The Anniversaries

For many years, homosexual couples have been having informal forms of marriage such as commitment ceremonies, ring exchanges, civil unions and domestic partnerships. The change from a personal milestone in their relationships, to demanding legal recognition of marriage in some countries, has certainly become a hot issue.

“In this general social context, same-sex wedding rituals represent a form of political resistance, regardless of how their primary creators (the couples) describe their intentions.”
{Hull, p 73}

If you only listen to headlines, you could mistakenly believe that only gay people get married these days and the rest merely ‘shack up’. This is far from the case, especially in Australia. We will look at a couple of anniversaries, that both happened ten years ago. One established many other wedding anniversaries in its wake; the other made it only a dream for some people, in particular same-sex couples.

Should Australia join the 18 countries that currently have legal, same-sex marriage? {http://www.pewforum.org/2013/12/19/gay-marriage-around-the-world-2013/} Will we ever join this group?

Firstly there are those who regard marriage as too sacred to fall into the hands of homosexuals. Like the famed sociologist Durkheim’s “classic distinction between sacred and profane, Marriage seems to function as a kind of totem for some heterosexuals, a sacred object that must be protected from defiling contact with the profane (same-sex intimacy). Hence the rhetoric about defending, protecting and preserving marriage, without any real specificity about how same-sex couples would actually harm the institution.” {Hull, p208}

A good example of this is the Australian Marriage Forum, with the following appeal to tradition. “Marriage exists in all societies (with only rare aberrations which only prove the norm) because infants at every time and every place need the patient love and nurture of both their mother and their father. All cultures take the biological ‘given’ of the natural pair-bond and reinforce it with customs and ceremony to achieve the social goal of stable families and communities. Historically this has been important for the protection of the pregnant woman and vulnerable children, as well as for the economic viability of the family unit.” {http://australianmarriage.org/clients}

Like the unfortunate Archduke Franz Ferdinand did a century ago, they always think of the children. The ones who are growing up in single-parent families do not have the nurture of both their mother and father, whether through divorce, separation or teenage pregnancy. However, these single parents are mostly heterosexual.

Secondly, there are some gay people who reject the model of traditional heterosexual marriage, just as many straight couples do. In both cases, it should be their right to choose.

Thirdly, there are those who regard same-sex marriage as the pot of gold at the end of the gay liberation rainbow. To them it has become as much of an issue now, as legalisation was in the Seventies and Eighties.

Does it have to be gay marriage? How about the recent repeal of Provocation as a defence for murder, which began with a straight domestic violence and murder case? Now, under the Crimes Amendment (Provocation) Bill 2014 [NSW], “the so-called gay panic defence would also be abolished.” {http://www.smh.com.au/nsw/provocation-defence-should-be-severely-limited-say-mps-20130423-2icu6.html}. Then there are the new bills, beginning in Victoria, to expunge historic gay sex convictions. {http://www.theage.com.au/victoria/victoria-to-expunge-criminal-records-of-men-convicted-over-gay-sex-20140111-30ntq.html}

One question that doesn’t seem to be asked much, just taken for granted, is: how will it improve the lives of gay and lesbian people? Sure they could then have a . . . fairytale wedding, but how about living happily ever after? There is someone’s cynical opinion that sure gays should be able to get married, let them be as unhappy as anyone else.
“Despite the arrival of legal same-sex marriage in Massachusetts, same-sex couples in the United States do not have access to the same legal rights and privileges available to opposite-sex married couples.” {Hull, p73} Sodomy laws were only repealed nationwide, under the case of Lawrence v Texas 2003. {http://www.oyez.org/cases/2000-2009/2002/2002_02_102}

Even in the Netherlands, the first country to bring in same-sex marriage, there is still homophobia. Gay children are much more likely to be bullied at school than straight ones, and some neighbourhoods are not safe for same-sex couples, even if they are married. {http://www.euronews.com/2013/04/01/reflecting-on-12-years-of-gay-marriage-in-the-netherlands/}

How much more then would this be the case in Australia? Here, homosexuality was originally associated with the crowded hulls of ships, chain gangs, convict barracks and Female Factories. There were some harsh punishments in those days; buggery was a capital crime, often commuted to Transportation. Captain Arthur Phillip, our first Governor, commented: “There are two crimes that would merit death – murder and sodomy. For either of these crimes I would wish to confine the criminal until an opportunity offered of delivering him as a prisoner to the natives of New Zealand, and let them eat him.” {Smaal & Moore, quoted in Robinson 2008, p71}

Then there was Colin Delaney, the NSW Police Commissioner from 1952-62. He claimed in a speech in 1958 that homosexuals were our “greatest social menace”.{Irving & Cahill 2010, p323} Under his command, good-looking undercovers were dispatched to the ‘beats’ as agents provocateurs, meaning that arrest rates went through the roof. {Willet @ Robinson, p119} In the meantime, organised crime in the state was overlooked.

As Australians, will we continue to be ashamed our convict past, then the sodomy and homophobia that went with it? Just as they were scandalised by all of this at the Select Committee on Transportation in 1837. Or will we be able to accept our past and move on into the 21st Century future? Only time will provide the answers to this.

In the meantime, we will look at two anniversaries from 2004. Both celebrate 10 years, this year. Only one of these anniversaries would lead to many more for same-sex couples.

THE FIRST ANNIVERSARY

The first country to offer full marriage benefits to homosexual couples, as enjoyed by the smiling bride and groom, was the liberal-minded Netherlands. This law came into effect on the very interesting date of 1 April 2001. {http://www.bbc.com/news/world-21321731} Four couples were married on that day by Job Cohen, the Mayor of Amsterdam, who told them: “There are two reasons to rejoice: You are celebrating your marriage and you are also celebrating your right to be married.” {http://www.cbsnews.com/news/gay-marriage-goes-dutch/}

By 2003, neighbouring Belgium had followed suit. In the United State there was a case going the courts called Goodridge v The Department of Public Health, originally brought by 7 same-sex couples in April 2001. {http://www.glad.org/work/cases/goodridge-et-al-v-dept-public-health/}

Last century there was advocacy for marriage equality in Hawaii and Vermont, which led only to civil unions in the latter. It would be Massachusetts, home the first white settlements in the United States, that also made history in another century. On 18 November 2003, a 4-3 verdict in this case decided that: “Limiting the protections, benefits, and obligation of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.” {quoted in Hull 2006, p10}

So now we arrive at the first anniversary. The first marriage licenses under this decision, were issued on 17 May 2004. {http://www.freedomtomarry.org/pages/history-and-timeline-of-marriage} It was always going to be a fabulous wedding day at City Hall. . .for many people.

The first couple to have a modern-day Boston marriage were Marcia Kadish and Tanya McCloskey, from Malden. {http://www.history.com/this-day-in-history/first-legal-same-sex-marriage-performed-in-massachusetts} All in all, 262 couples were wed that day. {http://en.wikipedia.org/wiki/Same-sex_marriage_in_Massachusetts} Thomas Menino, the Mayor of Boston, commented. “We’ve broken down the barrier. I am so proud of these people. I am very proud to be mayor of this city today.” {http://edition.cnn.com/2004/LAW/05/17/mass.samesex.marriage/index.html}

There were already forces at work to end the honeymoon. Governor Mitt Romney did not approve of gay marriage; neither did former mayor Ray Flynn, Justice Joseph Nolan and some religious groups. They formed an organisation called VoteOnMarriage. Their policy was: “Marriage as the union of a man and a woman is the universal model and predates all nations, religions and laws. The heterosexual marital relationship reflects the fundamental essence of laws of nature and anatomy, and ensures procreation and the nurturing of children.” { http://www.voteonmarriage.org/faqs.shtml}

In Washington, then President George W Bush called for a constitutional amendment to ban same-sex marriage. He was always someone to make war, not love. This was blocked by the US Senate on 14 July 2004. {http://edition.cnn.com/2013/05/28/us/same-sex-marriage-fast-facts/}

In Massachusetts, the bill to amend the state constitution was overturned on 14 June 2007. {http://www.freedomtomarry.org/pages/history-and-timeline-of-marriage} The final vote was 151-45, overwhelmingly in favour of same-sex marriage. {http://www.shrm.org/Conferences/annual/Documents/confsessions/09Ann_Solomon.pdf}

Until 2008, when it was joined by Connecticut, Massachusetts was the only state out of 50 to allow same-sex marriage. In 2004, eleven other states brought in amendments to their constitutions that marriage only applied to the bride and groom. Some even banned civil unions. {http://edition.cnn.com/2013/05/28/us/same-sex-marriage-fast-facts/}

Today, same-sex marriage is recognised in 35 States, as well as the District of Columbia. {http://gaymarriage.procon.org/view.resource.php?resourceID=004857} The people who were married in 2004, over 6000 {http://en.wikipedia.org/wiki/Same-sex_marriage_in_Massachusetts}; will celebrate their tenth anniversaries this year.

THE SECOND ANNIVERSARY

On 27 May 2004, only 10 days after the Massachusetts marriages began, then prime minister John Howard brought in a bill called the Marriage Amendment Act. Attorney-General Philip Ruddock introduced this into parliament, which was to:

− define marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; and

− confirm that unions solemnized overseas between same sex couples will not be recognized as marriages in Australia. { http://www.austlii.edu.au/au/legis/cth/bill_em/mab2004175/memo1.html}

This was clearly a reaction to the recent gay marriages in the US, which were setting news outlets on fire. Then there was the Civil Partnerships Act in Britain, beginning its passage through parliament, giving same-sex couples a marriage like relationship. This passed on 18 November 2004, the most famous ceremony between Elton John and David Furnish. {http://www.legislation.gov.uk/ukpga/2004/33}

As far as Liberal governments are concerned, it always seems to be quite alright for us to help fight Uncle Sam’s wars. Just as long as we don’t pick up any radical new ideas from America, let along implement them.   A major reason given by both Howard and Ruddock for implementing the law at that time, was to ban overseas adoptions by gay couples, as might be implemented by a treaty. Ruddock commented: “The government is fundamentally opposed to same-sex couples adopting children.” {AAP 2004}

With this fine rhetoric of ‘saving’ children, this government proceeded to strip the rights of a minority. They gave them a small carrot: people who lived in a “financially interdependent relationship”, including same-sex partners, could inherit each other’s superannuation tax-free. {Jennet @ Lateline}

What was Howard’s stated reason for this? “We’ve decided to insert this into the Marriage Act to make it very plain that that is our view of a marriage and to also make it very plain that the definition of a marriage is something that should rest in the hands ultimately of the parliament of the nation.   “(It should) not over time be subject to redefinition or change by courts, it is something that ought to be expressed through the elected representatives of the country.” {http://www.theage.com.au/articles/2004/05/27/1085461875956.html}

So now someone needs the permission of parliament, in order to decide who to love, who they wish to spend their lives with? And this in a society that is supposed to be democratic; it sounds like Orwell, 20 years out of date.

Rodney Croome has pointed out that this tactic was often used as a reward for convicts – or withholding marriage as a punishment. More recently, before they were enfranchised in the 1967 Referendum, Aborigines were sometimes forbidden under “protection” laws from making mixed marriages, just like in the American South. An infamous example was Gladys Namagu in 1959. {http://www.abc.net.au/news/2011-07-01/croomemarriage/2778326}

The new bill passed through the House of Representatives fairly easily. Any Opposition from Labor was pretty limp-wristed. Nicola Roxon commented, “Labor has made clear we don’t support gay marriage. Clearly, marriage has a history within Australia already, it is a heterosexual institution.” {http://www.abc.net.au/lateline/content/2004/s1117638.htm} The Marriage Amendment Act was supported wholeheartedly by Family First and the Christian Democrats, led by Fred Nile.

The only real opposition to the bill came from the Greens. Their leader Bob Brown, the first openly gay member of Federal Parliament, described both Howard and the bill as “hateful”. He refused to retract these comments, then also referred to it as the “Straight Australia Policy”. {Wikipedia} “The Greens have labelled both the current and the first Bill discriminatory against the gay and lesbian community and condemned both the Government and the Labor Party for failing to acknowledge the change, within present day society, in the make up of couples.” {http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0405/05bd005}

A straight ally was Senator Andrew Bartlett, of the Democrats, who remarked that it devalued his own marriage. He later brought in a bill to try to reverse it. {http://en.wikinews.org/wiki/Australian_Senator_to_introduce_bill_for_same-sex_marriage}

On 12 August 2004, the Marriage Amendment Act would eventually pass through the Senate, voted 38-6; then it became law.

Not only gay and lesbian groups would protest against the new Amendment. The Hon. Alastair Nicholson QC, former Justice of the Supreme Court of Victoria and then Chief Justice of the Family Court of Australia, gave a speech on the subject to Melbourne University on 16 September 2004. He commented: “In my view, this Act is one of the most unfortunate pieces of legislation that has ever been passed by the Australian Parliament.” {Nicholson 2004, p557}

He went on to explain that there had been no definition for over 100 years, since Federation in 1901. Now the definition used by the Marriage Amendment Act was originally used by Lord Penzance in 1866, in the case Hyde v Hyde: “the voluntary union for life of one man and one woman, to the exclusion of all others.” {Nicholson, p558} In 1866 male homosexuality was still illegal. However Penzance’s definition was inaccurate back then, because there was always adultery, plus the Divorce and Matrimonial Causes Act of 1857.

Justice Nicholson sums it up: “None of the proponents of this legislation seem to have asked themselves whether it is not a bit strange to be falling back on 19th century definitions of marriage when seeking to define marriage in 2004.” {Nicholson, p558}

A more 21st century definition is from the Massachusetts Supreme Judicial Court: ““We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.” {http://www.glad.org/work/cases/goodridge-faq/}

In Australia, brides should probably wear a retro-style crinoline gown, and the groom a top hat. Since 2004 all wedding celebrants, as part of the service, must announce: “Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”, or words to that effect. {http://www.austlii.edu.au/au/legis/cth/bill_em/mab2004175/memo1.html}

SINCE THEN. . .

In 2004, same-sex marriage was something like a tsunami that passes under ships out at sea, without them realising just how big it was to become. However many changes there may have been in various countries in the years since, the Act has effectively contained them from spreading to Australia.   So far, the Marriage Amendment Act has prevented any state or territory from bringing in same-sex marriage.

Although there have been many rallies for marriage equality since, at that time nobody thought of it. They were too busy protesting the Howard government’s involvement in the war in Iraq.

Even civil unions were disallowed under the Howard regime’. In 2006 the ACT would pass the Civil Unions Act {Hay, p10}. This was vetoed, as it would be again in 2007. Only under Rudd’s ALP government, in 2009, would the Civil Partnerships Amendment Bill be passed. This even allowed the happy couple to have a ceremony. {Cook 2010, p115}

The incoming government considered changing the Marriage Amendment Act, but didn’t. Kevin Rudd commented: “We went to the last election being very clear-cut about our position on marriage under the Marriage Act being between a man and a woman.” {http://www.abc.net.au/news/2009-07-29/rudd-firm-on-gay-marriage-stance/1370872} His change of heart in 2013 would be too little, too late.

Julia Gillard was also opposed, mainly because she had a feminist disregard to marriage in general. {http://au.ibtimes.com/articles/567215/20140923/gay-marriage-legal-australia-former-prime-minister.htm#.VI_0Wcm4acx} In 2012 the Greens would put bills through both Tasmanian and Federal Parliament. These were unsuccessful, defeated in the House of Representatives 98-42. Both Gillard and Wayne Swan voted against. {Cullen 2012} However, she has said recently that she believes gay marriage is will eventually be brought in here. {http://www.abc.net.au/news/2014-09-22/gillard-says-same-sex-marriage-a-matter-of-time/5760460}

The closest we have been to same-sex marriage was again in the ACT in 2013, the backyard of the newly elected government of Tony Abbott. He once commented about gay marriage: “I’m not someone who wants to see radical change based on the fashion of the moment.” {http://rationalwiki.org/wiki/Tony_Abbott} In September 2013, the same month he was elected, the bill was introduced into ACT Parliament.

The Marriage Equality (Same Sex) Marriage Act 2013 would pass on 22 October, with a vote of 9-8. {Marszalek @ News Ltd} “This pivotal moment in our history was heralded from the public gallery with cheers, balloons and a chorus of Love is in the Air.” {http://www.theage.com.au/comment/the-age-editorial/act-crosses-the-rainbow-bridge-20131022-2vz80.html}   On that day everyone was feeling bright and gay, regardless of sexual orientation. “There was such universal joy and rapture in and around the Legislative Assembly at midday on Tuesday as the same-sex marriage legislation succeeded that one even half expected the usually scowling statue of Ethos (on the Assembly’s doorstep) to be smiling for once.” {http://www.canberratimes.com.au/comment/joy-as-act-passes-same-sex-marriage-laws-20131022-2vyip.html}

The new Liberal government announced a challenge to the law in the High Court.   However this did not spoil the party – just yet.

On 7 December the wedding bells began. Over the next five days, gay couples would be making history, as the first to marry in Australia. It would become known as the Rainbow Territory and the City of Love, quoting Andrew Barr. { http://www.theaustralian.com.au/news/latest-news/act-prepares-to-debate-gay-marriage-bill/story-fn3dxiwe-1226744206090?nk=bf6a3449b5a078107a4a58e38deff6fd}

On 12 December, the honeymoon was over. The High Court unanimously overturned the new legislation, with all the marriages being annulled.   The only issue which this Court can decide is a legal issue.” {http://www.austlii.edu.au/au/cases/cth/HCA/2013/55.html} The main reason for this decision was the independence of the ACT, as a Territory, under Section 28 of the Australiana Captial Territory (Self-Government) Act 1988. “A provision of an enactment has no effect to the extent that it is inconsistent with a law defined by subsection (2), but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law.” {http://www.austlii.edu.au/au/cases/cth/HCA/2013/55.html}

The court then found that the laws were inconsistent with the Federal Marriage Act, they could not operate concurrently. “The whole of the Marriage Equality (Same Sex) Act 2013 (ACT) is inconsistent with the Marriage Act 1961.” {http://www.austlii.edu.au/au/cases/cth/HCA/2013/55.html}   The reason was not in the original Marriage Act, but the 2004 Amendment, that defines marriage as between a man and a woman.   The laws passed by John Howard had held out against the most serious challenge in the past ten years.

Like the legend of Pandora’s box, when everything is lost the one thing left was hope. The High Courts also rule that the definition of marriage under the Constitution, could be extended to same-sex couples. Particularly Section 51: “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xxi) marriage;

(xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;” {http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html}

Therefore, the only way possible for same-sex marriage in Australia, is if a future government amends the Marriage Amendment Act 2004. This must be done at a Federal level.

We should probably give the verdict on this matter to Justice Nicholson: “One can only hope that a future Commonwealth Parliament will approach the issue in an informed and principled way and repeal this shameful piece of legislation. {Nicholson 2004, p268}

The future? Well that’s a book yet to be opened, a website yet to be clicked.

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2 thoughts on “The Anniversaries

  1. Reblogged this on Dave Z'Art and commented:
    Wonderful piece of research and writing. add tags gay, marriage, love, to the one of gay marriage that you have already used and you will reach more people.
    Did you know that this year, in order for straight people to be able to have civil unions in Britain, that all civil unions in Britain will convert to a Marriage, with the date of the marriage coming into effect on the date that the civil union between 2 people was made. I only found this out on Saturday at a luncheon. Therefore Elton John and David Furnish celebrated their tenth WEDDING anniversary this year. Woo Hoo.

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