How can same-sex unions possibly be a threat to marriage?

Legislation in the Australian Capital Teritory shows how we might achieve equity for same-sex couples, writes Andrew Lynch GAY MARRIAGE is a topic that is not going away anytime soon. The Human Rights and Equal Opportunity Commission is currently holding an inquiry so as to chart the extent to which same-sex couples are disadvantaged under Australian law. There is no doubt that such couples get a raw deal when compared to their heterosexual friends who are married or de facto. The difficult question is how we should fix this. The commission’s inquiry is looking at the operation of Commonwealth, state and territory laws which discriminate against gay and lesbian couples. It is particularly interested in hearing from such persons about instances where they have missed out on financial and work-related entitlements because they are in a relationship with a person of the same gender. Although the inquiry is just gathering steam, there are countless ways in which same-sex couples lose out under the law. Just some of the areas in which this occurs include the taxation system, social security benefits, and worker’s compensation. A particularly common example arises when a member of a same-sex relationship dies without a will. In some states, the deceased’s partner will not be able to inherit the estate because they are not a spouse and nor are they able to claim as a de facto. It is not really clear how much of this discrimination is the result of a definite policy or just a failure to update legislation in line with growing community acceptance of same-sex relationships. While it is rare these days to find laws which talk about “husbands” and “wives”, many statutes still utilise gender specific language when discussing couples, be they married or de facto. The effect is to exclude persons whose partner is of the same sex. We might think then that the solution to whatever the commission’s inquiry turns up is a simple one. Instances of discrimination against same-sex couples could be eliminated by means of statutory amendment on a case by case basis. However, even taking this step would not amount to true equality in the recognition of same-sex relationships. It might, at best, put those couples on the same footing as other de facto relationships. While these days the position of heterosexual de facto couples approximates that of married couples, the two are not simply equivalent under the law. Apart from any specific benefits denied to the former, the paramount distinction is that persons in a de facto relationship still have to prove their relationship when they are seeking to enforce legal entitlements. To return to the earlier example, if a de facto wishes to receive his or her partner’s estate upon their death, there is a list of factors which the courts use to decide if their relationship meets the bar. These include evidence as to where the couple lived, their sex life, their level of financial dependence and even how household duties were shared. But while heterosexuals can avoid these disabilities by affirming their relationship for legal purposes through marriage, this is not an option open to same-sex couples. As a result, even wide-ranging statutory change which puts same-sex relationships on an even par with de facto relationships fails to guarantee true and complete equality. Gay and lesbian relationships will only be on a level footing with heterosexual ones when same-sex couples are able to make a similar choice about having their relationship recognised under the law and to enjoy the consequences which flow from that. This need not mean including same-sex unions within the definition of marriage. For one thing, that might be constitutionally impossible given that when the Commonwealth was given power over marriage in 1900 it was undoubtedly understood as limited to the union of a man and woman. The Australian Capital Teritory’s Civil Unions Act shows how we might achieve equity for same-sex couples. A civil union is to be treated as a marriage for all purposes under territory law, but it expressly states that “a civil union is not a marriage”. This aims to avoid any inconsistency with the federal Marriage Act. While the attorney-general seemed placated by those efforts, the Commonwealth is yet to firmly indicate whether it sees the territory’s law as usurping its power over marriage. It is tempting to think the ACT law introduces gay marriage but that it dare not speak its name. However, it seems to strike the middle ground of respecting the traditional and constitutional definition of ‘marriage’, while also ensuring that same-sex couples are able to have their union recognised as exclusive under the law. Even people with qualms about same-sex couples as parents should be able to appreciate that there can be no justification for the many instances of financial disadvantage experienced by these members of our community. The solution is to provide a means of legally recognising such relationships and then extending to those persons the same benefits which apply to married couples. This will remove the discrimination which Human Rights and Equal Opportunity Commission is cataloguing. If doing so threatens the institution of marriage then it is a weak institution indeed. • Andrew Lynch is director of the Terrorism and Law Project at the Gilbert + Tobin Centre of Public Law, University of New South Wales. This article first appeared in the Age. 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