By Greg Donnelly MLC

Parliament of New South Wales

28th October 2013

The battle over the meaning of marriage has clearly moved from the Commonwealth Parliament to state and territory legislatures. Having failed to get their way federally, advocates of same-sex marriage are now deliberately opening up new fronts, hoping to make a breakthrough somewhere. The proponents for changing the definition of marriage do not plan to give up and intend to continue what they see as a struggle until they get their way.

In August last year an attempt in Tasmania to create a state-based law to permit same-sex couples to marry failed by just two votes when the Legislative Council voted down the proposal. Within the last fortnight the ACT Legislative Assembly passed a bill that it believes enables same-sex couples to marry. However, the Commonwealth Government is currently challenging the actions of the ACT Legislative Assembly before the  High Court of Australia.

In 1961 the Commonwealth Parliament passed the Marriage Act to create a comprehensive and unitary legislative framework for marriage that would operate nationally. In 2004 the Marriage Act was amended to incorporate an explicit definition to clearly state that marriage was the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. The purpose of the 2004 amendment was to put beyond any doubt whatsoever the meaning of marriage in Australia.

Following on from Tasmania and the ACT an attempt is now underway in New South Wales to create a state-based same-sex marriage law. A bill to establish such a law is being introduced into the Legislative Council on 31st October. The proponents of the bill have developed an interesting argument about the bill to try and protect it from constitutional challenge. In summary, they are saying that the bill seeks to create a new form of legal relationship called same-sex marriage that is drafted in such a way that it is not inconsistent with the Commonwealth Marriage Act. They claim that the bill is capable of withstanding legal challenge.

Without addressing all the legal arguments, this proposal is fundamentally flawed because it seems to sweep aside what the Commonwealth Parliament has done to create a clear and consistent set of laws that apply to marriage. The Marriage Act was never intended to be a partial or qualified codification of Australian law relating to marriage. It was and is a national law for marriage in Australia.

Another issue worth noting is that after all the effort it took to create a national legal framework, does Australia really wish to have a situation where there are up to nine different laws governing marriage in Australia? No doubt each would be a little different creating both complexity and unnecessary legal debate and litigation.

It is important, of course, to recognise that marriage is more, indeed a great deal more than the sum of competing legal arguments. The challenge to the meaning of marriage i.e. its very definition, is now being played out before the courts. That challenge must be taken seriously. The current definition must be vigorously defended.

In truth, the current debate about marriage is not about discrimination or equality, but in fact definition. What is marriage? On the one hand there are those that believe the traditional definition of marriage, namely a union of a man and a woman to the exclusion of all others, voluntarily entered into for life should be preserved and perpetuated. They believe that marriage has an innate and universal nature that is intrinsically linked to the complementary reality of manhood and womanhood and any children that may be born from such a union.

An alternate view of marriage that has some currency in our society is fundamentally different from the one outlined above. It removes the requirement for couples to be of the opposite sex and, I would argue, elevates personal fulfilment and emotional attachment and satisfaction derived by the parties, as the key elements of the relationship. Indeed, marriage becomes fundamentally an adult-centric relationship.

While it is true that politicians hold various opinions about marriage, as elected representatives they are responsive to the views of constituents. If those who do not want Australian marriage laws to change remain mute on the issue, politicians may well conclude that there is support in the community for state-based marriage laws for same-sex couples.

So do not delay. Get involved today and make your voice heard. Follow five easy steps:

  1. visit the Parliament of New South Wales website www.parliament.nsw.gov.au;

  2. click “Legislative Council” on the right-hand side of the webpage;

  3. click “All members of the Council”;

  4. send off your views. Mailed responses should be posted to: Member of the Legislative Council, c/o Parliament of New South Wales, Macquarie Street, SYDNEY NSW 2000

  5. ask family members, friends and others who share your views about marriage to do the same thing.

Act now.