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TAS

Oct 4, 2012

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.

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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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