Chasing the Marriage Certificate: Running the Right Way?

The campaign for the legal recognition of the marriages of queer couples has entered a strange place since the inequalities in Australian relationship laws between same-sex and heterosexual couples were largely removed by the federal government in legislation that came into full effect in June 2009. The campaign is now entirely centred upon the marriage certificate, the one legal benefit given to heterosexuals but not queers. But that certificate will entail no new rights for its queer bearers beyond the possession of that piece of paper.

It is a purely symbolic campaign. Even more so than the campaign for an apology to the stolen generations since that was accompanied by demands relating to greater social services and compensation. Such symbolism is worthwhile according to marriage equality campaigners because of a hope that it will reduce homophobia.

Whilst this claim is, in itself, worthy of criticism, attention should also be brought to the justification and promotion of government intervention into people’s personal relationships through the laws surrounding marriage that occurs in this campaign. This should be questioned if only for the fact that a key lesson of queer activism of the past has been that government intervention into the sexual conduct of consenting adults is not legitimate.

That principle suggests that with respect to laws surrounding marriage queers would be highly consistent with previous activists in demanding that government intervention into the personal relationships of individuals through these laws be lessened. In contrast the marriage equality campaign is asking the government to use the marriage certificate as a way of signalling to the community those relationships that are to be “recognised and respected”, to use the words of Parents and Friends of Lesbians and Gays (P-FLAG) in their open letter to the government regarding the issue, and are thereby promoting as legitimate such intervention.

This disjuncture might be put down to the failure to recognise marriage as a cultural rather than natural institution. Such misrecognition is evident for instance when Rodney Croome of Australian Marriage Equality asserted, “marriage is a universally understood institution.” Such errors are not uncommon in this campaign and so it is perhaps prudent to run through the facts and achievements of the campaign around queer marriage.

The most persistent error in the campaign involves the question of the legality of same-sex marriage in Australia. Roz Ward lamented in a leftist magazine that “the fact that same-sex marriage is illegal in Australia is a stark indication that our sexuality is not accepted”. Indeed it would be if it were true, but to this day not a single person has been gaoled or fined for marrying a person of their same sex. “Governments have taken away from you the choice to marry” was an assertion that Richard Di Natali, Greens Federal senate candidate for Victoria, made in front of rally of around 2000 in March this year. His vow to give back that choice as part of his vote for me speech whilst not supported by reality may furnish him, nonetheless, with some votes due to the lack of public clarity on the issue.

Whilst marriage between same-sex couples is not recognised as marriage for the purposes of the laws of the Australian government it is not illegal to marry or be married to a person of the same sex in Australia. It is just as legal as the practice of marrying a deity that the Catholic Church demands of its priests.

In an article in the Sydney Morning Herald Jacqueline Tomlins claimed that the ring she has to symbolise the marriage she entered into overseas with her wife is meaningless in Australia. But, if Mrs Tomlins were to excuse philandering to her partner because of the lack of recognition of their marriage on the part of the Australian government, it might be said she has overlooked something. Whilst it is true that even if there were laws against adultery Jacqueline would face no punishment she might not find the same meaninglessness at home.
Under miscegenation laws in the US it was illegal for two persons of different racial backgrounds to marry. If they did marry they were punishable under the law. This is not the case for queers in Australia. Whilst the government will not consider the married as married for the purposes of its laws it will not traumatise them as the state of Florida did when it arrested whose it and whose it for being married and of different racial backgrounds.

In Australia the issue of same-sex marriage has been about extending the benefits and responsibilities that government accords certain relationships that it defines by the term marriage. These benefits and responsibilities are offered to both those that have been married and those that are living in a marriage like relationships. Between the two categories there is now very little difference. Prior to the inclusion of queer couples under the ‘marriage-like relationship’ banner vast swathes of rights and responsibilities given to people living according to particular customs were denied to queers solely on the basis of their queerness.

In the case of intestacy laws, those laws concerning the disbursement of a deceased’s estate where there is no will, a same-sex partner was not entitled to receive any part of the estate. In most circumstances, if there were no surviving relatives closer than cousins the estate would go to the state. This would be true even if the couple had signed a document saying they were living as a married couple. It would be true even if the couple had found a priest that would declare them married under the eyes of god.

Most significantly, queers were denied the legal protection afforded by the state in reinforcing private agreements created concerning the care of a child. A couple could not be granted the authority to share the care of a child. If a child was raised by a queer couple only one parent would have been able to hold guardianship. In the case of the death of that one parent the other would be without the protection of the courts in maintaining their relationship with the child. That relationship would continue only by the grace of the relative who was granted custody.
It was benefits such as these that were denied queer couples in their exclusion from the legal definition of marriage. This problem has been overcome thanks to the Rudd government’s extension of such benefits to same-sex couples via their inclusion under the banner of ‘defacto’, ‘domestic’ or ‘marriage like relationships’. This was done through legislation that was passed in late 2008 and came into full effect in June 2009.

The only obstacle that is left is procuring a way for queer couples to more easily prove their status as a couple. With the Labor government’s commitment in the senate review of the marriage equality amendment act 2010 to rectify this via a civil partnership scheme and Tony Abbott’s statement that he was “very happy to look at” civil unions, consensus on such a move seems very close. Somewhat ironically the major obstacle appears to be the insistence on the part of marriage equality campaigners for the marriage certificate.

There has been a great victory here. The government no longer views the prevention of the queering of Australia through the raising of children within queer families as a legitimate motivation for government intervention.

It is easy to forget that this victory has been won. A look at the conservative position as it appears in the senate report on its inquiry into the Marriage Equality Amendment Bill 2009 makes the nature of this victory starkly apparent. It is also a good way of describing where the debate is at present.

The primary argument of conservatives has been centred upon marriage as a justifiable intervention of the state into the personal relationships of people. In general, they argued, government should not interfere with the personal relationships of people but marriage as it figures in law held a justification for such intervention. Mr Timothy Cannon of the Australian Family Association put this succinctly when he stated to the committee:
“What we are considering here is marriage as a public, legal institution as opposed to a private institution. Marriage could exist without the state’s public intervention, but this is a circumstance where the state declares that there is a public institution. That is something we tend to take for granted, but I would suggest that we should not, especially when you consider that it is not normal for the state to intervene in private relationships.”

When considering the extension of marriage to queers the role of raising children is seen as a major conflict in the justification of such state intervention. The common detraction for opponents of past and possible future changes is the prospect of the state offering benefits that would encourage people to raise children outside of a mother-father-child relationship.

The senate report details many arguments concerning such child raising issues. In fact, other than those that focus purely on the value of tradition, conservative arguments overwhelmingly concern themselves with the ‘procreative aspect’ of marriage. These concerns boil down to two. Firstly, that children raised within mother-father-child relationships are more prosperous and secondly that children raised within such relationships are instructed in ‘healthy’ gender identity. The report summed up the second type of argument with this:
“While not all submitters felt that role models necessarily needed to take a particular ‘parent’-like role, many submitters emphasised the important differences between male and female and the role they play in modelling sexuality and healthy gender identity to children.”

In the first argument the worry is not directly associated with queer couples. In the evidence that is presented the inequality in conditions relate to the effects of homophobia in society and the lack of benefits such relationships receive in comparison with the mother-father-child one. The worry is not something of direct relevance to the sexuality of the parents.

This is not so in the second concern. In this case the role modelling of the parents is directly related to their sexuality since their sexuality constitutes the role modelling. Thus, the second concern is the primary obstacle for conservatives to allowing queer couples to share in the benefits the state accords to some relationships.

What this amounts to is homophobia. For conservatives a justification of the states intervention into a person’s personal life via the laws surrounding marriage is that it encourages them to raise children in heterosexual environments. To put it brutally, the conservative argument was, at it’s core: same-sex couples cannot be granted the benefits of marriage because a key justification of such intervention is the encouragement of the raising of children with the assumption that the world is heterosexual. To put it another way, conservatives assert that the raising of children with the assumption of homosexuality cannot be support by government.

For some conservatives the encouragement of raising children with ‘healthy’ gender roles was the only justification for such intervention into the personal relationships of individuals. Mr Christopher Meney reported to the committee on behalf of the 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.

Doubtless this was a bit of hyperbole. There are probably many other justifications for such intervention that the Catholic Church holds, the control of promiscuity for one.

It was this homophobic argument that the Rudd government rejected when it extended the benefits accorded to heterosexual couples in marriage or marriage like relationships to queers.

Perhaps for reasons of political expediency this was done simply by the inclusion of queer couples under the umbrella of marriage like relationships. Although almost indistinguishable in terms of legal treatment between marriage as such the consequence is that same-sex couples have been denied the benefit of holding a marriage certificate.
The question before campaigners is now: is the campaign for marriage equality worth it? Overwhelmingly campaigners have decided yes it is still worth it and have proffered two reasons for that conclusion.

Firstly, it is suggested that the marriage certificate will add something more to the benefits already accorded and the recognition being proposed in civil union schemes. “A marriage certificate puts our rights beyond question” is how Alex Greenwich of Australian Marriage Equality puts it. This is an argument that has it’s roots in a notion that the constitutional division between marriage, which is a federal responsibility, and schemes such as civil-unions, which are a state responsibility, implies greater guarantees in the federal laws. But this is not something that is absolute. It may be true that some states are more homophobic than the federal government but it is also true that the federal government is more homophobic than some states.

The other argument, the one that is dominant, suggests that the campaign is worth it because the symbolism of the marriage certificate will reduce homophobia. For Rodney Croome of Marriage Equality Australia “it will be the strongest message our leaders can send out about the equal value of same-sex love.”

I found a problem with this argument in light of the fact that “homophobes hate queers because they are queer not because they are unwed.” Whilst the arguments against the extension of the marriage certificate are homophobic and a victory would once again be a demonstration of this government’s rejection of them it would not result in any decrease in homophobia.

As is repeatedly demonstrated, the government’s assertions that homophobia is not a valid principle in government have no effect on the hatred some hold in their hearts. As this author previously pointed out, even if marriage certificates were obtained by queer couples it seems unlikely that homophobic churches would then decide that they would marry queers.

The law does not decree value. Society does. The law may have the power to distribute the resources of society in particular ways that strengthen certain parties but it does not have the power to command that those parties be valued.

If there is movement against homophobia as a result of the campaign it will not be because of the marriage certificate but because queers have been publicly visible and in contact with people as queers in society. The relationship between the campaign and its goals can thereby be described as somewhat disjointed.

In the pursuit of getting queers out there and loud and proud some facts about the campaign could be forgotten but surely there are better ways of creating a public presence. It might be better to pursue some more concrete objective, if only for the virtue of honesty.

But there is more reason than just the emptiness of current demands that suggests that it is time for the Marriage Equality campaign to move on. In order to shore up its objectives the campaign has increasingly become focused on reinforcing the role of marriage in Australian law.
Whilst the legal changes they seek will have no impact upon the prejudices of society their promotion of the significance of marriage will. It is promotion of marriage as an indicator of those relationships that are deserving of “respect and recognition.” Having won the battle against the idea that homophobia is a legitimate reason for government intervention the continued pursuit of the marriage certificate is now merely an exercise in the promotion of the principle that the state should have a role in determining those relationships between consenting adults that are legitimate and those that are not.

And it is the promotion of a specific form of relationship as worth of respect and recognition. For Alastair Nicholson writing in the Melbourne University Law Review the benefits attributed to marriage in Australian law are about promoting a specific type of relationship that can be understood in terms of the Christian tradition of western marriage. Nicholson warns that this must not be forgotten because it is an incursion of religion into government.

It might be suggested that campaigners are only seeking for queers to gain the choice of getting married, the choice of joining the Christian tradition of the family. This ignores the fact that queers are not denied marriage but the ability to hold a marriage certificate, to have a priest say: “I am duly authorised by law to solemnize marriages according to law” before he or she pronounces the couple wed. Since to declare that one deserves something is to declare that it is just, the quest for these words to be said at the marriages of queers is a quest in support of the legitimacy of laws that intervene into relationships.

It would be fair to say that a campaign that involved queers being loud and proud in opposition to any benefits accorded to a type of sexual relationship between consenting adults would be far more in keeping with the principle that the government has no legitimacy interfering in the sexual behaviour of consenting adults.

It would be an attack not just on the inclusion of the definition of marriage in our laws but, and more importantly, an attack on the significance that this relationship is given across the legal spectrum. It would be an attack on the validity of specific cultural practices taken as natural assumptions and applied across the entire population discriminately. It would be an attack on the validity of assumptions such as the natural authority of biological parents, evident for instance in the consideration the Family Court must make for the principle of ‘shared care’, and of assumptions such as the financial obligations of the members of a nuclear family.

The financial obligations contained in the Christian tradition of marriage are foisted on all low-income people through the efforts of Centrelink. If one is judged to be a member of a couple, in a marriage or marriage like relationship, the assumption is made that you hold financial obligations to each other and will work together in the interests of the efficiency of the household. Payments are reduced accordingly. Opposition to situations such as this is what might constitute an approach to marriage laws consistent with the principle that the sexual lives of consenting adults are not a matter for government intervention.

When Andrew Bolt presented this as an opportunity arising out of the extension of the rights of marriage to queers Australia Marriage Equality was quick to refute it as a possibility. Bolt suggested that Islamic polygamous marriages would be next to receive equal recognition with Christian marriage since “In both cases it’s about consenting adults, right?” It was denied as an option by AME because “There are also important legal, social and cultural limits on freedom.” Surely if the relationship obeyed the law then whatever the social and cultural terms of the relationship are is inconsequential? Apparently not for AME, for them certain social and cultural practices need to be supported over others in the relations between consenting adults.

At present marriage equality campaigners are asserting that entry into marriage is the highest display of love of our society and it is being asserted that the highest form of love is roughly equal to the kind of relationship denoted by marriage in the Christian traditions of Western Europe. This would be perfectly fine if it were not for the fact that it was also being asserted that it is good and proper for the government to be making such decisions through the recognition of this particular form of relationships as especially deserving of respect and recognition as well as the other benefits that it accords such relationships. If the interests of queers lie in a society ruled by laws that recognise that the sexual conduct of consenting adults is not a legitimate domain for legislation then the Marriage Equality campaign is now running against the interest of queers.


About barkingcoins
This author is just another fucking dickhead.

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