Same sex, same rights

The ACT’s Civil Union Act has been defeated, but from the ashes new hope will arise for fair-minded Australians who believe that same-sex couples should have their relationships protected by law.

The Governor-General was ordered recently to invalidate the ACT’s Civil Unions Act at the behest of Federal Cabinet. A few days later the Senate narrowly staved off a motion to overturn this extraordinary abuse of executive power, exercised at the expense of the ACT’s authority to self-govern. Howard has won another battle, but this issue will not go away.

Now the hopes of fair-minded Australians turn to state governments to create laws which formalise the equal value and contribution of citizens in same-sex relationships.

Sooner or later the Bracks Government must take the next step on its commendable track record of legislating equality for same-sex couples in Victoria.

The 50-odd pieces of legislation amended in 2001 did almost everything possible in Victorian law to create legal equality for same-sex couples. Focussed largely on proprietary rights, the laws were criticised at the time for endorsing same-sex relationships.

But the government stood strong on its promise of equal justice for all citizens. Time tells us it did the right thing as nobody questions those laws today.

The question for the Victorian Parliament now is whether it should create a civil union scheme for same-sex couples.

The question is not whether gay marriage should be law. This is because the federal constitution covers the field of marriage. Therefore gay marriage is a question only for the Federal parliament, and not for debate in Victoria.

So what will a civil union scheme in Victoria achieve?

First, the legal definition of marriage remains “a union between a man and a woman” in Federal marriage law. Like marriage, civil unions are technically legal instruments, not religious ones. If couples choose to have a religious component to their ceremony that is their choice. But marriage remains untouched.

A civil union scheme in Victoria will only have legal effect in Victoria. It’s an opportunity for same-sex couples to access the same rights and responsibilities as any other loving and committed heterosexual couple in Victoria.

Because most of the remaining discrimination against same-sex couples occurs at a federal level (workplace leave, tax, social security, Medicare, superannuation, Comcare, pensions) a civil union scheme can only remove limited state discrimination. But it’s an important step to achieving uniform national recognition.

The Federal Government won’t override a civil union scheme in Victoria because it’s a state, not a territory, and as long as the laws are not inconsistent with the Marriage Act. The Tasmanian Partnership Register has the legal effect of giving equal entitlements to same-sex couples and married couples, but the Federal Government has never challenged the constitutionality of those laws.

The main concern of opponents to civil unions is the perceived endorsement of sexual intimacy between people of the same sex. Frankly this is an infinitely preferable situation to the denial of same-sex attraction which leads to gay men dishonestly marrying straight women under social pressure, the adverse mental health effects from the lack of social recognition for natural emotions, and a high suicide rate. Instead of tolerating other people’s differences, you might have to respect them.

Gay parents are the other battleground. Opponents argue gay parents produce gay kids. I guess that’s why all heterosexual parents make heterosexual kids. It’s as watertight as arguing that hanging around tall people makes you tall. Kids need love and stability - everything a family unit secured by a civil union locks into place.

Formally recognised same-sex unions are part of the fabric of western life. In Britain about 4,000 same-sex couples have registered their partnerships under the Civil Partnership Act. In Canada, Belgium, Spain, the Netherlands, New Zealand and Scandinavia, thousands of couples have married or held civil unions. The Tasmanians have been doing it for years.

In Victoria, the political risks for acting on civil unions are diminishing. The Bracks Labor Government holds comfortable majorities in both houses. The state opposition leader and the Greens (about to enter parliament) both support civil unions. Only Opposition members willing to break ranks with their leader can speak against it.

The main issue will be getting over Bracks’ instinctive social conservatism and reconciling Labor’s blue and white collar support bases.

One option for doing this is to release a discussion paper and invite public submissions on preferred forms of relationship recognition. The ACT took this incremental consultative step, and it didn’t scare the horses.

Legally recognised same-sex unions are coming. It’s just a matter of time. The more the Howard Government resists, the more media light is shone onto the shadows of prejudice. Even opponents of gay unions now concede that discrimination should be removed and the quality of love is equal to a heterosexual relationship. Gay marriage is the avantgarde foot soldier that has pushed discrimination against gays into prominence, and we have Howard to thank for it.

While well-intentioned people like Mr Tonti-Fillippini (“Marriage requires a man and a woman” The Age, June 12, 2006) cast themselves as non-discriminatory, the effect of their views is to uphold a regime of legislated inequality. As long as same-sex couples desire to be treated like everyone else, they will not give up on this issue.

While there is no civil union scheme in place in Victoria, the law remains an instrument of injustice. When there are no rational grounds for perpetuating inequality, you know its time for the law to be re-written.