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The legal ambush that sank gay marriage in Tassie

Tasmania’s upper house was evenly split on a gay marriage bill before voting it down last month. Gay marriage campaigner Rodney Croome explains the last-minute legal ambush which changed minds.

Hopes of Tasmania’s Parliament legalising gay marriage were dashed recently when the upper house voted down the bill. Members whose votes were crucial in defeating the Same-Sex Marriage Bill said they voted against the bill because of constitutional concerns, in particular that the bill would probably be defeated in the High Court at great cost to the state.

But what information did they rely on to arrive at this conclusion?

I’ve written previously about how serial anti-gay campaigner (and ex-Liberal Senator) Guy Barnett lobbied upper house members against the bill because “marriage is a federal issue”, even though he had previously suggested it was possible for states to enact same-sex marriage laws. But what seemed to carry the most weight with upper house members was the most shallow and prejudiced “legal advice” of all.

Only two working days before debate on the Same-Sex Marriage Bill was due to begin, MLCs were hit by a “legal opinion” from former Supreme Court chief justice and former state governor, William Cox. Cox declared: “On the face of it, the present Bill is clearly inconsistent with the Federal Marriage Act.” He then went on to label as “specious” the view of professor George Williams that the Tasmanian bill was constitutionally valid.

That’s a bold attack on the man who wrote the textbook on the constitution, and you’d expect some reasoning to back it up. But there was none. Cox failed to provide any legal argumentation for his attack. Instead, he moved straight on to decry the rather obvious fact that Tasmanian same-sex marriages wouldn’t be recognised in other states (at least not yet).

As if that wasn’t bad enough, Cox showed his ignorance of the law by declaring that same-sex marriage would lead to same-sex surrogacy and adoption. Same-sex surrogacy was passed the week before the marriage debate, and same-sex step-parent adoption has been legal in Tasmania since 2003.

But worst of all was Cox’s obvious prejudice against same-sex relationships. He declared there is a risk many children of same-sex parents would not be well-adjusted and happy, and that there would be “a stolen generation” of children raised by same-sex couples. He hypothesised that same-sex marriages would lead to polygamy and polyandry.

This wasn’t a carefully considered legal opinion from a knowledgeable legal expert. It appeared more like a homophobic diatribe from an out-of-touch old man.

Ruth Forrest, a strong supporter of the bill, has tabled a motion for an inquiry into the legal and constitutional issues raised by the Same-Sex Marriage Bill. Given what legal nonsense was peddled to upper house members, it makes good sense to have a proper inquiry where the merits of the arguments can be weighed up.

If upper house members were sincere when they said they voted down the bill on constitutional grounds they will support the motion.

If they vote the motion down too, it will because they were simply using the constitutional issues to hide their prejudices, and because they don’t want the public to know they were gullible enough to swallow a very large pile of bulldust.

*This story was first published on Tasmanian Times

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  • 1
    Brian English
    Posted Thursday, 4 October 2012 at 1:21 pm | Permalink

    He declared there is a risk many children of same-s-x parents would not be well-adjusted and happy

    As opposed to the universal happiness of children raise by hetro couples.

    He hypothesised that same-s-x marriages would lead to polygamy and polyandry.

    No bestial marriages? The man’s imagination lacks compared to Corey Bernardi’s.

  • 2
    Madonna
    Posted Thursday, 4 October 2012 at 3:17 pm | Permalink

    Rodney your last paragraph sums up the same sex marriage bill,

    If they vote the motion down too, it will because they were simply using the constitutional issues to hide their prejudices, and because they don’t want the public to know they were gullible enough to swallow a very large pile of bulldust.

    I’m glad the ALP & LNP political bigots have been exposed for who they really are.
    What law protects these fossils who abuse their position to discriminate against same s-x marriage?
    Why isn’t this bill classified as discrimination if non inclusive and promotes inequality in today’s society. What message does that send?
    This same s-x bill debate has been enlightening, now the public have insight into the people in power and who they really are behind the masks they wear [Public Face].
    I have reviewed my wish list for the best leaders [egalitarians and progressive thinkers],I think would make better leaders of the Liberal and Labor party.
    My number 1 ALP pick is WA MP Melissa Parke - what a crusader and health minister Tanya Plibersek – intellectual and emotionally intelligent.
    My Liberal choice would be no other than Malcolm Turnbull.
    As it stands I may be one vote, but it counts. Besides there’s always the sphere of influence and many others I know will be switching to a Green Vote in 2013 over this topic and a few other issues.

  • 3
    Bethany Harris-Cooper
    Posted Thursday, 4 October 2012 at 5:04 pm | Permalink

    So uh, why is the word “sex” censored?

  • 4
    Nico
    Posted Thursday, 4 October 2012 at 5:04 pm | Permalink

    Any links or article on Crikey for a legal discussion on the merit (or not) of the backdown on constitutional grounds?

    It’d be good to see the rationale for it..

  • 5
    Posted Thursday, 4 October 2012 at 6:43 pm | Permalink

    As a child who was raised in a non-traditional family, who is incredibly well adjusted, who has been incredibly successful in many areas of his life, and never even got so much as a parking ticket, is it possible to sue people who continually peddle the bullshit that children of my background are somehow less well adjusted than hetero raised children?

  • 6
    Andybob
    Posted Thursday, 4 October 2012 at 8:37 pm | Permalink

    Well it is FunkyJ but since propensity for litigation is a hallmark of the less well adjusted its something of a Catch-22. Have you not felt the urge to marry Kevin Andrews lately ? I know I have.

  • 7
    Brian English
    Posted Thursday, 4 October 2012 at 8:43 pm | Permalink

    Why isn’t this bill classified as discrimination if non inclusive and promotes inequality in today’s society. What message does that send?

    Because you’re labouring under the falsehood that we live in a free society. I’m a white, hetro male of middle class origin. The only obstacles I face are the caprices of life: bad family, bad mates, bad luck, bad economic times. Those that aren’t white suffer racism, plus the caprices of life. Those that aren’t male suffer misogyny plus… Those those that aren’t hetro suffer hetrosexism plus… And so on. In this society the only thing stopping me is bad luck, or lack of work-ethic. But for every non-white, (inclusive) or non-male, or non-hetro person, or non-‘normal’ there are many more obstacles in this putative ‘equal-society’.
    Power, privilege, difference

  • 8
    Student T
    Posted Friday, 5 October 2012 at 12:12 pm | Permalink

    As usual the commenters here are leftist ideologues. I am in favour of gay marriage - barely, on balance. But comparing gay marriage to polygamy is NOT silly. (Comparing it to bestiality is silly because animals cannot enter into contracts).

    Come on guys. Construct for me an argument against polygamy that I can not easily use against gay marriage by a simple global search and replace.

  • 9
    Andybob
    Posted Friday, 5 October 2012 at 1:41 pm | Permalink

    Alright Student T, try this:

    Polygamy as it is practised, overwhelmingly comprises one man with many wives. Being simply one wife among others, rather than a sole matrimonial partner is inconsistent with the mutual respect and reciprocal obligations that underlie the relationship of marriage. In short, polygamy encourages male dominant patriarchal relationships that demean the status of women.

  • 10
    Mi Ja
    Posted Monday, 8 October 2012 at 4:21 pm | Permalink

    Who cares. This is not the most pressing issue for Tasmanians. Croome missed out, get over it.Perhaps he should have a chat to the “best thing I have ever done McKim.”

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