Gay and lesbian activists in Australia are desperate to get marriage equality on the election agenda. It’s been more miss than hit — see Penny Wong Watch every time she appears on television — but a few aspiring backbenchers in inner-city seats are preemptively breaking rank: the latest being Liberal candidate Cameron Simpkins in Hobart, and Malcolm Turnbull’s ALP challenger Steven Lewis.

The movement’s large base of supporters aged under 35 can’t go near social media without comparing Australia with the developments in California where every same-s-x wedding kiss is an Emmy moment for news crews.

But America doesn’t actually have gay marriage, at least not as we’d understand it. No ceremony or certificate is recognised by the federal government whatever word is used at the top: marriage, civil union or registered partnership. America’s gay and lesbian couples are denied the term ‘spouse’ in most areas of government administration in contrast to the recent de-facto reforms giving that honour to Australian same-s-x couples.

More than anywhere else in the world, California saw intense lobbying from sections of the religious community to preserve ‘one man and one woman’, leading to the world’s most televised gay rights ban. Millions of church dollars were spent in Proposition 8 that passed by a margin of just 1% and has become a byword in the growing culture war of gay discrimination.

Earlier today, US federal judge Vaughn Walker struck down the state’s ban: “A private moral view that same-s-x couples are inferior to opposite-s-x couple is an improper basis for legislation.”

Equal protection and due process clauses in the US federal constitution were specifically designed to protect vulnerable minorities like gay men and lesbians, he wrote, outweighing even a majority vote of the people. Gay marriage opponents had failed to advance any rational basis for singling out gay and lesbian people for denial of marriage licenses.

“Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate,” he wrote.

Marriage was never dependent on reproductive capacity he wrote, adding that gender-specific obligations in marriage had long been dropped without undermining the institution, as had interracial restrictions.

California’s civil partnerships — a marriage alternative for same-sex couples similar to state-based registers in NSW, ACT, Victoria and Tasmania — were created to reinforce social discrimination, he said: “Marriage is a culturally superior status compared to a domestic partnership.”

Marriage bans harm a vulnerable segment of the community because it “perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents”.

In more than 50 cities around America, marriage equality supporters held ‘decision day’ parties. The trial itself was live-tweeted by dozens of reporters and citizen-journalists after the Supreme Court intervened to prevent cameras broadcasting the proceedings. Opponents from the National Organisation for Marriage held a Traditional Marriage Tour of America, but stayed mostly quiet today after the comprehensive defeat.

During the trial, Judge Walker asked the lawyer defending Proposition 8 what harm was caused by same-s-x marriage. Charles Cooper’s answer: “I don’t know. I don’t know.”

All eyes are now on whether the Supreme Court will take up the case, as Judge Walker’s ruling implies bans that remain in 44 US states and federal law are also unconstitutional.

The contrast between America’s legal challenges to gay marriage bans and Australia’s debate can only grow when the Supreme Court gets involved. Australia has nothing like the US constitution’s 14th amendment, or even anti-discrimination laws on which to draw. Marriage equality advocates in Australia will not be able to rely on the courts. Instead, governments are supposed to justify its laws directly to the public.

So far, neither major party has advanced a reason for keeping the marriage ban in 2010. Penny Wong drew upon a “cultural, religious and historical view” but couldn’t articulate a reason on behalf of the government. In previous years the ALP’s justification was the majority of Australians agreed with the ban. That may have been true then, but every poll since 2007 has said otherwise. Support is now higher than 60% according to Galaxy polls.

Liberal legal affairs spokesman Senator George Brandis appeared on Melbourne’s gay and lesbian radio station JOY 94.9 this morning to support expanding anti-discrimination laws in the first term of an Abbott government, but stopped short of an absolute commitment.

Meanwhile Team Gillard has continued another policy from the Howard years, impeding gay and lesbian Australians who live overseas from marrying by denying them Certificates of No Impediment which state they are currently not married and are legally an adult. The move was described as petty by equality advocates.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey