Labor Position on Gay Marriage Bill

[thorfinn]

Well, today, I got the following emailed media release.

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Nicola Roxon Media Release - Gay Marriage - Labor Position on Government Bill - 1 June 2004

Nicola Roxon MP
Shadow Attorney-General
Shadow Minister Assisting the Leader on the Status of Women

Media Release

Marriage will remain a union between a man and a woman, but same sex couples are entitled to recognition as de factos.

Labor position on Government Bill

The Labor Party will not oppose the PM's measures to confirm in the Marriage Act the common law understanding that marriage is "a union between a man and a woman to the exclusion of all others". Consistent with this, Labor will also not oppose a prohibition on recognising foreign same sex marriages.

While Labor questions the PM's motives and reasons for bringing on this issue for debate now, and questions whether it is necessary, Labor does not oppose these parts of the Bill which merely confirm existing law and our previous commitments to keeping marriage as a heterosexual institution.

However Labor does not support the Government's attempts to interfere in adoption issues. Adoption has always been an issue for the States and Territories to determine, as the PM himself acknowledges. It is inconsistent and inappropriate for the PM to try and interfere in this issue simply because some children are being adopted from overseas. Rigorous eligibility standards apply at the State and Territory level and we have confidence that those processes ensure the best interests of the child are paramount.

Labor will move amendments to this Bill and refer the Bill to a Senate Committee for a full exploration of the technical issues that arise and to ensure the broader community has an opportunity to express their views on this Bill.

Labor position on acknowledgement and recognition of same sex couples

More importantly, Labor restates its commitment to remove discriminatory provisions from Commonwealth legislation on the basis of sexuality, following a full audit of existing laws.

This audit will commence immediately once Labor is elected to Government. It will allow issues of substance, such as superannuation, taxation, social security and much more, to be addressed comprehensively.

When complete, this will give same sex couples the rights and recognition of heterosexual de facto couples.

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A decent compromise?

Well, that is indeed an extremely clever response. It dodges the bullet nicely (there is a very strong Labor Catholic Trade Union faction that would have serious issues with gay marriage, and it's been suggested that the bill was aimed at getting Labor to walk into intra-party controversy), whilst at least trying to do the best that can be done without actually saying the phrase "gay marriage". De facto is pretty damn close... That's the point of de facto in the first place. De facto married, i.e., "in fact married". That is an extremely clever position to take.

Oh, and what they're referring to above as regards common law definition is what I wrote about in mordwen's journal.

Basically, the definition of marriage as "a union between a man and a woman to the exclusion of all others voluntarily entered into for life", is due to common law, not legislation! Both the Family Law Act and the Marriage Act contain wording about what a marriage is supposed to be. However, neither of these actually constitute an express definition. See In Re Kevin, especially item number 8. in the introduction.

Apparently it all goes back to one Lord Penzance, in Hyde v. Hyde and Woodmansee (1866), who declared: "I conceive that marriage, as understood in Christendom, may ... be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."

And plenty of cases set before the courts have accepted this definition. So, the definition is based in common law, backed up by implied definitions as stated in two different Acts.

Comments

[lederhosen.livejournal.com]

Hmm. I'm no lawyer, but this looks a shade or two better than I'd hoped for, and probably about as good as is currently compatible with electability.

[thorfinn]

Agreed. It's not an out I'd thought of, but in retrospect, it's a beautiful beautiful piece of semantic dodgery, and I think it's one that'll work.

[lederhosen.livejournal.com]

Incidentally, I wonder what significance the '...to the exclusion of all others' bit might have to the marital status of heterosexuals in open/poly relationships?

[mordwen.livejournal.com]

Yeah, the "exclusion of all others" bit has amused me for a while, for that exact reason. Even if I didn't believe in state-sanctioned marriage, I couldn't do it, because of that clause. And because it's part of the common law definition, it's something the registrar *is not allowed to remove* from the ceremony (btw, thorfinn, I may not have known the source but I did know it was common law, I was kinda pushing a point...)

[thorfinn]

Religious celebrants don't have to use the prescribed wording... So finding a religious celebrant that's compatible with one's personal beliefs works as a personal dodge. I'd be quite happy to be married by a buddhist priest, for example.

[mordwen.livejournal.com]

Interesting. Didn't know that one. Thanks... doesn't change my opinion about wanting to ban marriage completely. I came up with a solution today, that still goes against my politics of what you tell the state, but would be something I'd be happy to support in the interim (while we wait for the State to wither away...bwahaha.. I mean, collapse).

1. The Marriage Act is removed from the statutes altogether and replaced with a "Relationships Registration Act".
2. Churches, synagogues, mosques, temples etc continue to enforce their "marriage is only between a man and a woman" line, but that's fine because the piece of paper signed at the end of the ceremony is a Relationship Registration Agreement.
3. Any couple wanting to be recognised as de facto for the purposes of superannuation, property arrangements, tax breaks, whatever, must file for a Relationship Registration, regardless of the genders of the participants.
4. Queers wanting a ceremony to celebrate can get "married" in queer churches or by celebrants as can pagans and can choose to sign a bit of paper at the end of it or not... Churches, mosques, synagogues etc can deny that these are real marriages to their hearts' contents because the legal issue is moot.

[thorfinn]

That's pretty much almost what the Labor Party proposal does. De-facto is almost identical in legal benefits to a registered marriage (there are a couple of edge cases, but I'm not sure what they are) already. The only difference is that you just have to fulfil the conditions for de-facto, instead of registration. And you don't actually need to even tell the state about fulfilling those conditions - it can be done by presenting evidence later down the track if it matters.

I assume that conditions for becoming de facto are defined in the Family Law act, but it may well be Common Law, or some combination between - I don't actually know.

You are currently allowed to hold whatever ceremony you like, you're just not allowed to call it a "marriage ceremony as per the Marriage Act".

That's why I say, it's a fairly good semantic dodge around the bullets. They can't abolish Marriage, it'd blow up. They can't let gays Marry, it'd blow up. But they can let gays have all the benefits and protections of marriage, by applying the de facto situation to gays.

Given the ratio of de facto marriages vs marriage ceremony marriages is almost certainly continuously increasing... That basically gives the situation that you describe, especially if the last edge case differences between de facto and ceremonial marriage are removed.

[darkstardeity.livejournal.com]

I assume that conditions for becoming de facto are defined in the Family Law act, but it may well be Common Law, or some combination between - I don't actually know.

From the experience of dealing with Centrelink et al, the definition is (IIRC) that you have been cohabiting for 12 months or more or you have been cohabiting for less than 12 months but have a child from that relationship. So there is still some disparity between de facto and ceremonially-defined marriages in that the benefits do not start automatically when you begin to cohabit - society still views de-facto relationships as more "risky" and less "committed" than those sanctioned by a ceremony, and you are required to prove your commitment to each other in a way not required of a newly-married couple.

[thorfinn]

Yes, this is true. I don't view that requirement to prove as a bad thing at all. The whole thing with massively increasing divorce rates is partly because ceremonial marriage doesn't have a requirement to demonstrate commitment. Buy first, think later. That's, IMO, stupid. Try first, then buy.

[my-ichiban.livejournal.com]

and as the dust settles on this issue.

i am now wondering what they have been sneaking through the back door of parliament.

"Look over here children, there is nothing up my sleeve"

[brahe.livejournal.com]

how very political of them *grins*

[kowari.livejournal.com]

This smells very much of my new term for gay union "Homoage". I decided months ago that people dont actually have a problem with dirty gays being dirty over there, but get uppity when they start sullying traditional institutions.

Fine, normals... be that way. Why not just create something LIKE marriage, that is not called MARRIAGE but legally, carries the same weight as MARRIAGE. Just that it is not. It is something else.

Shit, go look at that bucket, now the other bucket. Yes, I thought so too.

*sigh*

[zey.livejournal.com]

Looks like sensible policy in the current climate, and a decent wedge against Howard :-).

A gay version of marriage (with a different name) would probably be the next step later on, I guess.

[thorfinn]

That would be the touted "civil union" proposal... I don't see a great need for it. Firming up the de facto situation works quite well...

BTW, do I know you from any other fora? Poked around your userinfo, and it looks to me like aus.culture.gothic but I'm not sure.

[zey.livejournal.com]

That would be the touted "civil union" proposal... I don't see a great need for it.

It's a bit similar to the "practical reconcilliation" vs "formal apology and treaty" debate, in some ways. The symbolism of what a marriage does (the legalities of contract to each other and the ceremony) is important to many. I can't see any reasons to deny people that, even if it's given another name to appease the rednecks.

BTW, do I know you from any other fora?

I generally use the nick of "Synic" on IRC/Usenet. Yep, you might remember me from aus.culture.gothic (I put its RFC) and a few other groups over the years.

[thorfinn]

True enough. It's difficult to do that without creating an actual difference, though... One of the problems of giving it a different legal name is that common law about one then doesn't automatically apply to the other. And there is an awful lot of common law about "marriage".

That's part of the whole issue with even de facto marriages... The benefits aren't identical to ceremonial marriage, because they are different in law, and it takes double the amount of legislation or case law judgements to achieve the same outcomes. Add in "civil unions", and that makes three...

And, ah, yes, now I've placed you. Coolio.

[damien-wise.livejournal.com]

I'm surprised that so few people have noticed that it's a well-timed attack by Howard, with an election around the corner. Really, what he's trying to do amounts to yet more of his infamous "wedge politics". It simultaneously drives a wedge through the community (and whips-up a storm of homophobia to distract them from the Bush/Blair/Howard war-crimes being enacted in Iraq) and through the ALP (who will quite happily argue among themselves, split into factions and, well, try to use their conscience instead of towing the party line...this division is the sorta thing Howard thrives on).

[thorfinn]

Fortunately, I think that in this case, the wedge that's being driven is working against him. Fundie Christians are a minority. A powerful minority, but definitely a minority.

*brain working noises*

[belegdel.livejournal.com]

Hmmm. If marriage is legally and formally tied down to the rigid christian definition and de facto status is broadened and garners greater recognition over time, perhaps "de facto marriage" could morph into [insert some term for formalised relationship].

People then, at least, have a choice of what works for them.
Though I suspect in that future, incidence of marriage would dwindle to around the level of exorcisms.

But, then, I dream of a society free of the baggage of religious history.

Re: *brain working noises*

[darkstardeity.livejournal.com]

But, then, I dream of a society free of the baggage of religious history.

Oh gods yes. (And yeah, I'm aware of the irony of my response, however, it is heartfelt.)