Australia: Second Rate in a First World Country

Australia: second rate - Same-sex Marriage

The Australian Parliament struck down a bill legalizing same-sex marriage this week.  Shelly Argen, speaking for Parents and Friends of Lesbians and Gays, said at a press conference following the ruling, “It doesn’t matter, as a parent, how much you can provide your children [with] love, security, education and stability, as when you have a gay child, you realize that that child is seen as second rate in his own country, and that is not fair–not fair at all.”

Same-sex marriage had been legal in the Australian Capital Territory for five days. Almost 30 same-sex marriages had taken place during that time. The Marriage Equity Bill passed in October took effect December 7.  This was overruled by the Supreme Court on the 12th.

The Australia, the decision was not a surprise. Although the polls show that 53 percent of Australians support same-sex marriage, the Prime Minister’s Liberal-National government had challenged the passing of the bill legalizing same-sex marriage, and the PM had warned Australians not to rush to marry before the Supreme Court’s decision. The Supreme Court received the government’s written submission November 13 and heard the government’s challenge December 3 before striking the bill last week.  In the past, too, such attempts have failed. The government argued that the ACT bill was inconsistent with the Self Government Act 1988 and the federal Marriage Act.

In Australia, the Parliament is empowered to define marriage and has used the language “union of a man and a woman.” Judges sometimes make changes to laws, but in doing so they usually take cues from signals presented by the people at large. Unless civil activists and the population convince Parliament they wish to take a different course, the Supreme Court must find in this clear language that same-sex marriage is illegal.

In 2012 the Australian House of Representatives voted against legalizing same-sex marriage 98 to 42. This was a clear signal that even if those working for legalization were more successful, the such legalization was not likely to pass.

In October 2013, the Australian Capital Territory Parliament passed the Marriage Equity Bill, legalizing same-sex marriage in the ACT. The bill passed 9 to 8. ACT had been trying to legalize same-sex marriage for a decade. The Chief Minister said of their decision that even if Parliament refused to adopt a nationally consistent scheme, same-sex marriage would still be legal in ACT.

The High Court reversed the Marriage Equity Bill December 12. The High Court ruled that because the legislation was contrary to the federal Marriage Act already in place the bill was never valid.

Activists in Australia are now focusing on the states for same-sex legislation. Tasmania is due to vote on a bill next week.

Same-sex marriage is an issue being exercised around the world. In the US, eight states legalized it in 2013 (making a total of 17 US states where it is legal) and a dozen more are expected to do the same in 2014. Meanwhile India and Eastern Europe (notably Croatia) are upholding bans on same-sex marriage. Russia is also known for being unaccommodating to homosexuals.

In Europe, same-sex marriage was recently legalized in Portugal. Sixteen of 20 EU countries recognize some form of same-sex marriage; 11 member states deny such a legal right. This has led to complications in the EU.

The European Union passed the EU Charter of Fundamental Rights 10 years ago. Same-sex Marriage came up in the European Court in 2010 in Schalk and Kopf v Austria. The couple, who had been denied marriage, were ruled against four to three. The European Court decided that there was no violation of their human rights.

European Parliament’s Committee for Civil Liberties MEP, Sophia in ‘t Veld said at a recent EU session, “The European Union would never accept [it] if a member state would legislate, for example, that Jews cannot marry Catholics, or white people cannot marry black people, so why do we accept that national governments interfere in the choice of partners of grown-ups?”

Different laws in European nations also causes problems when citizens of one country legally marry and them move to a country that does not have the same rights. Although the person would like to be guaranteed the same rights he was given in the first country (as set out in the EU’s Lisbon Treaty), it cannot be legally accepted in the second country.  A similar problem exists in Australia when Australians attempt same-sex marriages in other countries.

Opinion by Day Blakely Donaldson

Washington Post

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