Separate but equal

The passing of the Marriage Equality Same-Sex Bill (ACT) is being celebrated as a landmark moment in the fight for marriage equality - and for homosexual couples in the ACT, it is. But for homosexual couples living in other states and territories, and the broader goals of the movement, this event may lead to long term consequences for the homosexual community, particularly homosexual couples in conservative states.  

It is firstly important to understand the nature of the suit. The common misconception is that the commonwealth is challenging these laws on the grounds of being “anti-gay marriage”. However, the challenge is in fact a fight over who controls the right to legislate on same-sex marriage: the states and territories, or the commonwealth.

The commonwealth has the right to legislate over ‘marriage’. The states are launching their defence on the grounds that ‘marriage’ is distinct from ‘same-sex marriage’, and as such states have control. What this means is that a successful defence by the ACT will involve a statement by the High Court that ‘same-sex marriage’ is a distinct institution from ‘marriage’; the latter being intended only to involve heterosexual couples.

The first harm this article will argue then concerns the very equality of the marriage itself. By advocating for states legislating over marriage, they are essentially saying that ‘marriage’ is inherently heterosexual. Marriage equality advocates, by fighting for states, are in fact selling the dream of marriage equality in favour of being “equal but different”. They buy into the rhetoric of conservatives by admitting that ‘marriage’ is inaccessible for the heterosexual community. Surely, if the movement truly wants marriage equality, it needs to gain acceptance within the existing institution – not the creation of shadow, separate one.

This may have pragmatic problems in the future. By having two separate institutions, there is no need to treat the institutions the same. Being ‘married’ may entitle a couple to tax breaks that being ‘same-sex married’ will not, for instance. If the movement seeks true equality, it needs to be accepted within the institution of marriage itself. In this way it can guarantee itself true equality.

The second harm of allowing states to legislate on gay marriage is the reality of leaving some states behind. For states such as Queensland, under the arch-conservative Newman Government, Victoria under the minority Napthine Government, and Western Australian under the Barnett administration, the fight for gay marriage is a long way from reality. For some of these states at least, the chances of success at a federal level are far stronger than they would be at a state level.

Queensland is a notable example of this, given the fiercely conservative Newman government scaled back civil union rights upon winning the election. Given the overwhelming majority Mr Newman has in government, and the lack of upper house, it is very unlikely the Liberal government will lose power or be challenged on this position any time soon.

In contrast, the Federal Government is far closer to recognising marriage equality. Even within the Federal Liberal party, debate is raging as to at least allowing a conscience vote on the issue. The push for marriage equality is a hot political issue federally, and it is likely that a conscience vote would pass both houses. As such, for homosexual couples in these states, a win for state legislation may just be a loss for them.

The third reason homosexual couples should be hoping the federal government keeps control of marriage is that it turns same-sex marriage into a community issue, rather than a rights issue. By passing the law on a federal level, the rhetoric is that all citizens have the right to equality. Where states are passing the law, this rhetoric changes to one where states are making value decisions for their community. Importantly, it allows states to say ‘same-sex marriage may be ok for that community, but it is not for ours’. This is a massive risk because the gay-rights movement gains the majority of its currency by fighting the debate on the basis of fundamental rights. For fundamental rights to be recognised as such requires a federal body to recognise it.

This again has practical consequences. By allowing states to legislate for marriage equality, proponents run the risk of marginalising the federal government on the issue by moving pressure away from them, or perhaps causing a backlash. This is worrying, given that the federal government still arguably has the ability to repeal this law in the territories by covering the field with either new or retrospective laws. By removing the responsibility of the federal government on the issue, supporters run the risk of being frustrated by an uncooperative federal government. Further, it lessens the value of the marriage. Who wants to be married in one state, but have that marriage mean nothing when they cross state borders?

Gay marriage must happen and will happen. But it will be a significantly better result for proponents of same-sex marriage to concentrate their resources and time on moving one parliament, instead of seven. This will ensure that no states are left behind in the process and the equality obtained will be true equality. No-one wants to, or should be, ‘separate but equal’.