Gays denied human rights

LAST Wednesday was National Marriage Day, an initiative of the Australian Family Association in partnership with the Australian Christian Lobby. It was organised to pre-empt MPs reporting to parliament on the views in their electorates about same-sex marriage, set down for the following day. In other words, to head off any legislative move towards same-sex marriage spurred on by public opinion.

The organisers said it was "now more urgent than ever to gather your friends, neighbours, church group and colleagues and come to Canberra . . . to support natural marriage".

No wonder opponents of gay marriage are mobilising. You don't have to be a gay activist to advocate same-sex marriage these days. According to a Galaxy poll in June 2007, 57 per cent of the population supported same-sex marriage. In October last year it was up to 62 per cent. Change is a-coming, but sadly not just yet.

The politics of supporting gay marriage are less compelling than the merits of doing so. The religious affiliations of powerbrokers, especially in the Liberal Party, and the wedge issue gay marriage is, especially in key outer metropolitan marginal seats, make it hard for even a conscience vote on gay marriage to pass through both chambers.

Even though over-50s are the only age bracket with less than 50 per cent support for gay marriage (46 per cent in favour), that demographic dominates the parliament (122 of 226 MPs and senators). However, recognising the political problems is no barrier to outlining the shallowness of the case against removing this discriminatory exclusion of homosexuals.

The notion that marriage has always been between a man and a woman to the exclusion of all others hasn't been subjected

to significant changes in the past and is therefore a tradition that should continue to exclude same-sex couples is used to justify opposition.

John Howard briefly flirted with opposing gay marriage to ensure the "survival of the species". Targeting gay couples as a threat to procreation is valid only if one expects them to deny their personal tendencies and marry heterosexually. Using that logic, Howard must be over the moon about Penny Wong and her lesbian partner's IVF baby.

Where advocates of same-sex marriage go wrong is when they argue that access to the institution of marriage is about gay rights. It's about gay responsibilities and human rights. The responsibility side of the equation is already in place. Same-sex couples enjoy (and endure) pretty well equal spousal recognition under the law: de facto rights, superannuation rights, access to IVF and adoption. However, they do not have in this country the human right to marry.

Plenty of jurisdictions overseas have changed laws regarding same-sex marriage, the latest being New York. But in 2004 the Howard government amended the 1961 Marriage Act to ensure legally married same-sex couples overseas would not receive legal recognition here in Australia.

Denying gays the nomenclature of marriage is important to some people. The Howard government's amendment to the Marriage Act is but one of many through the years. And it is but one of many adjustments to the institution of marriage and how it has been viewed since the days of earlier civilisations, including as detailed in the Bible. Yet somehow tradition is used as the bedrock for arguments in opposition to gay marriage.

From the Old Testament we know that Abraham, Jacob and David took multiple wives, as did many others in those times.

In the 5th century, St Augustine sought to justify why multiple wives had gone from being acceptable to taboo: "As regards nature, [Jacob] used the women not for sensual gratification but for the procreation of children. For custom, this was the common practice at that time."

In other words, having more children justified having more wives. It's logic that would also allow Wong and her partner access to IVF "for the procreation of children". It highlights the evolving nature of the institution.

In the US, blacks once weren't permitted to marry whites. In Australia in 1918 the government ordered that Aboriginal women in the Northern Territory were allowed to marry non-Aboriginal men only with the permission of the Chief Protector.

Divorce used to be prohibited across Western societies. Women last century had few formal rights in marriage. (In Britain a husband was allowed to beat his wife with a stick, as long as it was no thicker than his thumb.) Traditional marriage vows (past and present) require women to obey men. In 1991 the government increased the age at which women could get married, from 16 to 18: another adjustment to this traditional construct, which for supposedly traditional reasons can't be opened up to homosexuals.

Arguments that same-sex couples should not be allowed access to marriage because of tradition are absurd. Marriage has been defined by its evolution. What today's traditionalists claim can occur only between "a man and a woman" has previously occurred between two men, between a man and multiple women, was denied between blacks and whites, subjugated women, has seen age adjustments and previously had to last a lifetime.

In fact, Australia's Marriage Act of 1961 included the terminology of marriage being between "a man and a woman" only in 2004. Before that, it was a matter of customary law which, by definition, is open to evolution.

I would have more respect for opponents of gay marriage if they simply stated they didn't want homosexuals to have access to it. It would carry the virtue of honesty, if also the vice of bigotry.

Once upon a time marriage was a religious institution, yet today atheists can marry outside of church ceremonies (many even do so in church) because ours is a secular society. If particular churches want to refuse to marry same-sex couples because they believe doing so violates their religious teachings, that should remain their right.

However, for the state to also exclude homosexuals will sit, in 100 years, beside other discriminatory laws that have already been overturned.

Peter van Onselen is a Winthrop professor at the University of Western Australia.