The New Jersey ruling that same-s-x couples have the right to a legal union fully equivalent to heterosexual marriage – but whether this legal union is called marriage is a question for the legislature – is echoing around Australia.
It’s particularly relevant because of the Commonwealth’s disallowance of the ACT Civil Unions Act.
In the wake of pressure from backbenchers ranging from Warren Entsch to Malcolm Turnbull and Peter Lindsay to Greg Hunt, the Prime Minister and his Attorney General have been making noises about giving same-s-x couples equal rights under Commonwealth laws, but stressing again that this doesn’t apply to marriage.
This begs the question as to what their attitude to the second attempt by the ACT to enact Civil Unions would and should be.
Most of the media seem to think the Stanhope Government was pushing for same-s-x marriage. They weren’t. They had legislated for civil unions – the compromise position in the UK, NZ and various US states.
Philip Ruddock said the original legislation ACT opened the door to bigamy and contradicted the Marriage Act’s definition of marriage as being between a man and a woman. ACT Attorney-General Simon Corbell was working on new legislation which would address some of the federal concerns. He detailed his plans on The World Today earlier in the week:
We believe very strongly in giving functional equality to people in same s-x relationships.
There should be an opportunity for their relationship to be legally recognised, and for the rights that come from that legal recognition being available to them…
The Government at this stage is proposing to prepare a piece of legislation which will be called the Civil Partnerships Act. That’s the same approach that’s used in the United Kingdom, where a very clear distinction is drawn between marriage and a civil partnership.
It’s about allowing people in a same s-x relationship to enter into a relationship, to have that recognised under law.
But we know, from the Commonwealth’s objections previously, that their objections were not really on substance, they were about language, they objected to the term “union”, they objected to the term “celebrant”, they object to the language that likened it to marriage.
So what we are seeking to do is to address that issue front on, and say this is an issue of functional equality under the law that must be addressed, and this is how we think we can do that.
He made this point very clear: “The act of entering into a relationship is an important symbolic step which should be available to people in same-s-x relationships, in the same way that it is available to people in heteros-xual relationships. Now, we will work very hard to address the issues around making sure that it is not perceived to be like marriage, in terms of its language or content.”
If the ACT Government gets the balance right, the Howard Government may just have to wear the legislation. Liberal polling is showing same-s-x rights appearing as an issue with some important demographics.
More and more reasonable opinion around the world is saying that to deny gays a form of legal union is discrimination against them, Howard and his supporters will look like anti-gay bigots.