The Australian government will soon ask voters whether the law should allow same-sex couples to marry in the Australian Marriage Law Postal Survey.
Unfortunately, misinformation persists about the likely impact of amending the Federal Marriage Act if most Australians reply ‘Yes’.
I come to the marriage equality debate with my own biases, knowledge, and experiences.
Professionally, I have a law degree with first-class honours, graduating from the Australian National University with the Prize for Commonwealth Constitutional Law.
For 3 years, I helped to edit an encyclopedia on the High Court, The Oxford Companion to the High Court of Australia (2001), and for 7 years I worked with senior lawyers on some high profile cases, including landmark constitutional cases.
As for my personal life, my parents raised me in a strict Roman Catholic household. I dutifully attended church every Sunday until age 38.
I was a member of the Liberal Party of Australia in 1993 and again in 2010.
Against this brief background, I present my responses, as factually as I can, to dispel some of the most misinformed commentary spreading around the Internet and the mainstream media about same-sex marriage in Australia.
Here are nine of the most persistent myths about same-sex marriage in Australia.
Myth 1: ‘Gays already have legal equality!’
In 2008, federal legislative amendments corrected a lot of the legal inequality that lesbian, gay, bisexual, transgender, and intersex (LGBTI) people faced in Australia. But those amendments can go only part way while the law denies the legal status of marriage to LGBTI people.
The status of ‘being married’ cascades through not only federal laws but also State and Territory laws across many subjects, such as succession and property. When people marry, they acquire an automatic bundle of legal rights (and responsibilities) that come with ‘marriage’:
- under s12 of the Succession Act 2006, the ‘marriage’ of the person who makes a will automatically revokes that will;
- under s13 of the Married Persons (Equality of Status) Act 1996, if a ‘married person’ invests money belonging to the person’s spouse without obtaining the consent of the spouse, then the spouse can apply to the Supreme Court to have the money transferred to him or her; and
- under paragraph 4(1)(b) of the Property (Relationships) Act 1984, ‘de facto couple’ excludes couples who are ‘married’.
The status of ‘being married’ thus triggers legal consequences, and these few examples come from just one State.
For a real life example of the inequality LGBTI people face (this time in Tasmania), consider the circumstances that gay man Ben faced when he couldn’t organise (or even attend) his deceased partner Nathan’s funeral.
When a person marries, they become the spouse’s next of kin. But, in Ben’s case, authorities failed to recognise Ben as Nathan’s next of kin. Instead, Nathan’s estranged mum took over Nathan’s funeral arrangements. If Ben and Nathan had been married under Australian law, then no doubt about their kinship would have existed.
The legal inequality still facing LGBTI Australians provides one reason the Australian Medical Association supports marriage equality:
Even apart from these particular examples, a more fundamental kind of legal inequality confronts LGBTI people. Legally, if you’re straight, you can marry the person you love. But if you’re LGBTI, you can’t marry the person you love. How does that count as legal equality?
Myth 2: ‘But two guys or two women can’t have children!’
By law, it doesn’t matter whether a couple can or cannot have children. Legally, you don’t have to marry in order to have children; and you don’t have to have children in order to marry.
Infertile couples, for example, can’t have children, either; yet infertile couples can still marry. So, the ability of a couple to conceive children through procreative sex cannot comprise a relevant difference between those who can legally marry and those who cannot.
Some people argue that an opposite sex couple provides ‘biological complementariness’ or ‘sexed twoness’ and that this makes a difference. Yet, as a matter of physical reality, it makes no difference: such couples have as much chance of conceiving children naturally as same-sex couples. And, again, as a matter of law, the ability to conceive children naturally makes no difference whatsoever for the purposes of secular marriage.
Others sometimes claim ‘But if everyone were gay, the species would die out!’ This argument overlooks a simple fact: changing the federal Marriage Act will not make same-sex marriage, or homosexuality, compulsory.
More than enough heterosexual couples, married or unmarried, and enough LGBTI couples, married or unmarried, will continue to populate the over-populated earth and to raise kids — straight kids, gay kids, bisexual kids, transgender kids, and intersex kids.
And LGBTI people will still nurse them, teach them, heal them, entertain them, and nurture them. Your life will go on as normal whether or not LGBTI people can wed.
People also overlook the fact that many gays and lesbians have children already, either through prior relationships or through adoption, altruistic surrogacy, and IVF.
Marriage law differs from and exists separately to, laws on adoption, surrogacy, and access to assisted reproductive technologies. LGBTI people will have neither fewer kids or more kids if marriage equality becomes law. And their kids will do just fine (see Myth 6, below).
You may object to commercial surrogacy or to assisted reproductive technology, but those objections apply equally to heterosexual couples as homosexual couples, and marriage equality will make no difference to those objections.
If marriage brings benefits to kids of heterosexual couples, then why not extend those benefits to kids of LGBTI couples?
Some Conservatives support marriage equality because of the children of LGBTI parents, not in spite of children of LGBTI parents. Those Conservatives believe marriage brings stability and cohesion to all families — and to society.
Myth 3: ‘If same-sex marriage is legalised, what’s next? Polygamy? Bestiality? Pedophilia? Incest? People marrying objects?’
Allowing two LGBTI adults to marry each other provides the natural stopping point for marriage equality. ‘Equality’ means treating like cases alike, and the other kinds of relationships frequently mentioned in the ‘slippery slope argument’ are unlike same-sex marriage.
Consent provides the big difference between two LGBTI adults marrying each other and the other kinds of relationships. Two adults can consent to marry. An animal, object, or child cannot consent (though, disturbingly, as late as 1942, an adult man in Australia could marry a girl as young as 12; South Australia raised the age from 12 to 16 as late as 1957. The amendment to the Marriage Act allowing two adults to marry regardless of gender won’t upset the criminal laws against child sexual abuse and bestiality, change the minimum marriageable age, or make it possible for people to marry objects.
True, adults in a polygamous relationship can consent to marry, but other facts differentiate polygamous marriages from monogamous LGBTI marriages. For example, in polygamous relationships, questions of identity arise: who is married to whom?
A husband might have married several wives, but have the wives married each other? When a man marries several women, particular power imbalances might develop. Spouses might get jealous. And consequences for children in any such polygamous marriage require consideration.
Whatever you think of these considerations, your objections (or otherwise) will remain whatever happens with same-sex marriage. Thus, no causal link exists between same-sex marriage and polygamous marriage. In fact, commonly, where same-sex marriage has been legal, polygamous marriage has been illegal; and where same-sex marriage has been illegal, polygamous marriage has been legal. Further, the law already recognises polygamous marriage for many purposes. For example, s6 of the Family Law Act 1975 (Cth) says:
"For the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage."
Also, social security law recognises polygamous relationships for some purposes, as does judge-made law (see Cth v ACT [2013] HCA 55 at 32 and footnote 46).
The limit on the number of people who can marry will remain unchanged if Parliament amends the Marriage Act to allow same-sex couples to marry.
As for incestual marriage, Australian law lets you marry your first cousin. You can also marry your niece or nephew or your aunt or uncle (s23(2) Marriage Act 1961 (Cth)). But you can’t marry your brother or sister, or one of your parents, grandparents, or your own child or grandchild.
The prohibition against marrying these close relatives will remain after any amendment to allow same-sex marriage. Straight people can marry their nieces and nephews, but two (unrelated) LGBTI adults in love can’t marry each other. How does that make sense?
Myth 4: ‘Same-sex marriage isn’t about marriage. It’s about other things, like losing freedom of religion and freedom of speech, and forcing programs like Safe Schools on to parents.’
The same-sex marriage debate is precisely about marriage. Parliament will simply reverse the Howard government’s amendments to the federal Marriage Act that Parliament made in 2004, which for the first time expressly excluded same-sex couples from marriage.
Amending the Federal Marriage Act will not, and cannot, affect religious freedoms. Only the secular, legislative meaning of marriage will change (see below, Myth 5); the law will not interfere with the religious or sacramental meaning of marriage.
The Constitution protects the free exercise of religion, albeit as a narrow limit on federal law-making power. In several States and Territories, the law now protects religion as a ‘protected class’, making vilification and discrimination on the basis of religion unlawful. The Marriage Act will likely even include express (and unnecessary) provisions relating to religious freedom.
Changing the Marriage Act, a federal law, will make no difference to State and Territory laws that already outlaw discrimination and vilification on grounds of sexual preference. Already, businesses cannot legally deny services to people on the grounds of sexuality. Those anti-discrimination and anti-vilification laws exist prior to, and in addition to, the federal Marriage Act.
Parents will continue to have the freedom to teach their kids the parents’ own beliefs on gender, sexuality, and marriage. A simple amendment to the Marriage Act will have no impact whatsoever on what parents can teach their kids, and nor could it. The government cannot intrude into the family home in this way.
As for the Safe Schools program, the States and Territories take responsibility for schools, not the federal government; the federal government no longer even funds Safe Schools. For example, in the ACT, the Safe Schools program continues with ACT funding. Even Catholic schools have implemented their own LGBTI-focused anti-bullying programs.
Changing the Marriage Act to allow same-sex couples to wed will not adversely affect what schools teach kids. The federal issue of marriage and the State issue of education are unrelated. Everyone has the right to civil debate in Australia and this, too, will remain unchanged. Amending the Federal Marriage Act will not affect the laws relating to hate speech — most significantly, State and Territory laws. People will have the freedom to be as politically incorrect as ever. No-one will, or can, be silenced as a result of a simple amendment to the Marriage Act.
Myth 5: ‘Marriage is between a man and a woman.’
Answering the question: ‘Should marriage be confined to a man and woman?’ with ‘Yes, because marriage is between a man and a woman’ provides no answer at all. It merely begs the question. Opponents must explain why marriage is between a man and a woman.
Factually, marriage has not always been between a man and a woman. Most commonly, marriage throughout history has involved one man and several women.
This is the kind of marriage most often referred to in the first five books of the Old Testament. Remember King Solomon and his 700 wives and 300 concubines?
As for the gender of the parties to a marriage, marriage has historically also included examples of same-sex marriage. For example, the Roman empire practiced marriage between men; ‘female husbands’ existed in Africa; and ‘two-spirit’ male-bodied people lived among native Americans.
Almost one billion people now live in countries where marriage includes same-sex marriage. The change to the common understanding of ‘marriage’ has become so complete that dictionaries now define marriage as ‘The legally or formally recognized union of two people as partners in a personal relationship’.
As for religious or sacramental marriage, some churches define marriage as between a man and a woman. In Australia, most Christians define marriage as between a man and a woman (though, historically, some Christian churches such as the Mormon church have practiced polygamy; and there may have even been a Christian rite of same-sex marriage in the Middle Ages.
But any change to the secular (ie non-religious) legal meaning of marriage will not affect the current Christian definition of marriage as being between one man and one woman. Churches can still refuse to solemnise marriages between people of the same sex.
Your particular religious meaning of marriage is different from and separate to, the legal meaning of marriage.
One of the principles Christianity has given us is the separation of Church and State, which explains why Churches do not pay taxes to the State — otherwise, the State could tax Churches out of existence.
But while the State cannot unduly interfere with the affairs of the Church, neither can the Church unduly interfere with the affairs of the State.
Thus, people can hold their personal, religious views about marriage; but people cannot impose those religious views of marriage on the legal meaning of marriage.
The ‘legal’ meaning of marriage can itself mean various things, such as the constitutional meaning of marriage; the common law meaning of marriage; and the legislative meaning of marriage. The proposed amendment to the federal Marriage Act will change only the legislative meaning of marriage. The common law meaning of marriage and the constitutional meaning of marriage already include same-sex marriage.
Parliament will simply reverse the amendments the Howard government made in 2004 to the federal Marriage Act. Marriage, legislatively, has only been ‘between a man and a woman’ since 2004. Before 2004, marriage was left to the courts to define (the common law meaning).
In fact, in 1961, when the Marriage Act was created, though Parliament didn’t contemplate same-sex marriage, Parliament deliberately rejected amendments restricting marriage to ‘a man and a woman’. The Marriage Act was ‘genderless’. The Howard government, with the support of Mark Latham’s Labor Party, put the gender requirement into the Act in an apparent attempt to wedge the Labor Party before a federal election. The people voting ‘Yes’ in the Australian Marriage Law Postal survey in 2017 will simply return the Marriage Act to its prior genderless state.
Courts have changed the common law meaning of marriage in numerous ways, placing beyond doubt that marriage in Christendom does not equal marriage in secular law. The common law redefinition of marriage culminated in 2013 when the High Court unanimously declared that ‘marriage’ for the purposes of s51(21) of the Constitution includes same-sex marriage (Cth v ACT [2013] HCA 55 at 38).
So, marriage has not always been between a man and a woman; and marriage has legislatively been between a man and woman in Australia only since 2004. At common law, and for the purposes of s51(21) of the Constitution, marriage includes same-sex marriage. Only the legislative change to marriage remains, which will leave untouched any Christian, sacramental meaning of marriage as being between a man and a woman.
Myth 6: ‘I don’t mind what gays do in their private life, but same-sex marriage harms children!’
The claim that allowing LGBTI couples to wed will harm children represents the most egregious myth. Such a claim affects real-life families and children, and the claim is the most demonstrably false.
In 2015, a brief to the United States Supreme Court in Obergefell v Hodges weighed the evidence supposedly supporting the claim that marriage equality harms kids. More than a dozen professional associations prepared the brief: the American Psychological Association, Kentucky Psychological Association, Ohio Psychological Association, American Psychiatric Association, American Academy of Pediatrics, American Association for Marriage and Family Therapy, Michigan Association for Marriage and Family Therapy, National Association of Social Workers, National Association of Social Workers Tennessee Chapter, National Association of Social Workers Michigan Chapter, National Association of Social Workers Kentucky Chapter, National Association of Social Workers Ohio Chapter, American Psychoanalytic Association, American Academy of Family Physicians, and American Medical Association.
The brief to the Supreme Court says:
These findings correspond with those of the ‘What We Know’ Project at Columbia Law School. The project found that 75 of 79 scholarly studies found kids of LGBTI parents fare no worse than other kids of LGBTI parents. As for the four other studies, all share the same flaw:
The brief to the Supreme Court gets even harsher on the handful of sources that suggest same-sex parenting may have negative effects on children, concluding that those studies ‘suffer from serious methodological flaws and do not reflect the current state of scientific knowledge.’
Specifically, the conclusions of three researchers who opponents of same-sex marriage frequently cite — Sarantakos, Regnerus, and Allen — ‘have been resoundingly rejected by the mainstream scientific community.’
The brief to the Supreme Court calls out Donald Paul Sullins for special mention. An offensive poster allegedly placed in a Melbourne street cites one of Sullins' studies.
Lyle Shelton’s Australian Christian Lobby (ACL) has also relied on Sullins to spread the myth that same-sex marriage harms children. Even the Conservative Bolt Report has labelled the claim in Sullins’ study ‘wrong’:
The brief to the Supreme Court says of Sullins:
"Recently published papers by Donald Paul Sullins — all reporting secondary analyses of data from the National Health Interview Survey (NHIS) — have similar methodological flaws… For instance, Sullins fails to adequately take into account children’s histories of family disruption; he combines all children residing with same-sex couples into a single heterogeneous category, while creating more differentiated categories of children of opposite-sex couples (children residing with married versus single or divorced parents); he fails to acknowledge known coding errors in the NHIS data set, which resulted in the misclassification of many heterosexual partners as same-sex couples; and — in one paper — he attempts to correlate a largely heritable condition (ADHD) with variables related to children’s upbringing. In addition to these problems, none of the journals in which Sullins’ papers were published are indexed in major, reputable social science databases.
The peer review process used by these journals appears to have been perfunctory and conducted by reviewers without relevant expertise or any familiarity with the NHIS. Even a cursory examination of the reviews, which are posted on each journal’s web site, reveals that they raised few substantive concerns at all."
The particular study that the ACL and Melbourne poster have cited has been thoroughly rebuked here. And here. And here.
In fact, denying same-sex marriage to LGBTI couples may cause the real harm. Quoting the AMA, the brief to the Supreme Court says:
"It has further recognized that “denying civil marriage based on sexual orientation is discriminatory and imposes harmful stigma on gay and lesbian individuals and couples and their families”, and that “exclusion from civil marriage contributes to health care disparities affecting same-sex households."
In Australia, the Australian Medical Association also strongly supports marriage equality.
If opponents of same-sex marriage really care about children, then they may consider supporting same-sex marriage.
Myth 7. ‘God made Adam and Eve, not Adam and Steve.’
If, by this, you mean God made men and women to populate the earth, then see Myth 2 (above): procreation cannot provide the relevant legal difference between those who can marry and those who cannot marry.
If, by ‘God made Adam and Eve, not Adam and Steve’, you mean God has ordained only a particular kind of marriage (one woman and one man), then see Myth 5 (above): your sacramental or religious meaning of marriage differs from, and exists separately to, the legal meaning of marriage.
The government will change only the secular or civil meaning of marriage, not the religious or sacramental meaning of marriage. Christians can continue to believe in and practice their own religious view of marriage.
This fact explains why most Christians, according to opinion polls, favour same-sex marriage. It also explains why prominent Catholics such as Father Frank Brennan will reply ‘Yes’ to the postal survey.
Factually, cultures – and, therefore, marriages – have existed before the Adam and Eve creation story (around 6,000 years ago), and certainly before the Bible’s account of the Adam and Eve creation story (around 4,500 years ago). For example, Aboriginal culture has existed for around 60,000 years. Marriage, therefore, predates ‘God’ and predates organised religion.
Myth 8. ‘I don’t care if you get civil unions, just don’t call it “marriage”’.
Designating LGBTI marriage-like relationships as ‘civil unions’, though possible, solves fewer problems than you might think; and certainly poses difficult issues in a federal system such as Australia, which has multiple jurisdictions (the federal government, 6 State governments, and 2 internal territories).
Myth 1 shows the status of ‘marriage’ flows through the laws of these jurisdictions and across subject areas. Legislatures have a much easier job designating LGBTI marriage-like relationships as ‘marriages’ to trigger the bundle of automatic rights and responsibilities that come with the operative status of ‘being married’ (see, further, goo.gl/hfDfpg).
But an even bigger problem with designating LGBTI marriage-like relationships as ‘civil unions’ exists. Designating ‘civil unions’ for LGBTI people and ‘marriage’ for non-LGBTI people creates two tiers of relationships – one for heterosexual couples and one for LGBTI couples. While ever two tiers exist, for no rational reason, LGBTI couples will face unequal treatment under the law.
If, on the other hand, Parliament designates all marriage-like relationships (heterosexual and LGBTI relationships) as ‘civil unions’, then no such question of inequality would arise. Another option exists: abolish marriage altogether, so that everyone receives equal treatment, with couples making their own private legal affairs between themselves.
However, abolishing marriage represents a radical step that will not likely gain widespread support. It’s quicker, simpler, and fairer to extend the federal law of marriage to two adults regardless of gender.
If applying the word ‘marriage’ to same-sex couples offends you, then remember that the word ‘marriage’ has changed meaning throughout time (as have lots of other words). As mentioned above, even popular dictionaries now define marriage as involving a committed, exclusive, loving relationship between two people in love.
Myth 9. ‘If LGBTI people can marry, people will no longer assume I’m married to someone of the opposite sex.’
Myth 9 reflects the only ‘true myth’, to use an oxymoron. Heterosexual spouses may, if they want to, clarify that they have married ‘my wife’ or ‘my husband’, as the circumstances warrant. But is that too great a burden?
Conclusion
The Internet and parts of the mainstream media, in newspapers and on television, have littered the marriage equality debate in Australia with myths. It seems that sensational claims, like bad news, spread fast – much faster than calm facts. We can only hope the media, and the Australian people, start paying greater attention to the facts the closer we get to the Australian Marriage Law Postal Survey.
This post originally appeared on Facebook notes and was republished here with full permission.