Sunday, 29 November 2009

Senate Committee Rejects Same Sex Marriage- on party lines

The Senate Legal and Constitutional Affairs Committee has rejected the attempt by the Greens to allow same sex marriage- on party lines, with both Labor and Liberal senators voting against the measure.

The report of the committee [PDF] did however suggest that:

  • the Government review relationship recognition arrangements with the aim of developing a nationally consistent framework to provide official recognition for same sex couples and
    equal rights under federal and state laws.
  • the Department of Foreign Affairs and Trade issue Certificates of Non-Impediment to couples of the same sex on the same basis as they are issued for couples of different sexes.

The Committee stated that it agreed with opponents:

that the current definition of ‘marriage’ in the
Marriage Act 1961 is appropriate, other types of relationships play an important part in Australian society and deserve recognition. For this reason, the committee’s
recommendation not to alter the definition of marriage should not be taken
as a lack of support for same-sex couples. However, the committee considers
that the current definition is a clear and well-recognised legal term which
should be preserved. The committee recommends that the Bill not be passed.

Constitutional limitations

The committee reported:

concerns about the constitutional validity of the Bill were raised during the
inquiry. The Gilbert and Tobin Centre of Public Law reminded the committee that,
while section 51(xxi) of the Australian Constitution gives the Commonwealth
Parliament power to makes laws with respect to 'marriage', that power is not
further defined by the Constitution, and the power may or may not extend beyond
its current terms as a 'union between a man and a woman to the exclusion of
all others voluntarily entered into for life'.
The Gilbert and Tobin
Centre suggests that the High Court could adopt at
least 2 different
approaches to defining marriage for the purposes of the Constitution.
If the
Court were to look to the intentions of the framers of the Constitution, it may
be persuaded that the Commonwealth's power is limited to marriages of two
different sexes. However, drawing on comments by Justice McHugh in the Singh and
Wakim cases, the Gilbert and Tobin Centre observe that:
…it might be argued
that gender is not central to the constitutional
definition of ‘marriage’,
which is instead focussed upon the commitment of
two people to a voluntary
and permanent union. This would be an example
of an evolving interpretation
in which the Constitution retains its essential
meaning while accommodating
later understandings as to what may fall
within those concepts. The fact
that a same-sex union was not within the
intended meaning of ‘marriage’ 1901
need not preclude such an
interpretation today.
The Gilbert and Tobin
Centre concludes that:
On balance, it cannot be said with any great
confidence that the High Court
at the present time is likely to find the
Commonwealth possesses legislative
power to permit same-sex unions under
section 51(xxi). Indeed the most
likely conclusion is that the meaning which
is currently employed by the
Marriage Act represents the full extent of the
Commonwealth's power.
The Centre goes on to a similar conclusion in respect
of the external affairs
power (section 51 xxix), but also find that the
Commonwealth could safely enact laws
for same-sex marriage were the states
to refer their powers to the Commonwealth to
do so, concluding that:
Commonwealth can then use this referred power to make laws for
marriage under section 51(xxxvii). If the Commonwealth and all
States were
in favour of providing for same-sex unions, this would be the
simplest and
most certain constitutional method of achieving this.

Impact of marriage on children

The committee reported:

The Australian Institute of Family Studies (AIFS), an Australian Government
Statutory body established to conduct research into the effects of
programs on family wellbeing, has published a number of research
papers which
touch on issues relating to same-sex parent families. One
important feature of the
AIFS research relates to the significant diversity
in the make up of families with samesex
parents. In a research paper
published in 2003, the AIFS found that more same-sex
parent families:
…are choosing parenthood within the context of their same-sex relationship
through a variety of means including donor insemination and other assisted
reproduction procedures, adoption or fostering. Thus, the extent to which
family members are related biologically can differ (that is, one parent may
or may not be the child’s biological parent). The large proportion of
children in current gay and lesbian families are likely to have been born or
adopted in the context of a heterosexual couple relationship that later
The AIFS, in that paper, also discussed concerns by some in
the community
about the potential negative effects of being raised in a gay-
or lesbian-headed family,
particularly in relation to children's gender
identity, their personal and social
development and the harm resulting from
family disruption (on the assumption that
gay and lesbian relationships are
more short-lived than heterosexual relationships).
The AIFS found that most
literature suggests that children raised by same-sex
parents do not show
poor adjustment when compared with other children. However:
…much of the
available research has involved small, unrepresentative
samples that are
predominantly well educated, middle class and American.
The degree to which
results reflect sampling biases of the research, and
their applicability in
the Australian context, are thus difficult to evaluate.
The committee
recognises that there may be insufficient data collected within
Australian context to draw definitive conclusions about any impact that same-sex
parenting may or may not have on children. This lack of data may also make
difficult to determine what factors might contribute to any outcome
observed in children in same-sex parent families and whether
those factors are a direct
result of the particular family structure.

Equality: the case against separate but equal

The Committee stated:

Perhaps the most prominent argument put by those in support of the Bill
centred on the need to treat people as equals, regardless of their sexual
preference, and
to recognise and respect the equality of a commitment
between people of the same-sex
and people of different sexes.1 A number of
witnesses referred to the recent reforms
by the Government aimed at
redressing the inequities, and all were in support of them.
witnesses in support of the Bill predictably went on to argue that the
reforms did not go far enough.
Dr Paula Gerber from the Castan Centre
for Human Rights Law, for example,
submitted that:
There have recently
been a suite of reforms that have removed
discrimination against gays and
lesbians in the areas of taxation,
superannuation and social security—the
last bastion is marriage. In
accordance with international human rights law,
principles of non
discrimination and equality, this too must be addressed.
Civil unions and
domestic partner registries are not sufficient. They are
the equivalent of the
‘separate but equal’ response in America in the era of
segregation, and we
know from that time that

Mr Rodney Croome,
representing Australian Marriage Equality (AME),
observed that:
Marriage, like every social institution, changes to keep pace with changing
social attitudes, and it is clear from the evidence we have heard this
morning that a majority of Australians believe marriage today can
encompass same-sex relationships. As I said earlier, Australian public
policy is heading in the same direction with the recognition of same-sex de
facto marriages. Marriage can and should change to reflect what we
understand committed, loving relationships to be. If it does not, it becomes
irrelevant and fossilised. In my mind, what degrades and demeans marriage
is the fact that we keep it petrified at a certain time rather than allowing
it to

...The committee notes evidence cited by Australian
Marriage Equality that
increasing numbers of same-sex couples are choosing
to raise children. Research from
Professor Jenni Millbank in 2002 found
Surveys of gay men in the USA have suggested that around 10% of gay
men are parents. American and Australian surveys of lesbians and NZ
census data suggest that between 15-20% of lesbians have children.
Australian surveys suggest that this proportion is likely to increase in the
next 5 years as many lesbians also indicate that they are planning to have
children in the future.


Mrs Shelley Argent, representing the Parents and Friends of Lesbians and
Gays (PFLAG), was one witness who disputed the view that comparison between
heterosexual and same-sex unions was fair or helpful. Mrs Argent observed
that samesex
… are often coming from a situation where
they are already living under
pressure. A lot of them do not have family
support and their partners are not
welcome in the family home, so of course
that is going to put pressure on
the relationship. If you have to go home
alone and you cannot take your
partner with you at Christmas time, of course
that puts pressure on the
relationship. Then you also have this societal
expectation, even from some
parents, that the relationship will not work
because it is a same-sex one. I
just think that is insulting…It is all about
respecting them as individuals and
respecting their relationship.

Notwithstanding the difficulties in gauging relative levels of commitment, Ms
Dane spoke to research from jurisdictions which allowed same-sex marriage
suggested that marriage enhanced the level of commitment felt by
same-sex couples.
Ms Dane reported that:
Not surprisingly, studies
involving countries and US states that have
extended the marriage right show
marriage benefits same-sex couples in
much the same way as it has been shown
to benefit opposite-sex couples.
For example, a recent study by Badgett et
al involving 552 married samesex
couples in Massachusetts found that close
to 75 per cent felt that
marriage had increased their commitment to their
spouses. Seventy-five per
cent felt more accepted by their community as a
result, including by their
siblings and parents. Of those living with
children, over 90 per cent felt that
their children were happier and better
off as a result of their marriage.19
Rev. Nettleton submitted that the
argument made by opponents of same-sex
marriage about levels of commitment
disclosed an element of internal inconsistency:
To criticise the homosexual
community, as many do, for its alleged
promiscuity while at the same time
working to deny them access to the
social structures that encourage and
support fidelity for the rest of us is
surely disingenuous.

Same-sex couples' desire for marriage

Opponents of the Bill argued that the call for marriage among same-sex
attracted people is coming from only a vocal minority within the gay
community. In
response, Ms Dane observed that:
If 10 per cent or 20 per
cent of same-sex couples wanted to be married, that
should be enough because
it is about having the choice. The same would
apply if, all of a sudden in
time to come, only 30 per cent or 40 per cent of
heterosexual couples chose
to marry. Would that be a reason to abolish
marriage? People still need a
choice. So I have not really gone down the
path of the numbers for that
argument; I have only stated this to try and
dispel the myth out there that
I frequently hear that same-sex couples are
promiscuous and do not really
want to marry, and that is not true.
Dr Sifris agreed with Ms Dane:
A recent study shows that a lot of same-sex couples want that option to
marry. Once again it comes back to options and choices. If heterosexual
couples have the option to marry, the option to register, the option to do
nothing, same-sex couple should have that same choice. It is a question of
discrimination. Options and choices.

Family members of same-sex couples also took the view that same-sex
were no different to those of opposite sex. These views are well highlighted
by Ms Annette Naylor, who submitted that:
…Both of my daughters are in
relationships and are engaged to their
respective partners. As a mother, I
am very fortunate that they have each
found such wonderful partners, who
love and respect them…I have always
loved and treated both of my daughters
equally. They have both grown into
beautiful, strong and intelligent women,
whom I am extremely proud of.
However, the eyes of the law currently do not
see one of my daughters as
equal. Despite the fact that I attended each of
my daughter’s engagements
last year, one of my daughters cannot get married.
The reason why my
eldest daughter cannot get married is because she is gay
and in a same-sex
relationship. She is no different and no less of a person
than my youngest
daughter. Her sexuality does not define who she is and when
I look at her, I
do not see “my gay daughter”… I see my daughter. Her
relationship is no
less loving, no less committed and no less equal to her
sister’s relationship.
How will allowing my eldest daughter to marry
undermine my youngest
daughters’ marriage? As a mother, I want to attend
both of my daughter’s
weddings. I want to be there for both of my girls
during one of the most
significant moments in their lives. I want them both
to be treated as equals
in the eyes of the law, just as they should be…

A universal language of love and commitment

Mrs Argent submitted that:
A marriage ceremony puts the same-sex
relationship into a context
everyone is familiar with and has the potential
to transform what the couple
means to each other in the eyes of the family,
friends and society in general.
For many parents it will also take the sting
out of their son or daughter
identifying as lesbian or gay, because one of
the main concerns parents
experience is the loss of the tradition of having
the marriage option for their
child. For many this is a huge source of
disappointment. For others it can
also help the family come out and come to
terms with their sexual
orientation in a positive setting. Supporting
friends and family bearing
witness to the ceremony certainly helps to
strengthen the couple’s bond and
show the relationship as meaningful in
Mr Croome added that:
[M]arriage is an institution
through which partners find connection and
belonging not only with each
other but within their families and within their
communities. That is why
marriage traditionally and conventionally creates
kinship. We have terms
like brother-in-law and mother-in-law. It is why
conventionally at wedding
ceremonies those present are asked if they assent
to the marriage. It is not
simply about the partners, as important as their
bond is. It is about a
public recognition of that and the creation, like I said,
of connection and
belonging. Marriage provides us with a universal
language of love and

In seeking to contrast the benefits of marriage over those
associated with civil
unions, Mr Croome concluded that:
The repeated
complaints of partners is that their status as civil union
partners is not
recognised or understood by key agencies—health insurers,
schools or even
government agencies—and certainly not in social discourse
by their families,
friends and neighbours. So while civil unions might grant
those partners
equal entitlements as married partners in practice they are
often denied
those entitlements by authorities who are ignorant of what a
civil union is
or who are deliberately discriminatory… but many of the
partners I have
spoken to say that, even though they are guaranteed by that
registry the
same spousal rights as married couples in Tasmanian law, often
that is not
respected by state authorities, by health insurers, by schools or
it might be simply because there is not an understanding of what

International Human rights law

The Australian Human Rights Commission submitted that:

Equality is a fundamental principle of international law. The Commission
believes that a human rights analysis based on the principle of equality
supports the recognition of same sex marriage.
Dr Gerber went on to argue that, in respect of couples with children,
Australia's international obligations compel the recognition of a
relationship between
a child's parents on the basis that to do so is in the
child's best interests:
Same-sex couples are now having children.
International human rights law
recognises that the family is the fundamental
group unit of society and
deserves special support and protection. Article 2
of the Convention of the
Rights of the Child protects children from
discrimination on the grounds of
their parents’ status, and that status
includes their sexual orientation. The
UN Committee on the Rights of the
Child has expressly stated that it is
concerned that discrimination based on
the sexual orientation of the parents
impacts negatively on the children.
The Convention on the Rights of the
Child also requires that any decision
that impacts or affects children must
be made with the best interests of the
child being a primary consideration.
Prohibiting a child’s parents from
marrying is not in the best interests of the
child. All children deserve the
chance to grow up in a stable and loving
home with parents in a relationship
that is publicly recognised and
respected. There is extensive empirical
research…that says that children
raised in same-sex families are not
disadvantaged by the fact that their
parents are of the same sex, but what
will disadvantage them is when those
parents are discriminated against
purely on the basis of their sexual
When asked about
whether Australia is in breach of its international obligations, the Hon.
Branson QC, President and Human Rights Commissioner, indicated
that it was
unclear whether either passage or non-passage of the Bill would
place Australia in
breach of the law:
This is an area where
international jurisprudence is still developing. I do not
think it can be
firmly said one way or another at the moment whether there
is an
international obligation to allow same-sex marriage. But as increasing
numbers of jurisdictions do so, it may be that international law is moving.

Failure to recognise overseas same-sex marriages

Dr Gerber concurred that Australia was in breach of its obligations, adding:
We are clearly in breach of that treaty. We even recognise legally
performed polygamist marriages from Saudi Arabia and other such
countries out of respect for our international obligations under the Hague
convention. Professor Hilary Charlesworth referred to Australia as being
‘Janus faced’. We present one face to the international community as an
upholder and respecter of international human rights law by ratifying all
these treaties and saying we are a worthy, human rights respecting country,
and we are seeking a seat on the UN Security Council. But domestically it
is the opposite in many cases, with children in immigration detention
centres and our treatment of Indigenous Australians, and you can now add
to that our treatment of sexual minorities. Internationally we are saying:
‘We are going to uphold these laws. They are good, just laws; we agree
with them,’ but domestically we are ignoring them.
Dr Gerber also pre-empted any argument that recognition of marriages
conducted overseas would provide a loophole through which Australian
couples could be married offshore and be recognised at home,
pointing out that many
countries require at least one party to a marriage to
be a resident of that country before
the marriage can take place.

Certificates of non-impediment to marriage overseas

In addition to Australia declining to recognise same-sex marriages conducted
overseas, the committee's attention was drawn to an apparent policy of the
Government to decline to issue a certificate of non-impediment to same-sex
who wish to marry overseas. These certificates are usually required
by foreign
governments before a marriage can be solemnised. Australian
Marriage Equality
submitted that:
Since the end of 2005 we have received
a steady stream of complaints from
Australians seeking to marry their
same-sex partners overseas for whom the
Government’s refusal to provide a
CNI has caused immense
frustration…We understand that the Dutch Government
has responded by
waiving the CNI requirement for Australians entering
same-sex marriages.
We have been told the only other nationality it does
this for is
Zimbabweans…our understanding is that CNIs are issued to
establish that
there is no impediment to an Australian marrying overseas,
not to establish
there is no impediment to the recognition in Australia of
the marriage they
intend entering. This is confirmed by the documentation
publicly available.
For example, the application form for an Australian CNI
asks the applicant to confirm they are not already married to another person in Australia. It does not ask if they seek to enter a same-sex marriage… Our understanding of the role of CNIs is also supported by the international experience. Other
request CNIs from Australia to ascertain whether there are
impediments to
them solemnising marriages involving Australian citizens.
Chief amongst such
impediments are whether the Australian citizens in
question are already
married in Australia and are of marriageable age.
Foreign governments are
aware of the discriminatory nature of Australian
law, and are not seeking
further information about such discrimination
because it is not relevant to

Opposition to the change was led by the churches:

Both the Catholic Dioceses of Sydney and Melbourne, in evidence given to
Committee, emphasised how the proposed definition of 'marriage' was a
fundamental departure from the acknowledged and agreed definition used by
other culture or society across time:
Marriage has always been
understood—even in very ancient societies—to
be between a man and a woman.
Even though certain forms of sexual
behaviour have been tolerated—and
widespread in some cultures—it has
never been seen as marriage.

The kind of proposal that is embodied in this… legislation is unheard of in
any society, because here we are, as it were, going for the jugular. This
a new, completely novel idea of what marriage is—which is not found in
any of the societies of the world.
The Australian Christian Lobby,
while voicing support for the removal of
unfair discrimination in
Commonwealth legislation, opposed any widening in
definitional scope. The
ACL argued that broadening the definition would dilute the
meaning and value
of the term beyond what is desirable:
One of the ways to ruin something is
to change the meaning of the word…
It will take it away from being something
between a man and a woman… A
homosexual relationship is not a marriage, it
cannot be a marriage, it should
never be described as a marriage.

Marriage and children

The Catholic Diocese of Sydney submitted that the State has always
recognised the public institution of marriage because of the unique and
contribution of the marital relationship to the common good:
The primary reason why nation states have been interested in marriage and
why it has attracted public support is its procreative aspect, encompassing
the generation and raising of children.
It is a union that is
publicly recognised and treated as special, distinguished
from other types
of relationships because of its unique capacity to generate
children and to
meet children’s deepest needs for the love and attachment of
both their
father and mother.
So important was this aspect of the discussion, according
to the Catholic
Archdiocese of Sydney, that:
…the state cannot grant the
legal status of marriage to same-sex unions
without failing in its duty to
promote and defend marriage as an institution
essential to the public good.

The law as a symbol

A final aspect of the discussion of the State's involvement in regulating the
marriage relationship related to the educative and symbolic role of the law.
Catholic Diocese of Sydney provided a useful summary:
The law sends
social messages, and it sends them to the community writ
large. It does not
send a message to just an individual family there, an
isolated individual
there; it sends it out to all the community: ‘This is what
we as a society
think family life is now about and marriage is about.’
The Catholic Diocese
of Sydney went on to note that, by passing this Bill, the
State would imply
that it is unnecessary and superfluous for children to have both a
and a father:
It is contrary to everything we intuitively and sociologically
know about
effective parenting to claim that mothers can father just as well
as men and
that fathers can mother just as well as women…
It does not
follow that, because some parents courageously succeed in the
difficult job
of raising children without a spouse, marriage is no longer the
best place
for children to be nurtured and loved. The state has always given
special recognition and support above all other sexual and

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