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Could there ever be a topic that gives as freely as the push for same sex marriage? It certainly is a cause that arouses great passion form its advocates many of whom try very hard to berate, bully and intimidate their interlocutors when they can not convince them that marriage is only about “love”. If the lesson of human history tells us anything it is that marriage is about many things but prime amongst them is the formalising of a pair bond for the purpose of propagating the species.
As someone who does not endorse changes to the marriage act I have been subject to the abuse I mention. As I have previously argued I don’t think that “marriage” is really desired by same sex couples, rather it is social acceptance of their sexuality something that to a large extent they already have in this country. None the less they seek further affirmation in changing the definition of marriage to include their partnerships. It is a project that will fail even though they do seem to have a reasonable level of support among the young people who are led by their romantic loins when considering such things. My own teenage daughter thinks that my position on same sex marriage is “terrible” and “wrong” none the less I see no reason for me to change my position. which brings me to the recent passing of a bill in the ACT “parliament” to create same sex marriage in that jurisdiction. In the first instance I think its entirely relevant to remind readers how small and insignificant the ACT is at a national level. in many ways the ACT assembly is little more than a glorified Town Council it has sway over an area substantially smaller than any of the major cities of this country and a population that is easily exceeded by many of our provincial towns. So to envision it being on par with the other states or even the Northern territory is entirely wrong headed its a minor town council with delusions of grandeur, which trades upon its responsibility to host the national parliament to inflate its importance. in reality it should focus on the same matters as other town councils, namely roads refuse and rates instead we get cavorts like the same sex marriage nonsense. neatly summed up by Paul Kelly in the OZ:
Only a year ago a same-sex marriage bill was defeated in the House of Representatives 98-42. That is not a close vote. Since then Labor, the main same-sex marriage party, has lost a swag of seats and the Coalition, the main traditional marriage party, has gained seats. The September 2010 debate saw the Coalition vote as a bloc against same-sex marriage. Even if Coalition MPs had voted on conscience the bill would have been defeated by a wide margin. This remains the situation.
Why is this? The explanation, contrary to much same-sex propaganda, is that support for its cause is far more equivocal than it admits and, for many people, there is resistance to the nature of the noisy and often intimidatory same-sex campaign. Telling people who are not persuaded to your position that they are prejudiced or bigots does not, ultimately, assist your cause.
Attorney-General George Brandis announced on October 10 that the commonwealth would challenge the validity of the ACT laws. He had advice from the acting Solicitor-General they were invalid. This was no surprise.
The founding fathers enshrined marriage in the Constitution as one of the legislative powers of the national parliament. Moreover, under section 109 a federal law prevails over a state law “to the extent of the inconsistency” between them. The national parliament ignited the marriage provision in 1961 when the attorney-general, Garfield Barwick, promoted the federal marriage law. Until then, states and territories had regulated marriage.
Barwick’s intent was to honour the purpose of the founding fathers and create a national, consistent and uniform law for marriage in Australia. He specified a free vote for MPs. The issue was not treated as a party matter. His design was embraced by ALP deputy leader Gough Whitlam.
The Abbott government has a firm position: the Barwick design. Brandis stands on the shoulders of Barwick and Whitlam. Brandis has signalled the depth of his own views by saying “it has been understood for more than half a century that there is a single commonwealth law governing marriage”.
Indeed, there has been almost no suggestion since 1961 that states retain a residual power in legislating marriage. Lawyers will dispute the matter. But for many people it is hard to imagine a greater inconsistency between federal law defining marriage as the union of a man and a woman and the state-territory push for same-sex marriage.
In his recent Eureka Street posting, Frank Brennan calls the ACT law “a dog’s breakfast” and shows that it has conflicting definitions of marriage. He warns of the risks in the tactics of the same-sex lobby and says any changes to marriage law should come only by free vote in the national parliament.
States and territories know any marriage laws they pass must be tested in the High Court. It is imperative, given lives are being affected, that test come as fast as possible. Brandis rang the ACT Chief Minister, Katy Gallagher, told her he intended to challenge her law and suggested the ACT not operate its law until the High Court resolved the issue. ACT Attorney-General Simon Corbell later told Brandis there would be no delay.
The situation is clear: the ACT government is responsible for each and every consequence if this law fails. It is inconceivable that Whitlam, a Labor icon and human rights champion, would have tolerated this ACT indulgence designed to undermine national marriage laws that, if upheld, would permit states to freelance on marriage (think a populist Queensland premier merrily legislating against a federal same-sex marriage law).
If the High Court eventually upholds the Brandis position in relation to territory and state law, the onus will shift back to where it should belong, the national parliament. At this point Labor should insist that Abbott operate by the Barwick rules and give MPs freedom from party positions on the vote. This is the best means of advancing debate on marriage laws. Yet there is a danger that Labor may commit a huge tactical blunder on this front.
In the end I expect that homosexuality will continue to become far more socially acceptable than it already is. It is certainly something that I look forward to because I steadfastly believe that we should all be able to openly love and openly live with the partners of our choice regardless of their gender. The great irony is that at its heart the ACT bill creates a form of civil union for homosexual couples and when I an others have previously advocated civil unions as an instrument to meet the needs of gay couples the usual suspects have gone into a form of apoplexy that is most undignified and dare I say it, counter-productive to their cause because they then alienate those of us who do want to see our Gay brethren living happy lives even if we hold a more traditional view of what a marriage is and should remain.
- Australia capital backs gay marriage (bbc.co.uk)
- Tony won’t shift on gay marriage : sister (theage.com.au)
- Austrailian Federal Government Seeks to Kill Nations First Same-Sex Marriage Laws (lezgetreal.com)
- Tony Abbott launches legal challenge after Australia’s capital passes gay marriage (independent.co.uk)
- Fed govt will challenge ACT gay marriages (news.theage.com.au)
- ACT prepares to debate gay marriage bill (news.theage.com.au)