I wrote this essay in 2012 and stumbled across it a couple of days ago. I’m not sure if it was the final essay but nevertheless an interesting read. Please remember this was written before same-sex marriage was legal in Australia (1st January 2018).

What cultural and institutional constraints restrict the rights to same-sex marriage in Australia and how does this compare with other western countries?

What freedoms and constraints exist over your identity in a globalised world?

People and Society SP5 2012

Matthew E. Fopp

This essay will argue that freedoms and constraints exist over sexual identities in a globalised world. Despite the majority of Australians supporting gay marriage; same-sex couples are still denied the same rights as heterosexual couples. The essay first explores the contributions to this resistance in the form of cultural norms regarding sexuality which can be directly attributed to family norms and religion. Another constraint which will be discussed is the government who is currently restricting changes by not updating legislation to allow same-sex marriage. The essay then investigates same-sex marriage on a global scale and how Australia –in some cases- is years behind other western nations where gay marriage and civil partnerships have been legalised for many years. Finally, the success that has been achieved by Australian Marriage Equality (AME) will be examined and how this provides some hope that in the future these laws and opinions resisting gay marriage in Australia may change.

Despite a large portion (64%) of the Australian population supporting gay marriage, it is still only available to heterosexual couples (Australian Marriage Equality 2012, p. 2). In December of 2008 progress was made in regards to gay rights when two Acts of Parliament were introduced giving same-sex de facto partners the same federal rights as opposite-sex partners in regards to taxation, inheritance laws, immigration, and superannuation (Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008; Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008). Some states and territories have also introduced other forms of recognition including civil partnerships (Australian Capital Territory and Queensland), domestic partnership agreement (South Australia) and state based registries (New South Wales, Tasmania and Victoria). Some in the GLBTI community argue that although this recognition is a step in the correct direction, it does not address the issues or reasons for wanting gay marriage to be legalised. These reasons include; the immediate legal benefits that come with marriage, being included in the universally valued institution of marriage, lifting the current restriction of freedoms, implies discrimination based upon sexual orientation is acceptable and global recognition of the relationship (Australian Marriage Equality 2012a). Legalising same-sex marriage would not only address these issues but many more as well.

A contributing factor to the resistance of same-sex marriage is the cultural norms relating to the family. According to Holmes, Hughes and Julian (2007, p. 282) a nuclear family is ‘A family consisting of a married couple and their own offspring’. Based on the definition of marriage in Australia (Marriage Act 1961); a nuclear family must therefore consist of a man, women and their biological children. The modern Australian family is no longer necessarily the nuclear family of 50 years ago (for example; single-parent families, step-families or families with single-sex parents) and the definition needs to be changed to accommodate this diversity (Holmes, Hughes and Julian 2007, p. 287). When discussing the family and gay marriage, Benson et al (2011) state that ‘Marriage has a place in the law because a relationship between a man and a woman is the kind of relationship that may produce children. Marriage is linked to children, for the sake of children, protecting their identity and their nurture by a mother and a father’. Based on this theory one could assume that as it is impossible for same-sex couples to biologically have children; their relationship cannot result in a marriage or a nuclear family and therefore does not have a place in the law. This is clearly not the case, as not all marriages can or will result in biological children. Some individuals also believe gay marriage ‘would seriously undermine the institution of marriage and the family’ (Edwards 2007, p. 247). Spedale and Eskridge’s (2006) research contradicts Edward’s statement and suggests that the legalising of same-sex marriage does not actually undermine the institution but has actually made it stronger.

There is no evidence that allowing same-sex couples to marry weakens the institution. If anything, the numbers indicate the opposite. A decade after Denmark, Norway and Sweden passed their respective partnership laws, heterosexual marriage rates had risen 10.7% in Denmark; 12.7% in Norway; and a whopping 28.8% in Sweden (Spedale and Eskridge’s 2006).

It could also be argued that increasing divorce rates suggest the institution of marriage and the nuclear family have already been undermined (Holmes, Hughes and Julian 2007, p. 288).

Religion is a key contributor to the resistance towards same-sex marriage. Herek and Whitley (cited in Todd & Ong 2012, p. 57) both suggest that religious beliefs are directly related to the negative attitudes towards same-sex relationships due to the fundamental connection of marriage, sexual morality and the family which all fall within the teachings of the church (Brint & Abrutyn; Putnam & Campbell, cited Todd & Ong 2012, p.57). Religious groups have vigorously fought against gay marriage claiming that ‘heterosexual marriage is said to produce inter-personal and social benefits that other forms of coupling do not do’ (Edwards 2007, p. 249). It is believed that men under the influence of marriage will become loyal husbands who will be faithful to their wives, active fathers and raise socialised children who will mature into responsible adults (Edwards 2007, p. 249). Whether this is isolated to families consisting of a husband, wife and biological children could be debated.

The Australian government’s recent (2004) changes to the Marriage Act 1961 have played a significant role in restricting gay marriage. Prior to the amendment of the Marriage Act 1961 it was unclear as to whether or not the act allowed gay marriage. The Marriage Amendment Bill 2004 requested the following be inserted into the Act to avoid doubt in regards to the definition of marriage; ‘marriage means the union of a man and women to the exclusion of all others, voluntarily entered into for life’ and ‘A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia’ (Marriage Amendment Act 2004). In mid-2004 the bill passed the House of Representatives and the Senate and became the Marriage Amendment Act 2004. In 2012 a bill was created to have the Marriage Act 1961 amended ‘to ensure equal access to marriage for all adult couples irrespective of sex who have a mutual commitment to a shared life’ (Marriage Amendment Act 2012). However in September 2012 the House of Representatives voted against the Marriage Amendment Bill 2012 and the following day the Senate voted against the Marriage Amendment Bill (No. 2) 2012. It is not only the power of the nation-state which can facilitate this freedom of equality to same-sex partners but it is also the same power which is continuing to restrict it (Holmes, Hughes and Julian 2007, p. 383). The government’s current refusal to legislate gay marriage only fuels social opinions and continues to restrict equal freedoms to same-sex couples.

Globally laws are changing and currently 11 nations (Argentina, Belgium, Canada, Denmark, Iceland, Netherlands, Norway, Portugal, Spain, South Africa and Sweden) recognise same-sex marriages. On July 20th 2005 gay marriage became legal nationwide in Canada (prior to this it was only legal in certain provinces) (MacIntosh, Ressing & Andruff 2010, p. 79). When 26 gay and lesbian couples were interviewed regarding the impact marriage had on their relationship they echoed many of the reasons listed on AME’s website (MacIntosh, Ressing & Andruff 2010, p. 80-82; Australian Marriage Equality 2012b). There are also a handful of countries (USA and Mexico) which recognise same-sex marriage in some jurisdiction; however outside the jurisdiction the marriage is generally not recognised. Although the UK have not legalised gay marriage in December 2005 the Civil Partnership Act 2004 was implemented allowing gay couples similar rights (but not identical) as married heterosexual couples (Stonewall n.d.; House of Commons Library 2012). When the Act was enacted in 2005 a civil union could not be registered on religious premises. This law was amended on the 5th December 2011 however the religious organisation are not obliged to host the ceremony if they do not wish (House of Commons Library 2012). In March 2012 the UK Government Equalities Office (2012) launched the ‘Equal Civil Marriage’ consultation with the aim to:

Seek your views on how we can remove the ban on same-sex couples having a civil marriage in a way that works for everyone. We are clear that no changes will be made to how religious organisations define and solemnize religious marriages and we are clear that we will retain civil partnerships for same-sex couples.

Although legislation enabling gay marriage in the UK is still a long way off, this is a positive step in the right direct.

When discussing the institutional constraints that restrict the rights to same-sex marriage in Australia; agency and structure are two terms that surface. Agency is an individual’s ability to be self-constituting (Barker 2008, p. 234); in comparison structure constrains or restricts an individual (Barker 2008, p. 233). It is structure which restricts the freedoms of homosexuals through legislation and at the same time sanctions same-sex partners for being deviant and not conforming to the social norms of heteronormativity (Furze et al. 2012, p. 53). There are many social movements fighting for gay rights and equality. AME is probably the largest in Australia and was established in 2004 as a response to amendments being made to the Marriage Act 1961. The membership based organisation had 3 priorities; lobbying, advocacy and education (Australian Marriage Equality 2012b). AME has had many achievements in the past 8 years including; institutional support from human rights organisations, recognition of gay partnership by government agencies such as the Australian Bureau of Statistics, increased support for law reform and ensuring that marriage equality is high on the national political agenda (Australian Marriage Equality 2012b).

In conclusion, this essay has shown that the resistance to same-sex marriage in Australia is influenced by the cultural norms of sexuality; which can be directly related to family norms and religion. It has been argued that the legalising of gay marriage will undermine the institution of marriage and the nuclear family despite evidence suggesting that same-sex marriage has actually done the opposite and made the institution stronger. When examining how religious beliefs contributed towards the negative attitudes in relation to GLBTI relationships there was a generalised opinion that same-sex couples did not produce the inter-personal and social benefits that heterosexual couples did. Despite significant support from the Australian population the government continues to vote against amending the Marriage Act 1961 and is still to follow many other western nations who have already changed their legislation to legalise gay marriage. Ultimately it is the nation-state that has the power to amend these laws and give marriage equality to all. Despite all this AME do show some signs of success and hope in their fight for marriage equality but it is likely to be quite a few years before Australia see’s its first same-sex couple married.

References

Australia Marriage Equality 2012, Conscience Vote on SS-M, viewed 23rd October 2012, <http://www.australianmarriageequality.com/wp/wp-content/uploads/2012/09/GalaxyAug2012.pdf>.

Australian Marriage Equality 2012a, 12 reasons why marriage equality matters, viewed 26th October 2012, <http://www.australianmarriageequality.com/wp/12-reasons-why-marriage-equality-matters/>.

Australia Marriage Equality 2012b, About AME, viewed 28/10/2012, <http://www.australianmarriageequality.com/wp/about/>.

Barker, C 2008, Cultural studies theory and practice, 3rd edn, Sage Publications Limited, London.

Benson R et al. 2011, Ethical arguments against same-sex marriage laws, Australian Broadcasting Company – Religion and Ethics, viewed 27th October 2012, <http://www.abc.net.au/religion/articles/2011/05/20/3222067.htm>.

Edwards, J 2007, ‘Marriage is sacred: The religious right’s arguments against ‘gay marriage’ in Australia’, Culture, Health & Sexuality, Vol. 9, No. 3, pp. 247-261.

Furze, B Savy, P Brym, RJ Lie, J 2012, Sociology in today’s world, 2nd edn, Cengage Learning Australia, Victoria, pp. 50-76.

Government Equalities Office 2012, Equal Civil Marriage – A consultation, viewed 27th October 2012, <http://www.homeoffice.gov.uk/publications/about-us/consultations/equal-civil-marriage/consultation-document?view=Binary>.

Holmes, D, Hughes, K & Julian, R 2007, Australian sociology a changing society, 2nd edn, Pearson Education Australia, Frenchs Forest, NSW.

MacIntosh, H Reissing, ED & Andruff H 2010, ‘Same-sex marriage in Canada: The impact of legal marriage on the first cohort of gay and lesbian Canadians to wed’, The Canadian Journal of Human Sexuality, Vol. 19, No. 3, pp. 79-90.

Marriage Amendment Act 2004 (Cwlth)

Marriage Amendment Act 2012 (Cwlth)

Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 (Cwlth)

Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 (Cwlth)

Spedale, DR & Eskridge WN 2006, The Hitch - A Commentary by William Eskridge, Jr. '78, Yale Law School, viewed 26th October 2012, <http://www.law.yale.edu/news/3708.htm>.

Stonewall n.d., The Civil Partnership Act, viewed 27th October 2012, <http://www.stonewall.org.uk/at_home/civil_partnership/2622.asp>.

Todd, NR & Ong KS 2012, ‘Political and theological orientation as moderators for the association between religious attendance and attitudes toward gay marriage for white christians’, Psychology of Religion and Spirituality, Vol. 4, No. 1, pp. 56-70.

Fairbairn, C 2012, Same-sex marriage and civil partnerships, UK Parliament, viewed 27th October 2012, <http://www.parliament.uk/briefing-papers/SN05882.pdf>.