Same-sex unions: there’s more than one choice

To legally recognise same-sex unions as marriage by altering the definition in the Marriage Act as proposed, would only serve to create an artificial legal fiction. A Wizard of Oz situation with the government saying, “Your union is not really marriage but here, what you need is a certificate that says it is”.

Similarly, on the issues of equality and discrimination, it cannot be said that the union of a man and a woman is the same thing as a union of any two people of different sex. It is an ‘apples and oranges’ proposition. Equality can only apply when compared as two different types of ‘fruit’.

Yet, same-sex unions, like common law (sui juris) marriages have existed long before any country or state ever provided for legal recognition and the registration of marriages. There are also very good and proper legal reasons for regulating same sex unions.

Indeed, the federal government has already recognised de facto same-sex unions by the amendment in 2009 of eighty-five laws to remove discrimination against such unions in a range of areas relating to matters of taxation, superannuation, health insurance and other provisions.

The fundamental difficulty in recognising same sex unions in legal and factual terms, is that there has never been a unique or generally recognised word for that relationship.

But the impediment of not having its own word for its own kind of relationship is not a warrant for same-sex unions to claim to be something they really are not and can never be. Beyond the wedding ceremony that is as far as the comparison goes.

The practical answer is for same-sex unions to be legally recognised by way of their own separate Act with their own definition and, in order to overcome the lack of an appropriate and unique term for that form of enduring commitment, to provide that whilst they do not constitute marriage within the definition contained in Part 1, section 5(1) of the Marriage Act 1961, it shall not be improper nor unlawful for such unions to be referred to or described by the word “marriage”.

That too may be seen as a legal fiction but marriage, like many other words found in dictionaries, is used in different senses and in various contexts. We use the word to describe the joining together of many kinds of personal and impersonal unions without impugning its special meaning.

Attempts by some states and territories to recognise same-sex unions by way of separate legislation have failed for two reasons: the Constitution provides for marriage to be the sole jurisdiction of the Commonwealth and because such legislation has set out to deem same-sex unions tobe marriage rather than to make it lawful to use that term as a general description of the relationship.

Pragmatically, the issue as it relates to objections on religious and moral grounds, has been lost within the wider community on the basis of compassion and fairness. Politically, it will be lost, either now or later, due to its persistence and its growing acceptance on the cynical basis of its worth in terms of votes and business dollars.

That being the situation, in any choice of approach to the resolution of this issue, whether by way of a referendum or a vote by politicians, the alternative of recognising same sex unions in their own separate legislation, should be included and considered as an appropriate compromise.