John Howard doesn’t always take his lead
from the Republican Party. “My general view is freedom means freedom for
everyone… People ought to be free to enter into any kind of relationship they
want to,” Vice President Dick Cheney said during the 2004 campaign when asked
about same-sex unions.
“Lynne and I have a gay daughter, so it’s an issue our family is very familiar
with,” he noted.

The Government’s decision to use its powers
to overrule the ACT’s Civil Unions Act is an attack on the principals of
federalism. The Territory Government had a mandate for its actions. They were
within its powers.

Once again we’re left asking who’s harmed
by same-sex unions.

Writing earlier this month in Online
Opinion, former Chief Justice of the Family Court of Australia Alastair
Nicholson commented
that the Commonwealth’s definition of marriage “reflects the definition
ascribed to marriage by Lord Penzance in Hyde v Hyde and Woodmansee in 1866,
where his Lordship defined marriage as ‘The voluntary union for life of one man and one
woman, to the exclusion of all others.’
It is worth noting that
Lord Penzance’s definition was inaccurate at the time that he gave it and remains
inaccurate today. It is difficult to understand how even in 1866, marriage
could have been defined as a union for life, having regard to the passage of
the Divorce and
Matrimonial Causes Act
in England in 1857… both the United Kingdom
and New Zealand have legislated to provide legal recognition for same sex
unions, as have Tasmania and the ACT.”

Around the same time Andrew Lynch from the
Gilbert & Tobin Centre for Public Law at the University of NSW observed in
The Age:

Gay marriage is
a topic that is not going away any time soon. The Human Rights and Equal
Opportunity Commission is holding an inquiry to chart the extent to which
same-sex couples are disadvantaged under Australian law. There is no doubt that
such couples get a raw deal compared with their heterosexual friends who are
married or in de facto relationships…

Just some of the
areas include the taxation system, social security benefits and worker’s
compensation…

It is not really
clear how much of this discrimination is the result of a definite policy or
just a failure to update legislation in line with growing community acceptance
of same-sex relationships. While it is rare these days to find laws that talk
about “husbands” and “wives”, many statutes still use
gender-specific language when discussing couples, be they married or de facto.
The effect, however, is to exclude people whose partner is of the same sex…

We might think
then that the solution to whatever the HREOC inquiry turns up is a simple one.
Instances of discrimination against same-sex couples could be eliminated by
statutory amendment on a case-by-case basis. But even taking this step would
not amount to true equality in the recognition of same-sex relationships. It
might, at best, put those couples on the same footing as other de facto
relationships.

While these days
the position of heterosexual de facto couples approximates that of married
couples, the two are not simply equivalent under the law…

But while heterosexuals can avoid these disabilities by affirming
their relationship for legal purposes through marriage, this is not an option
for same-sex couples. Even wide-ranging statutory change that puts same-sex
relationships on a par with de facto relationships fails to guarantee true and
complete equality.

“I am in favour of removing areas of
discrimination [against same-sex couples] and we have and I’m quite happy on a
case, by case basis to look at other areas where people believe there’s genuine
discrimination,” the PM said last week.

Actually, the Coalition has voted en masse
against motions specifically aimed at doing just this in the Senate. The ACT’s legislation specifically said “a
civil union is not a marriage” – an attempt to avoid any conflict with the
federal Marriage Act. Clearly, it wasn’t enough.

Once again, we’re left asking who’s harmed
by same-sex unions – especially since it is clear, as Lynch says, that ‘Gay and
lesbian relationships will be on a level footing with heterosexual ones only
when same-sex couples are able to make a similar choice about having their
relationship recognised under the law and to enjoy the consequences which flow
from that.”

Peter Fray

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