Time for compromise on same-sex marriage

The lull in the debate over recognition of same-sex marriage due to the political stalemate reached on whether to hold a national plebiscite or to determine the matter on a conscience vote in Parliament, provides a valuable opportunity to consider the ‘end game’ to this long-running controversy.

It is also an opportunity for each side of the debate to pause and re-assess their positions balanced against the real and meaningful concerns of the other side. For there are valid issues and objections to be considered in respect of both.

It must also be realised that there can be no real winner if the outcome for one side is a begrudged victory and for the other a sore defeat, particularly if the margin of determination is closer than is presently assumed. Surely a measure of détente and compromise must be the more desirable outcome for all concerned.

There is a way to sensible agreement and compromise if the principle advocates on each side are willing to shift from their entrenched positions.

But first let me put as impartially as I can the salient factors which weigh in the debate and which each side should seriously and respectfully consider in the light of their own position.

In doing so I refrain from arguing either case (for all that has already been done to excess) but rather my purpose is to merely state what must be regarded as practical and undeniable considerations on both sides of the argument.

                                       For same-sex marriage

Those who are against same-sex marriage should consider the following to be cogent factors in the case for its recognition:

·        Adults of the same sex live together for whatever reason or circumstance whether or not the relationship is sexual or platonic. That has been the situation for many centuries. But whatever the relationship is it is really no one else’s business but those involved. In any case such relationships are now protected by the Privacy Act 1988 (Cth).

·        Some such relationships are based on genuine love and affection and it is understandable and not unreasonable for those who have committed themselves to an enduring domestic life together to wish to have their unions recognised, if for no other reason than to establish their social and lawful existence.

·        Whatever the religious and moral concerns may be, homosexuality has been removed since 1973 from the Australian Medical Association’s list of mental illnesses and disorders whilst homosexual practices between consenting adults ceased to be a public offence in all of the Australian states and territories up to and since 1997.

·        Whether same-sex relationships are recognised or not, courts have to deal with the same problems and issues that arise between the parties in the same way they arise in respect of heterosexual relationships, married or otherwise. Legal certainty of same-sex unions would be an aid to justice.

·        For practical reasons Federal Parliament has already recognised de facto same-sex unions in at least 85 statutory provisions relating to such things as superannuation, taxation, social security, health insurance and other legislation.

·        The High Court has held that the Constitution gives the Federal Parliament exclusive power to make laws relating to “marriage” and that the “juristic concept of ‘marriage’ cannot be confined to a union having the characteristics [only of an heterosexual one]”. The Parliament has the power to legally recognise any kind of “marriage” relationship, including same-sex unions.

·        Since 2001 when The Netherlands was the first country to do so, there are now 22 countries, including the UK, USA, Canada, South Africa and NZ that have recognised same-sex marriage. Globally that trend continues with Taiwan’s constitutional court ruling in favour of same-sex marriage on 24 May this year.

·        Whilst informal polls are not always accurate or impartially devised, they suggest that a majority of the public is not opposed to the recognition of same-sex marriage. Even so, good sense suggests that if the cause is defeated at this time it will not go away.

                            Against same-sex marriage

Those who are for same-sex marriage should consider the following to be cogent factors in the case against its recognition:

·        The union between the male and female species is intended by nature for the issue of children and the perpetuation of the human race. It has no other purpose in nature and is devoid of all the practical and moral requirements for the survival of mankind which we ourselves must provide as legal and socially-binding rules.

·        Recognition of the union between a man and a woman has been at the foundation of community life since ancient tribal times. Whilst nature is amoral and does not care, any other kind of union is an aberration of its fundamental purpose and a deviation of a key element of long established social order. Any change is a serious matter.

·        The recognition of same-sex unions based on equality in terms of love and indifference to nature’s purpose is erroneous as a social and legal concept. Secular law knows nothing of love but its consequences. To the law, and in fact, heterosexual unions and same-sex unions are two different things. The only similarity abides in the ceremony of marriage and its celebration. Beyond that the unions are still different.

·        According to the Australian Bureau of Statistics only 0.7 percent of the living-together couples in Australia are of the same sex. Other credible studies find that only 1.2 percent of the adult population identify as homosexuals (gays and lesbians including bisexuals). It is a very small number of the population which expects the vast majority to recognise same-sex unions to be the same as theirs.

·        There is concern that by changing the definition of marriage in the Marriage Act 1961 (Cth) – being, “the union of a man and a woman…” – to be just, “the union of any two people…” as proposed, will not only dilute the concept of traditional marriage, but that it would also encourage various undesirable unions to seek recognition as well.

·        Marriage is a fundamental precept of all the major religions of the World, all of which oppose same-sex marriage. According to the ABS, at least 65 percent of our religiously diverse population in Australia still claim adherence to particular religious faiths. Reliable polls also show 48 percent of the adult population regard homosexuality as morally wrong. So genuine support for same-sex marriage is far from assured.

·        Changing community values and attitudes, influenced by anti-discrimination laws, are now more tolerant and accepting of homosexuals and same-sex unions than before. As so many people now just live together for whatever reason, lack of formal recognition of same-sex unions is not critical to its social status. There is no longer any reason for gay couples to feel stigmatised or socially uncomfortable.

·        Although informal polls can be reasonably accurate, at times they can be surprisingly wrong; and on an issue as important as changing the definition of “marriage” to deem everybody else’s marriage to be the same thing as a same-sex union, means many people privately hold an opposing view to that which they may openly express on the pretention that same-sex marriage is now the political correct view to adopt.

Now there are advocates on both sides who, no doubt, will want to argue with this analysis, as well as others who will nit-pick away at the subject for evermore. But one way or another the issue must and will be resolved. Only one thing is certain. The public is heartily sick of it and wants it settled.

The Government has proposed a national plebiscite. The Opposition with The Greens (believing they have the numbers) want it to be resolved by the Parliament as a ‘conscience’ free vote.

There is merit in both approaches. But either way also has its problems.

Even though a plebiscite is entirely justified and is the only assured way to effectively resolve a matter of such social importance, there is sure to be disagreement over the question to be put and the balance and fairness of the for and against campaigns, and with all the rancour and divisive issues to which it will give rise.

 Similarly, if the matter were to be determined by Parliament the question must be asked as to whether it is ethical for each member to be exercising his and her personal ‘conscience’ vote on a profound moral issue for every one of their constituents who has an opposing ‘conscience’ view to that of the member? 

It would also be electorally risky especially in those electorates where the member holds the seat by a small margin and may well suffer a backlash.

As well, the debate and the outcome could be much more divisive in the ‘ramming’ of the matter through Parliament and ‘down the necks’ of everyone who disagrees with it. To do so by conscience or by political expediency, would be seen as a travesty.

Finally, if the reader has acknowledged this analysis so far then it is time to turn to what alternative approach the process might take by way of sensible compromise and resolution.

Put simply: leave the Marriage Act and the definition of traditional marriage alone and recognise same-sex unions in their own act of parliament with their own definition of their own kind of marriage.

Now before someone starts crying “discrimination!” consider this: As recently as 2013 when the ACT introduced an act to recognise same-sex marriage which the Commonwealth Government successfully challenged in the High Court as unconstitutional, the organisation representing the interests of same-sex unions, Australian Marriage Equality Inc, appeared in the hearing of that matter in support of that act being deemed valid. 

That being so, there could be no objection by the gay lobby to the Federal Parliament introducing a Bill in similar terms, distinguished from the provisions of the Marriage Act and with a separate definition to the effect that, eg, “marriage for the purpose of this act shall mean the union of any two persons of the same sex…”

There are more than 25 countries and states that have recognised same-sex unions in similar ways without changing the definition of marriage. To insist on some illusory notion of equality in all respects simply defies logic.

Nor could there be any valid objection by the ultra-conservative right to this approach as the Marriage Act and the definition of heterosexual marriage would not be touched. Their opposition would be simply ideological.

Such solution should be acceptable to any thoughtful, reasonable and objective-minded person. It would certainly attract much greater support for the cause of same-sex marriage in any plebiscite if one were to be held on that option, whilst the margin of support over any opposition based on a conscience vote in the Parliament would be less acrimonious and vastly more acceptable to the electorate.