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Thursday, 20 September 2012
Page: 7497


Senator MARSHALL (Victoria) (13:11): Let me commend Senator Brown's excellent contribution to the Senate. Senator Brown is co-sponsoring the Marriage Amendment Bill (No.2) 2012 before us today, along with Senator Crossin, Senator Pratt and me.

As much as any other issue that I have addressed in my time as a senator, I am confident that on this issue I will be judged to have been on the right side of history. As recently as 1997, the year we were introduced to Darryl Kerrigan and his scepticism about the value of jousting sticks, homosexuality remained illegal in Tasmania, a legal divorce had yet to be granted in the Republic of Ireland and you could still smoke a cigarette in pubs and restaurants right across Australia. It is incredible to think how far our attitudes have shifted and almost impossible to conceive of going back to the way things were a scant 15 years ago. I am proud to say that the Australian Labor Party has kept pace with this change.

For the benefit of senators who were not present at last year's ALP National Conference, I will inform the chamber of the items inserted into the ALP national platform under the heading of 'Removing discrimination': Labor will ensure that all couples whether married or de facto do not suffer discrimination; Labor will amend the Marriage Act to ensure equal access to marriage under statute for all adult couples irrespective of sex who have a mutual commitment to a shared life; and these amendments should ensure that nothing in the Marriage Act imposes an obligation on a minister of religion to solemnise any marriage. Same-sex marriage is Labor Policy.

Today, most Australians understand that marriage at the most fundamental level is about a lifelong relationship based on love, commitment, responsibility and respect. As poll after poll shows, the majority of Australians understand that this definition of marriage, their definition, easily encompasses same-sex partners. Marriage equality is an issue with tremendous momentum in terms of popular sentiment. Approximately two-thirds of Australians now support marriage equality, up from 38 per cent in 2004. And it is fair to assume that, regardless of what happens in the Senate today, marriage equality in Australia is an inevitability.

I have listened with interest to a number of speakers on this matter but I am yet to hear an argument against marriage equality that could justify the disregard that is being shown by some toward the views of the clear majority of Australians. What I have heard have been uncritical appeals to tradition, vague and unsupported suggestions that same-sex marriage would somehow detract from marriages that currently take place and quite bizarrely an argument on the basis of discrimination. I wish to address each of these arguments in turn. It is important for us to be informed by history, but we should not be constrained by it. While the institution of marriage has long been of central importance in cultures all over the world, it has not remained static. As societies have evolved, so has marriage.

The popular contemporary definition of marriage I provided earlier has not always applied. Marriage has not always been about a relationship built on love and commitment. Less than a century ago women were seen as chattels or property for transaction through a marriage contract, no provisions were made for no-fault divorce, and marital rape exemptions existed until the mid-1980s. Mixed race marriages were prohibited on the basis that having 'mixed blood' children was seen as a threat to the preservation of distinct racial lineages. Dowries needed to be paid and women were subservient in every respect to their husbands. This is to say nothing of the other barbaric marital traditions that have happily been consigned to history such as the Indian tradition of suttee where a newly widowed woman is compelled to immolate herself on her husband's funeral pyre.

The argument against marriage equality on the basis of tradition is based on superficial logic and ignores those aspects of tradition that are inconvenient. But worse than the misguided adherence to tradition is the suggestion that marriage equality would somehow erode the value of heterosexual marriages that are recognised currently. Just once, I would like to hear a cogent, convincing explanation of why this is so. This is no idle curiosity on my behalf. If same-sex marriage will cause real, demonstrable harm to married heterosexual couples, I would like to know how.

As John Stuart Mill put it in his philosophical work On Liberty:

The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

Such is the justification for the banning of smoking indoors and in public areas.

But what harm is caused by same-sex marriage that could justify the ban that currently exists? How does the legal recognition of the love between two people of the same sex negatively impact upon the lives of others? Is there a same-sex marriage equivalent to passive smoking? Could such a thing ever be considered harmful?

Let us not forget what our role is in this chamber. We are here to consider and debate the legislation of the Commonwealth of Australia. Let us also not forget precisely how marriage is viewed by this legislation. As far as the law is concerned, marriage is a contract between two people and the state. It is not a contract between two people and a religion and it is most certainly not a contract between two people and everybody else. The suggestion that a marriage contract between two people somehow detracts from a separate marriage contract between two otherwise unrelated people is ludicrous.

The third argument I have heard in opposition to marriage equality was made on the basis of discrimination. Perversely, it was not made on the basis that marriage equality is itself discriminatory. Instead, it was made on the basis that marriage equality would lessen the ability of the community to discriminate against members of the LGBTI community. Of course, it should go without saying that a reduction in discrimination on the basis of sexuality is actually a desirable outcome. But, even putting this aside, there is nothing in this legislation that compels an individual citizen to privately acknowledge the legitimacy of a same-sex marriage in terms of their personal beliefs. In fact, this legislation has been drafted with the express intention of ensuring that no minister of religion can be compelled to solemnise a marriage, same-sex or otherwise.

Australia has come a long way towards eradicating legal discrimination against gay and lesbian people, but as long as same sex marriages are not recognised, we cannot claim to have finished the job. Whilst I am yet to hear a cogent and convincing explanation of the harm that same-sex marriages will cause to others, there is no doubt that discrimination against people on the basis of their sexual orientation has very real and sometimes tragic consequences.

The people who would be directly and profoundly affected by this bill are almost universally in favour of it. Those opposed to it will be completely unaffected or at least unable to articulate the harm that they maintain that a same-sex marriage will cause them. In this context, I fail to see how the parliament's continued opposition to marriage between people of the same sex can be justified. Whilst almost every facet of the institution of marriage has evolved over the years, there can be no question that same-sex attraction is, and always has been, a natural and normal feature of humanity. There can be no question that same-sex attracted people love each other and there can be no question that some same-sex attracted people have a desire to commit to each other for life, to the exclusion of all others, in a public ceremony that is recognised by the state.

There has been a lot of debate on this legislation and the depth of feeling on both sides of the argument has been plain to see. However, there is one point on which all present here and all participants in the debate seem to agree: that is the important and beneficial role that the institution of marriage has within our society. If marriage is such a valuable institution, if it is responsible for even a fraction of the social good that so many on both sides of this argument maintain, then surely we must make the institution of marriage available to be enjoyed by all members of the Australian community.