The Australian Parliament should legislate for same sex marriage

The last English speaking country remaining on the list.



The NSW CCL supports marriage equality and opposes holding a plebiscite or referendum on the issue. Peoples’ rights and freedoms must not be subject to a vote of a majority of citizens.


A cross party bill supporting the legalisation of same-sex marriage was brought to the Australian Parliament as it resumed this week, forcing us to consider the question of marriage equality. Sadly in a marathon party-room debate last Tuesday night, the Coalition decided against granting its members of parliament a free vote on marriage equality before the general election, postponing the debate. Again. Australia is indeed the only English speaking country which has not (yet) legalised marriage for same sex couples.

Since 2001 when Netherlands legalised same-sex marriage, 21 other jurisdictions have introduced same sex marriage including the UK, France, South Africa, Brazil, the USA and Ireland. The major reasons and principles behind the legalisation of a gender neutral definition of marriage have been similar in each country that introduced it: social and legal equality and end of discrimination based on gender or sexual orientation.


The opponents of same-sex marriage would say that legalising it would have awful adverse impacts on the Australian society-the exact same arguments used in every other country in which same-sex marriage was legalised. As a brief filed by Human Rights Watch[1] points out, the Netherlands has not experienced any “observable adverse impact” in the 14 years since it legalised same-sex marriage. Nor did countries legalise marriage between human and animals, nor it did countries legalise polygamist relationships.[2] “Where same-sex marriage has been legalised, economies have not collapsed, order has not dissolved, and families have not disintegrated. Nor is there any evidence that religion has been compromised, morals eviscerated, or opposite-sex marriages harmed. To the contrary, life in these countries has continued as before—but with greater respect for the rights of all persons.”


What is Australia waiting for? Because it is not a question of if, it is now a question of when as people in the streets of Sydney (as well as Brisbane and Hobart) said during a protest to support the legalisation last weekend. It is also a question of giving an important right to a minority, a right that they deserve. The institution of marriage has evolved. It is not about giving a legal father to a child but about couples publicly celebrating their commitment, legal security, and providing a greater legal and cultural protection for their children. And more importantly, it is about love. Even though not all same sex couples want to marry, it is their right to have the choice.

Some people are afraid that legalising same-sex marriage would impede their religious freedom. But religious and civil marriage are separate. In Australian law, there has always been a clear distinction between civil and religious marriage. Giving rights to a minority will not take any rights off other people of the community.


In 2008, the Australian Parliament legislated to provide same sex couples with same social and economic rights as opposite-sex couples. This initiative was inspired by a report[3] written by the Australian Human Rights Commission and campaigning by activists over many years. While this was a good step towards equality, same-sex marriage must be introduced.


The judgement made by the South Africa’s Supreme Court in 2006 is inspiring: "The exclusion of same-sex couples from the benefits and responsibilities of marriage, (…) reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society. (…) It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples." —Paragraph 71 of the judgement


However the debate is once again postponed because of the actions of Prime Minister Tony Abbott who personally opposes gay marriage. He has offered a plebiscite on the issue if his government remains in power after the next election, but the outcome would not be binding. And human rights should not be subject to public votes.


The Australian Parliament should legislate to allow same-sex couples to marry - before the next election.


Sources / For more information:

- Artem Patalakh, “The Institution of Marriage and the Traditional Family after Adoption of Same-Sex Marriages”, Munich, 2015

- Patrick Festy, « La légalisation des couples homosexuels en Europe. », Population 4/2006 (Vol. 61), p. 493-531

- Ariane Zambiras, « Focus — Le mariage gay : transformation des représentations et modes d'expression concurrentiels de la volonté populaire », Informations sociales 2013/3 (n° 177),p. 120-125.

- Ari Ezra Waldman, « Marriage Rights and the Good Life: A Sociological Theory of Marriage and Constitutional Law », Hastings Law Journal  Vol. 64:739, 2013

- Australian Human Rights Commission, « Marriage equality in a changing world – Postition paper on marriage equality », 2012

- Human Rights and Equality Opportunity Commission (now Australian Human Rights Commission), « Same Sex : Same Entitlements - National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits », May 2007

 - David Paternotte, « Sociologie politique comparée de l’ouverture du mariage civil aux coules de même sexe en Belgique, en France et en Espagne : des spécificités nationales aux convergences transnationales », Thesis, Université libre de Bruxelles, 2009


[2]Note on polygamous relationships:

Polygamy is legal in approximately 25% of countries. Polygamy can take the form of polygyny, the practice of one husband having two or more concurrent wives, which is the most common form. Some countries allow this form of polygamy only in their Muslim community. The other form, legal polyandry, is much less common. Legal group marriage, the practice of concurrent marriages amongst multiple participants often with multiple participants of each gender, is also extremely uncommon.

However a majority of the world's countries and nearly all of the world's developed nations do not permit polygamy (including all the countries which legalised Same Sex Marriage), and there have been calls for the abolition of polygyny in many developing countries.

[3]Human Rights and Equality Opportunity Commission (now Australian Human Rights Commission), « Same Sex : Same Entitlements - National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits », May 2007