parliament, for very practical reasons, has already recognised de facto same-sex unions in at least 85 statutory provisions relating to such things as superannuation, taxation, health insurance and other matters and the High Court has held that Parliament has power under the Constitution to legalise those unions.
That said, the most important aspect of this entire issue is not if, when or why same-sex unions should be recognised by law, but how?
So far, every private member’s bill that has been proposed has approached the subject by way of amending the definition of “marriage” in the Marriage Act 1961, to re-define and broaden its present meaning of being the union between “a man and a woman” to variations of “any two people”.
With respect to all such proposals, that approach is ill-conceived, artificial, offensive to many traditional marriages and, above all, legally unsafe.
Unless it is intended, any such change to the definition of “marriage” would admit at least some of the other kinds of union referred to. It would also create a legal fiction that same-sex unions and opposite-sex unions are the same, which is erroneous and absurd.
One can well imagine all the forthcoming emotional clap-trap and shame-naming that the public will be forced to endure whenever the proposed plebiscite comes along, to say nothing of the haggling that will take place over the wording of the question to be put.
It is to be hoped that good sense, somewhere down the line, will ensure that the public will be offered the choice of agreeing to the recognition of same-sex unions by means of their own separate act, with their own definition of “marriage”, and not by the pretence of being the same thing as traditional marriage.
That is how at least fourteen other countries (with ten more proposals pending) have approached the issue. In that way, neither proponents, for nor against, could surely object. It is not a compromise. It is the only sensible way to address the matter and the most likely proposal to succeed.