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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-11-09 Daily Xml
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SAME-SEX MARRIAGE

Adjourned debate on motion of Hon. T.A. Franks:

That this council—

1. Supports same-sex marriage equality; and

2. Calls on the Parliament of the Commonwealth of Australia to amend the commonwealth Marriage Act 1961 to provide for same-sex marriage equality.

(Continued from 19 October 2011.)

The Hon. S.G. WADE (16:58): This is a conscience vote for the parliamentary Liberal Party, and as such the following views are mine. Subsections 51(xxi) and (xxii) of the Commonwealth Constitution give the commonwealth parliament the power to make laws for the peace, order and good government of the commonwealth with respect to marriage, divorce and matrimonial causes and in relation to parenting rights and the custody and guardianship of infants. Nonetheless, marriage law in Australia was state based until the passage of the commonwealth Marriage Act of 1961.

This act did not include a definition of marriage, preferring to rely on the common law definition and the evolution of the meaning of marriage as it relates to marriages in foreign countries. The Marriage Act was amended in 2004 to make explicit that marriage under the act is only available to a male and a female and to withhold recognition of foreign same-sex marriages. Worldwide, same-sex marriage is currently legal in Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden.

The first jurisdiction to recognise same-sex marriage was the Netherlands in 2001, followed by Belgium two years later and Spain in 2005. On the other hand, in June 2011 a bill to legalise same-sex marriage in France was defeated in the national assembly. In September 2010 Tasmania became the first Australian state to recognise same-sex marriages performed overseas.

On Wednesday, 9 February 2011, the Hon. Tammy Franks tabled a private member's bill to allow for same-sex marriage under South Australian law. This bill has not been progressed at this stage. On Wednesday, 19 October 2011, the Hon. Tammy Franks moved the motion, which I am now addressing. The motion does not propose that the state usurp the commonwealth's legislative role as the Marriage Equality Act did. Rather, it encourages a commonwealth parliament to use this legislative power in a certain way. A similar motion was recently passed by the Tasmanian House of Assembly. The motion was introduced by Greens MLC Mr Nick McKim, who stated he will push for further state-based legislation if the commonwealth parliament does not act by the end of 2011.

In my view, the state has a legitimate interest in fostering stable, long-term relationships, and recognition and registration of relationships is one way that the state can foster such relationships. However, in a pluralist society, the state should not discriminate against same-sex couples in relationship recognition and registration. I reiterate what I said in the Relationships Bill debate in 2006:

I consider that general discrimination against same-sex couples is not justified. All other things being equal, society benefits from long-term commitments to mutual supportive relationships. Such relationships tend to enhance quality of life, emotional, financial and psychological well-being—not merely dependence but interdependence develops. Support that might otherwise have to come from society generally is provided by the couple, one to the other. Society should recognise and support this interdependence.

Any recognition or registration of relationships offered by the state should not discriminate on the basis that both parties are of the same gender. If marriage is to be a form of relationship recognised by the state, it should be open to all couple types.

Many people object to marriage being made available to same-sex couples because they assert that marriage is a religious institution and should not be made available to couples in religiously unconventional relationships. In the context of that assertion, I think it is worth looking at the history of marriage in the Christian church. What that history shows is that the church does not need state law to bolster or protect marriage.

In early Christianity marriage was a private affair transacted between the parties and regarded as of little interest to others. There was no need for witnesses or parental consent, nor was there any system of registration. It was not until the 12thcentury—well into the second millennium—that marriage law became a matter of Roman Catholic Church jurisdiction. Even then, it was church law, not state law.

In 1563 the Roman Catholic Church, at the Council of Trent, formulated rules known as the Tametsi decree to govern the solemnisation of marriage. To be valid, marriage had now to be solemnised in the presence of a priest and before two independent witnesses. My understanding is that the first English law in relation to marriage was not enacted until 1603. Even then, it was not to deal with the formation of marriages: it was to make bigamy a felony.

It was not until 1753 in the Clandestine Marriages Act that we see the first legislative incursion into ecclesiastical control over the formalities of marriage in England. In other words, for 86 per cent of the Christian era, the church did not rely on state law to define or manage Christian marriage.

As an aside, the effect of Lord Hardwicke's act (the Clandestine Marriages Act) was drastic in the newly formed United Kingdom. Not only did the act abolish clandestine marriages, it also gave the Church of England a virtual monopoly over the solemnisation of marriages, which proved particularly hard for Roman Catholics and divorced people, who could not enter into a legally recognised marriage in England and Wales. These problems were eventually overcome by the Marriage Act 1836 which enabled marriage to be contracted through a civil ceremony in a registry office, thus enabling divorced persons to remarry.

Australia's early laws adopted the English marriage laws approach without departing from it in any material way. When the colonies federated in 1901, the commonwealth constitution conferred on the commonwealth legislative power on marriage. From 1959 onwards, the commonwealth decided to exercise its constitutional powers by enacting first the Matrimonial Causes Act 1959 and, shortly afterwards, the Marriage Act 1961. Both acts came into full operation in 1961 and 1963 respectively, and they were not significantly different from their predecessor state bills. While many Christians campaigned against the Family Law Act when it was introduced, now in the 2000s the Christian church seems to be defending a secularised institution as though it were a religious one.

In summary on this point, for 86 per cent of the Christian era the church did not rely on state law to undergird, define and defend Christian marriage; it does not need to do so now. In fact to do so, in my view, is dangerous. I am convinced that for the church and the state to prosper they need to function separately and independently. I am committed to the separation of church and state. Again I quote my previous statements in the Relationships Bill debate, not out of arrogance, but to try to claim some sense of consistency. I said:

I believe we should celebrate and jealously guard the separation of church and state. For its part, the Christian community should not seek to have the Christian moral code codified in the laws of this state. We live in a pluralist society where people have the right to choose how they live. On the other hand, the state and this parliament should respect the church and its freedom to maintain its moral code within its faith communities and to participate fully in the marketplace of ideas, expounding to the community what it believes is the right way to live. The passage of this bill will not impede the mission of the church to proclaim its own view of moral order.

I take it as a source of particular pride that South Australia was the first part of the British Empire to separate church and state. That reform was an initiative promoted by the Christian community. In the mid-1800s the League for the Preservation of Religious Freedom campaigned against state aid for religion. It was driven primarily by religious people who saw the dangers of state-run religion. The league's manifesto was published in 1849 and was signed by 19 Protestant churchmen. It read, in part:

The evils involved in the principle of state support to religion have been sufficiently obvious to most, if not all, of you in the Mother Country. It has impeded the spread of Christian principle by requiring mere outward observances as though they were essential and all-important. It has corrupted religion by making it formal, and weakened the state by compelling it to persecute, and wherever carried out to its legitimate consequences it has proved an effectual bar to the advance of the community in any of the paths of social or material progress. Judged by its fruit it is condemned by the voices of experience from the first moment of its adoption to the present time.

To paraphrase the manifesto of the league, the commonwealth Marriage Act is no friend of Christian marriage. It impedes the spread of Christian principle by requiring mere outward observances. It could be said to lower the standards of marriage from the generally perceived Christian ideal. For example, the Christian faith teaches that marriage is for life; the Marriage Act allows divorce after separation. The Christian faith teaches that a key purpose of marriage is procreation; the Marriage Act does not. The Christian faith sees sexual union as a key element in marriage; the Marriage Act does not.

The separation of church and state and the mission of the Christian church demand that the Marriage Act is not allowed to define Christian marriage. The Christian church makes itself vulnerable to the winds of democratic fashion when it puts itself in the position of being the defender of marriage laws which it cannot control and which do not reflect Christian teaching. Similarly, other religions in our multicultural, pluralist society cannot expect the laws of this state and this nation to embody their particular understanding of marriage.

On the one hand my view is that state law on marriage is a relatively recent phenomenon. Religious rights were well established before the state started regulating marriage and they are not needed for the maintenance of religious marriage. On the other hand, from the perspective of faith communities it is not appropriate that the state has custody of an institution that is often seen as a religious act by them.

As we move towards separation of church and state in relation to marriage, I hope that the Australian community and the Australian church will explore two options. The first option will be to clearly determine that 'marriage' in the Marriage Act is not marriage in its religious manifestations, whether in Christian or other religions. It should develop with religious communities having no greater right to determine its shape than any other Australian. Accordingly, marriage would be available to same-sex couples.

The second option would be to return the marriage to its historical status for 80 per cent of Christian history and to take 'marriage' out of the law and limit the state to providing non-discriminatory relationship registration—in other words, available to same-sex couples. Both of these options are encompassed by an amendment, which I now move:

Delete the words 'marriage equality' in the motion and insert 'equality in relationship recognition and registration' in the two places where it appears.

In moving this amendment, I reaffirm my commitment to the equal recognition of relationships under law. I do not support any form of relationship recognition and registration which is not available to same-sex couples. If amended, the motion would read as follows:

That this council—

1. Supports same-sex equality and relationship recognition and registration; and

2. Calls on the Parliament of the Commonwealth of Australia to amend the commonwealth Marriage Act 1961 to provide for same-sex equality in relationship recognition and registration.

Personally, I think there would be real benefit in the second option; that is, for the commonwealth Marriage Act no longer referring to marriage, so that faith and other communities can give contemporary meaning to that term through their own rites and practices. A religious or non-religious marriage may lead to a state-recognised relationship but may not necessarily so. Over time, people would differentiate the religious element from the registration element. Criteria for registration would be less likely to influence people's perception of faith and moral expectations. Ultimately, these are matters for the commonwealth parliament and the wider Australian community.

I stress that I support the nub of this motion; that is, equality for same-sex couples. Whatever registration options there are available under the law of the state and the nation should, by whatever name, in my view, be equally available to same-sex and other couples.

I appreciate that some will oppose my amendment without understanding it because they will assume that I am proposing that same-sex couples should have access to some sort of civil union short of marriage, while other couples should have access to marriage; that is, that same-sex couples should have to put up with second-class relationship recognition. That is not my opinion and that is not my view. I consider that whatever form of relationship recognition is available under law should be available equally to same-sex and different-sex couples. I commend the amendment to the council and I look forward to the finalisation of the council's consideration on the next Wednesday of sitting.

Debate adjourned on motion of Hon. Carmel Zollo.

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