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Denying equality smacks of apartheid

By Alastair Nicholson - posted Wednesday, 7 June 2006


The discrimination against same sex couples embodied in the Act seems to me to run contrary to principles of humanity and decency. It also seems to fly in the face of so much that has been achieved in recent years in countries like Canada, the Netherlands, Spain, Belgium and South Africa, which have recognised same sex marriage. Further, both the United Kingdom and New Zealand have legislated to provide legal recognition for same sex unions, as have Tasmania and the ACT.

I believe that without the recognition of all family relationships, equality - the cornerstone of democratic society - is missing: public acknowledgment of private affections, commitments, interdependencies and identities is denied.

Opposition to this view, apart from the assertions of the religious right, is usually met by confused claims that doing so is a dangerous domino: that it will lead to the demise of the so-called traditional family and the opening up of a Pandora's Box of unintended and undesirable consequences. This was a view repeated ad nauseam by a government spokesperson on a recent Insight program on May 16, on the subject on SBS.

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It seems to me that politicians take themselves far too seriously if they really believe that any legislation they pass will have any effect, one way or the other, on this issue. All that progressive legislation will do, and this is reason enough for it, is to provide that people whose sexual orientation is towards a same sex relationship will be treated equally with the rest of the community so far as the law is concerned.

What must be properly understood is that the real effect of refusing to acknowledge and provide protections to same-sex relationships is to fail to recognise nothing else but relationships and the meanings they give to an individual's life. This current state of the law smacks of society punishing otherwise law-abiding members for a sexual orientation that is, in and of itself, lawful.

And to what gain? Legal denial and intolerance achieve nothing but an insult to the dignity of recognition that every family treasures and has the right to expect in a country which supposedly supports tolerance for peaceful differences among its members.

To continue to ignore the rights of same-sex individuals and their relationships is a pyrrhic achievement of which no government ought to be proud. Denying someone the right to be known as a committed partner to a relationship, simply on the basis of the gender of the partners, is no different to apartheid. To value and respect those who wish to stand connected to each other and accountable to each other in the face of intolerance, is a cause that deserves support.

I value human rights and the principle of equal treatment. These are precious bulwarks against vulnerability and oppression and it is almost axiomatic that the clearest perception of the need for these rights comes from those who lack them.

To my mind, anyone who stands by the values of commitment, relationships and equal protection should support legislative measures that outlaw discrimination and recognise same-sex relationships. Otherwise, they are shareholders in unwarranted fear and prejudice, a stock that, unfortunately, is held dear by too many in this country.

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It is to be hoped that supporters of the rights of same sex couples and their children will continue to press for legal changes of which the recent ACT and Tasmanian laws are a harbinger. It is also to be hoped that a future and more honourable Federal Government will repeal those parts of the Marriage Act that stand in the way of marriages of same sex couples.

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A more detailed discussion can be found in the Melbourne University Law Review Vol. 29 Number 2 of 2005 at 556, entitled "The Legal Regulation of Marriage".
 



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About the Author

The Honourable Alastair Nicholson AO, RFD, QC is the Former Chief Justice of the Family Court of Australia. He is an Honorary Professorial Fellow at the Department of Criminology, University of Melbourne.

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