More than 20 countries have now legalised same-sex marriage. Ireland’s recent constitutional referendum vote in favour makes Australia look particularly backward in comparison with most other developed, English-speaking countries. Canada, New Zealand and the United Kingdom – though excluding Northern Ireland – have also introduced same-sex marriage.
The majority of American states now have same-sex marriage. The US Supreme Court is expected to hand down a decision this year that may confirm whether same-sex marriage is constitutionally protected.
So, as Opposition Leader Bill Shorten prepares to introduce an amendment on Monday to the Marriage Act to legalise same-sex marriage, why has Australia lagged so far behind?
The question seems all the more perplexing because the Australian federal parliament has the power to introduce same-sex marriage. That means implementing same-sex marriage is a relatively simple matter in Australia – unlike in the US, for example, where there were separate struggles to introduce it in multiple states.
Similarly, there is no marriage clause in the Australian Constitution that requires changing – unlike in Ireland.
The answer to why Australia hasn’t already introduced same-sex marriage partly lies in the way in which the issue has been exploited in Australian electoral politics.
The Howard era
There was no definition of marriage in Australian federal legislation that specified which sexes could marry. But in 2004, then-prime minister John Howard introduced legislation banning same-sex marriage.
Undoubtedly, Howard personally opposed same-sex marriage. However, he also hoped that he could use “values” issues in the 2004 election to wedge socially conservative religious voters away from Labor.
Howard implied that Labor had betrayed its suburban, working-class heartland to support the politically correct views of inner-city elites. This was a conservative framing that conveniently overlooked many gays and lesbians also being workers.
Despite some internal dissent, the power of right-wing factions within the ALP won out. Labor voted with the Howard government to ban same-sex marriage. It feared losing key electorates in areas such as western Sydney.
For years, it was left to minor parties such as the Democrats and the Greens to make the public case for same-sex marriage. Unlike the US, where party discipline is less tight, the requirement to toe the party line forced prominent Labor supporters of same-sex marriage to publicly state the ALP’s official position.
The Howard-era legislation banning same-sex marriage was also harder to challenge because Australia does not have a bill or charter of rights. The Canadian Charter of Rights and Freedoms played a significant role in bringing in same-sex marriage.
Similarly, in the US, gay and lesbian activists used legal challenges to laws prohibiting marriage at state level. Such rights litigation was not an option in Australia. Rather, gay and lesbian activists had to rely on trying to change major party politicians’ views.
This was not easy. More moderate conservative leaders in other countries, such as David Cameron in the UK and John Key in New Zealand, eventually supported same-sex marriage. Meanwhile, Howard – and later Tony Abbott – used socially conservative, religious “values” arguments to try to wedge off Labor votes.
In the 2007 election, then-opposition leader Kevin Rudd supported the legal recognition of same-sex relationships as being equivalent to heterosexual, de facto partnerships. But he also used his opposition to same-sex marriage to reassure socially conservative, religious voters. Julia Gillard did the same.
An issue of conscience
It wasn’t until 2011 that the long struggle within the ALP finally resulted in a change to the party platform to support same-sex marriage.
In 2013 – prior to his return to the prime ministership – Rudd shifted too. He announced that he now supported same-sex marriage on the grounds that it was legitimate for the state and the church to have different policies on marriage in a secular society.
Had Labor’s support for same-sex marriage been a binding vote – as was the case with opposing same-sex marriage or with the introduction of the 2008 reforms legally recognising same-sex relationships – the Labor government could have been close to having the numbers to introduce same-sex marriage during the Gillard or second Rudd government. However, Labor MPs were granted a conscience vote.
That conscience vote indicates that the separation between religion and the state is not yet fully accepted in Australian politics. Labor policy had left the question of whom religious organisations should marry, which is clearly an issue of religious conscience, for religious bodies themselves to decide according to their (varied) beliefs.
Labor MPs were effectively being granted a religious conscience vote on the issue of whom the state should be able to marry in a country where currently 72.5% of couples who marry choose to have a civil rather than religious ceremony. State-sanctioned same-sex marriage was still being framed partly as a personal morality issue rather than predominantly as an equality issue.
By introducing a bill before this year’s party conference, Shorten appears to have headed off a push for a binding vote for Labor MPs.
The residual religious framing is one of the reasons same-sex marriage has not yet been introduced in Australia. It has proved much easier (and quicker) to introduce in countries that have predominantly constructed same-sex marriage as an equality issue, such as Canada.
Ireland’s referendum vote is so important because it demonstrates that, even in a country that is traditionally staunchly Catholic, the majority of voters understand that religious definitions of marriage should be confined to religious marriage ceremonies and not be imposed on the state’s definition of marriage.
Most Labor politicians in Australia now take that position too. This includes some MPs who were previously concerned about the impact of same-sex marriage on their seats, such as Chris Bowen, Tony Burke and Ed Husic – all of whom occupy western Sydney electorates.
Meanwhile, many Liberals are urging that they should be granted a conscience vote on legalising same-sex marriage. They are likely to be given one. Previously, Liberal MPs haven’t had a choice over whether same-sex marriage is constructed as an issue of equal rights for loving adults – it has only been constructed as a Howard-era values/morality issue.
The Liberals now risk having same-sex marriage used against them electorally just as they once tried to use it against Labor. Shorten suggested that Abbott is:
… stopping Australia becoming a modern nation.
Labor’s moves prompted Abbott to argue that any decision to legalise same-sex marriage should be “owned by the parliament, and not by any particular party”.
Shorten subsequently suggested that a Liberal could co-sponsor the bill, rather than his deputy Tanya Plibersek. Liberal MP Warren Entsch has indicated his willingness to be involved in future negotiations, but not to co-sign Shorten’s current bill.
Irish Taoiseach (Prime Minister) Enda Kenny argued that his country’s equality vote:
… disclosed who we are – a generous, compassionate, bold and joyful people.
Kenny’s words raise questions about what message Australia’s intransigence on same-sex marriage up to now is sending internationally – as well as to its own gay and lesbian citizens.
I have come to the conclusion that church and state can have different positions and practices on the question of same sex marriage. I believe the secular Australian state should be able to recognise same sex marriage. I also believe that this change should legally exempt religious institutions from any requirement to change their historic position and practice that marriage is exclusively between a man and a woman. For me, this change in position has come about as a result of a lot of reflection, over a long period of time, including conversations with good people grappling with deep questions of life, sexuality and faith.
One Saturday morning in Canberra, some weeks ago, a former political staffer asked to have a coffee. This bloke, who shall remain nameless, is one of those rare finds among political staffers who combines intelligence, integrity, a prodigious work ethic, and, importantly, an unfailing sense of humour in the various positions he has worked in around Parliament House. Necessary in contemporary politics, otherwise you simply go stark raving mad.
And like myself, this bloke is a bit of a god-botherer (aka Christian). Although a little unlike myself, he is more of a capital G God-Botherer. In fact, he's long been active in his local Pentecostal Church.
Over coffee, and after the mandatory depressing discussion about the state of politics, he tells me that he's gay, he's told his pastor (who he says is pretty cool with it all, although the same cannot be said of the rest of the church leadership team) and he then tells me that one day he'd like to get married to another bloke. And by the way, "had my views on same sex marriage changed?”.
As most folks know, in our family I have long been regarded as the last of the Mohicans on this one. The kids have long thought I'm an unreconstructed dinosaur for not supporting marriage equality legislation. And Thérèse just looks at me with that slightly weary, slightly exasperated, slightly pitying "there, there darling, you'll get over it one day" sort of look, that wives can be particularly good at giving to their antediluvian husbands.
Very few things surprise me in life and politics anymore. But I must confess the Pentecostal staffer guy threw me a bit. And so the re-think began, once again taking me back to first principles. First, given that I profess to be a Christian (albeit not a particularly virtuous one) and given that this belief informs a number of my basic views; and given that I am given a conscience vote on these issues; then what constitutes for me a credible Christian view of same sex marriage, and is such a view amenable to change? Second, irrespective of what that view might be, do such views have a proper place in a secular state, in a secular definition of marriage, or in a country where the census tells us that while 70% of the population profess a religious belief, some 70% of marriages no longer occur in religious institutions, Christian or otherwise.
The Christian tradition since Aquinas is one based on a combination of faith informed by reason. If the latter is diminished, then we are reduced to varying forms of theocratic terrorisms where the stoning of heretics and the burning of witches would still be commonplace. In fact if we were today to adhere to a literalist rendition of the Christian scriptures, the 21st century would be a deeply troubling place, and the list of legitimized social oppressions would be disturbingly long.
Slavery would still be regarded as normal as political constituencies around the world, like the pre-civil war American South, continued to invoke the New Testament injunction that "slaves be obedient to your masters" as their justification. Not to mention the derivative political theologies that provided ready justifications for bans on inter-racial marriage and, in very recent times, the ethical obscenity that was racial segregation and apartheid.
Similarly with the status of women. Supporters of polygamy would be able to justify their position based on biblical precedent. Advocates of equality would also have difficulty with Paul's injunction that "wives should be submissive to their husbands" (As a good Anglican, Thérèse has never been a particularly big rap for Saint Paul on this one). The Bible also teaches us that people should be stoned to death for adultery (which would lead to a veritable boom in the quarrying industry were that still the practice today). The same for homosexuals. And the biblical conditions for divorce are so strict that a woman could be beaten within an inch of her life and still not be allowed to legally separate.
The point is that nobody in the mainstream Christian Church today would argue any of these propositions. A hundred years ago, that was not necessarily the case. In other words, the definition of Christian ethics is subject to change, based on analysis of the historical context into which the biblical writers were speaking at the time, and separating historical context from timeless moral principles, such as the injunction to “love your neighbour as yourself”.
Against this particular Christian norm, and its secular moral corollary of "do no harm", and, in particular, "do no harm to others, especially the vulnerable", we have seen a range of social reforms over the decades where traditional, literalist biblical teachings have been turned on their head, often with the support of the churches. Including relatively recent legislative actions by Australian legislatures to decriminalize homosexuality. And much more recently, under my Prime Ministership, action to remove all legal discriminations against same sex couples in national statutes including in inheritance, taxation, superannuation, veterans affairs, family law, defence housing, Centrelink, child support, health insurance, citizenship and aged care.
Which brings us back to same sex marriage. I for one have never accepted the argument from some Christians that homosexuality is an abnormality. People do not choose to be gay. The near universal findings of biological and psychological research for most of the post war period is that irrespective of race, religion or culture, a certain proportion of the community is born gay, whether they like it or not. Given this relatively uncontested scientific fact, then the following question that arises is should our brothers and sisters who happen to be gay be fully embraced as full members of our wider society? The answer to that is unequivocally yes, given that the suppression of a person's sexuality inevitably creates far greater social and behavioural abnormalities, as opposed to its free and lawful expression.
Which brings us to what for some time has been the sole remaining obstacle in my mind on same sex marriage - namely any unforeseen consequences for children who would be brought up by parents in a same sex married relationship, as against those brought up by parents in married or de-facto heterosexual relationships, by single parents, or by adoptive or foster parents, or other legally recognised parent or guardian relationships. The care, nurture and protection of children in loving relationships must be our fundamental concern. And this question cannot be clinically detached from questions of marriage – same sex or opposite sex. The truth is that in modern Australia approximately 43 per cent of marriages end in divorce, 27 per cent of Australian children are raised in one parent, blended or step-family situations, and in 2011-12 nearly 50,000 cases of child abuse were substantiated by the authorities of more than 250,000 notifications registered. In other words, we have a few problems out there.
That does not mean, by some automatic corollary, that children raised in same sex relationships are destined to experience some sort of nirvana by comparison. But scientific surveys offer important indications. One of the most comprehensive surveys of children raised in same sex relationships is the US National Longitudinal Survey conducted since 1986 – 1992 (and still ongoing) on adolescents raised by same sex partners. This survey, published in the Journal of the American Academy of Paediatrics in 2010, concluded that there were no Child Behaviour Checklist differences for these kids as against the rest of the country. There are a number of other research projects with similar conclusions as well. In fact 30 years of research has seen the Australian Medical Association, the American Medical Association, the American Academy of Paediatrics and the American Psychological Association acknowledge that same sex families do not compromise children’s development.
Furthermore, there is the reality of a growing number of Australian children being raised in same sex relationships. Either as a result of previous opposite-sex relationships, or through existing state and territory laws making assisted reproduction, surrogacy, adoption and fostering legally possible for same sex couples or individuals in the majority of Australian states and territories. Furthermore, Commonwealth legislation has already recognised the legal rights of children being brought up in such relationships under the terms of Australian family law. Therefore, the question arises that given the state has already recognised and facilitated children being raised in same sex relationships, why do we not afford such relationships the potential emotional and practical stability offered by the possibility of civil marriage?
Finally, as someone who was raised for the most important part of his childhood by a single mum, I don’t buy the argument that I was somehow developmentally challenged because I didn’t happen to have a father. The loving nurture of children is a more complex business than that.
So where does this leave us in relation to the recent and prospective debates before the Australian Parliament? Many Christians will disagree with the reasoning I have put forward as the basis for changing my position on the secular state having a broader definition of marriage than the church. I respect their views as those of good and considered conscience. I trust they respect mine as being of the same. In my case, they are the product of extensive reflection on Christian teaching, the scientific data and the emerging reality in our communities where a growing number of same sex couples are now asking for marriage equality in order to give public pledge to their private love and for each other, and to provide the sort of long-term relationship commitment that marriage can provide for the emotional stability important for the proper nurture of children.
Further, under no circumstances should marriage equality legislation place any legal requirement on the church or other religious institutions to conduct same sex marriages. The churches should be explicitly exempt. If we truly believe in a separation of church and state, then the church must be absolutely free to conduct marriage ceremonies between a man and a woman only, given the nature of their current established theological and doctrinal positions on the matter. This should be exclusively a matter for the church, the mosque and the synagogue. It is, however, a different matter for a secular state. The Church must be free to perform marriages for Christian heterosexual couples without any threat of interference from the state. Just as the state should be free to perform marriage services for both heterosexual and same sex couples, and whether these couples are of a religious faith or no religious faith.
These issues properly remain matters of conscience for all members of the Parliament. Labor provides a conscience vote. The Liberals and the Nationals do not. They should. If they don't, then we should consider a national referendum at an appropriate time, and which would also have the added advantage of bringing the Australian community along with us on an important social reform for the nation. And for the guys and girls, like the former staffer who came to see me recently in a state of genuine distress, we may just be able to provide a more dignified and non-discriminatory future for all.
Some will ask why I am saying all this now. For me, this issue has been a difficult personal journey, as I have read much, and talked now with many people, and of late for the first time in a long time I have had the time to do both. I have long resisted going with the growing tide of public opinion just for the sake of it. Those who know me well know that I have tried in good conscience to deal with the ethical fundamentals of the issue and reach an ethical conclusion. My opponents both within and beyond the Labor Party, will read all sorts of political significances into this. That's a matter for them. There is no such thing as perfect timing to go public on issues such as this.
For the record, I will not be taking any leadership role on this issue nationally. My core interest is to be clear-cut about the change in my position locally on this highly controversial issue before the next election, so that my constituents are fully aware of my position when they next visit the ballot box. That, I believe, is the right thing to do.