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Overdue catchup for Aussie gays and lesbians

30 Apr

There is no doubt this is good news, so far as it goes: Matching rights for gay couples, Government moves on gay reform, and Opposition gives qualified support. That last story:

BRENDAN NELSON: Well as a matter of principle we believe that no Australian should pay a dollar more in tax or receive a dollar less in social security support, by virtue of their sexuality. Whilst we will steadfastly oppose gay marriage, gay adoption and gay IVF, we will carefully scrutinise the proposals that are being put up by the Government. And if they are affordable and reasonable, we will certainly be providing support to them.
JANE COWAN: How confident are you of winning the formal support of your colleagues on this?
BRENDAN NELSON: Well I’ve already made it very clear from the day of my election as leader, that one of the things that is very important to us as Liberals and National Party MPs, is that we will not under any circumstances support gay marriage, civil unions, gay adoption or gay IVF.
However, we must live in a country where you do not pay a dollar more in tax nor receive a dollar less in support from your country and welfare, by virtue of your sexuality. We will carefully examine the proposals that are being put up by the Government. And if they are affordable and if they are reasonably achievable, then they will enjoy our support.
JANE COWAN: The National senator Barnaby Joyce though, has already said he hasn’t made up his mind on this issue, is there much disquiet within the Party on this?
BRENDAN NELSON: Well I can only say to you again, that as far as I am concerned, as the leader of the Opposition, that we will not under any circumstances support gay marriage, or civil union…

The government too is stopping short of the Marriage Act, perhaps rightly (from a pragmatic point of view) divining that the majority of Australians would not want to go that far — yet. Brendan’s “principles” are interesting: We will carefully examine the proposals that are being put up by the Government. And if they are affordable and if they are reasonably achievable, then they will enjoy our support.

However, the government really is not too different on this one. The ACT’s legislation on gay unions still falls outside what the government is willing to endorse:

Attorney-General Robert McClelland says the Commonwealth remains opposed to ACT moves to allow same sex couples to hold a formal ceremony to recognise their relationships.

Next month the Federal Government will introduce legislation to remove discrimination against same sex couples in 100 Commonwealth laws.

But the changes will not apply to the Marriage Act.

Last year Federal Labor indicated it would allow states and territories to legislate on gay marriages but since then it has continued to oppose the ACT’s Civil Partnerships Bill. Mr McClelland says he would prefer to see a registration scheme for same-sex couples similar to the models adopted in Tasmania and Victoria. — ABC News

In welcoming these changes, and in that I am 100% with him, Arthur writes:

The government’s position is manifestly unjust, and simply nonsensical in the absence of some appeal to religious dogma (which, this being a secular liberal democracy with a secular liberal democratic constitution, it has no business appealing to). Its moves to end discrimination in other areas of Federal law only serves to highlight how unjust and nonsensical its policy of maintaining discrimination against same-sex couples in marriage laws really is.

Which means, I think, that the days of such discrimination are numbered.

One thing though: in Australia it isn’t strictly true that this [is] a secular liberal democracy with a secular liberal democratic constitution. Yes, with some variation, the state school system is famously “free, compulsory and secular”, but that’s about as far as it goes. Australia isn’t France, and the Code Napoleon doesn’t apply here. Nor is it the USA. As Marcellous said:

Nor do I know where this “freedom of religion” thing comes from. Actually, I do know: it’s a US concept. Miranda can’t help that: it comes with the neocon water and she after all was born in the US when her father was working there. As any reasonable neo-con actually ought to know (given their views on human rights) the only freedom of religion in Australia is the freedom from an established religion. The charitable treatment of religion is an indulgence, not a right…

—  Marcel contributes to freedom of religion debate

Australia does not constitutionally endorse any belief, not even secularism. Put positively, this means that all may promulgate and practise their particular take on the world, whether they come from faith or scepticism, or from what their granny told them, so long as what they say or do does not tend to the harm of others. People can wear headscarves or Mormon garments or thongs — though wearing nothing is still generally frowned upon in most public places. They can do whatever they like short of cannibalism or human sacrifice, pretty much. They can believe in fairies or the seven day creation, or  neither. There is something to be said for that. Such pluralism is messy and the tidy souls among us often despair of it, but we would be silly to throw it away.

See also Recycle 10: Is Australia a Christian country? and Is Australia a Christian country? Revisited….



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15 responses to “Overdue catchup for Aussie gays and lesbians

  1. Jim Belshaw

    April 30, 2008 at 1:52 pm

    On this one, Neil, I think that the sensible thing to do is to accept the change and then pick up other things later.

     
  2. ninglun

    April 30, 2008 at 1:56 pm

    I agree, Jim; it is after all quite a major move forward.

     
  3. AV

    May 1, 2008 at 6:48 am

    One thing though: in Australia it isn’t strictly true that this [is] a secular liberal democracy with a secular liberal democratic constitution. [. . .] Australia does not constitutionally endorse any belief, not even secularism.

    I don’t follow. If it is not the case that Australia is a secular liberal democracy, then what is the state religion?

     
  4. ninglun

    May 1, 2008 at 9:45 am

    My point is in the contrast with the French tradition on the one hand and the US on the other. Our system indeed has no state religion, Anglicanism once having been a de facto one on certain state occasions perhaps at least in the eyes of some. At the same time there is no official position on religion, which makes some of the storms we have seen in France over such matters as the hijab less likely at an official level in Australia. To say this country is officially secular is to go beyond what is actually the case; it could be said to be officially neutral.

     
  5. AV

    May 1, 2008 at 12:32 pm

    To say this country is officially secular is to go beyond what is actually the case; it could be said to be officially neutral.

    Section 116 of the Australian Constitution: “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.” (Emphasis added)

    I don’t know how it could be any clearer than that, and I agree with legal scholar Helen Irving that when the High Court has tended to side with the churches in their interpretation of this section of the Constitution with regard to tax exemption for religious bodies and the provision of taxpayer funds to religious schools, it has got it dead wrong.

    As for whether Australia is “officially neutral” with regard to religion as opposed to “officially secular,” I really don’t see the difference. Religious neutrality requires secularism: how could it be otherwise? For example, if the government were to appeal to a particular religious doctrine or tradition in order to justify its stance on gay marriage, it would be privileging that particular religious perspective over other religious (or non-religious) perspectives, and thus would be, by definition, no longer religiously neutral. It would be, in effect, imposing religious observance (of the particular tenet underlying the same-sex marriage ban). That I would call a very messy “pluralism”–so messy it could no longer reasonably be described as pluralism at all.

    If it is pluralism you desire, then you ought to support the notion that public policy positions be, as Barack Obama once urged, “universal, rather than religion-specific,” “subject to argument, and amenable to reason.”

    Put positively, this means that all may promulgate and practise their particular take on the world, whether they come from faith or scepticism, or from what their granny told them, so long as what they say or do does not tend to the harm of others. People can wear headscarves or Mormon garments or thongs — though wearing nothing is still generally frowned upon in most public places. They can do whatever they like short of cannibalism or human sacrifice, pretty much. They can believe in fairies or the seven day creation, or neither. There is something to be said for that.

    Aside from the fact that this is a complete red-herring, are you suggesting that “secularism” means dictating to people what they can and cannot believe?

     
  6. ninglun

    May 1, 2008 at 12:47 pm

    A well considered response, Arthur. The point I was seeking to make is that the kind of anticlericalism that one sees in French politics is quite different to the position we have taken, but that the religious charge one so often sees in US politics is also somewhat alien. In practice we seem to support being somewhat indifferent about religious and philosophical matters. In regard to gay marriage, when enough people see that it is a matter of equal rights, along with those we are already coming to recognise, that problem will resolve. This can be frustrating and is not dissimilar to the story of the legalisation (or decriminalisation) of gay relationships (but not lesbian — we’ve all heard that story about Queen Victoria not signing off on that as she couldn’t believe lesbianism existed — nice but probably apocryphal). In a neutral democracy where people’s opinions come from, whether it’s the priest or their own rational analysis or both or neither, isn’t all that relevant; what is relevant is what the voters will wear and what they will plump for when asked. Of course in trying to change what voters think, rational discussion and lobbying are essential, and in time have often proven to work. This is one hopes the trajectory for gay marriage etc, but there is still a way to go, it seems. My own reading of things based on discussions I have had is that probably a majority of Australians, for whatever reasons, are at this time uncomfortable about changing the marriage act. Now they could well be wrong, but I can understand governments taking account of that.

    Imposing a position that a majority are uncomfortable with, on the other hand, is more than likely to create a backlash. I think that is a lesson from the Keating period we need to take to; Howard’s success was partly a product of the Keating period being in its own way somewhat dogmatic — even if I personally supported most of the dogma.

    Queer Penguin makes a similar point in the comments on 2020 which I refer to in the previous post.

    For the constitutional position I think Marcellous got that right: freedom from religion is all that is enshrined there. Of course that extends to atheists, agnostics and Muslims, even if what the framers of the constitution had in mind was probably just Catholics, Anglicans, and Nonconformist Protestants. However, it doesn’t privilege anti-religion either.

     
  7. AV

    May 1, 2008 at 2:31 pm

    In a neutral democracy where people’s opinions come from, whether it’s the priest or their own rational analysis or both or neither, isn’t all that relevant; what is relevant is what the voters will wear and what they will plump for when asked. Of course in trying to change what voters think, rational discussion and lobbying are essential, and in time have often proven to work. This is one hopes the trajectory for gay marriage etc, but there is still a way to go, it seems. My own reading of things based on discussions I have had is that probably a majority of Australians, for whatever reasons, are at this time uncomfortable about changing the marriage act. Now they could well be wrong, but I can understand governments taking account of that.

    Obviously the government’s position on gay marriage is politically expedient. And I consider it a terrible blight on our liberal democracy that it is political expediency that can often determine whether a minority–racial, sexual, or otherwise–is granted equal treatment before the law. I’ll admit to being an idealist, but I want a government to actually provide a reasoned argument in favour of its public policy positions for a change, rather than resorting to the antiliberalism of ad populum reasoning, or the sheer pigheaded irrationalism of the appeal to tradition. E.g. “The government does not support same-sex marriage because the current law states that marriage is between a man and a woman” (I’m paraphrasing the Attorney-General on Radio National yesterday morning)–a rationale that, for reasons unexplained, the government is not applying to all those other laws which discriminate against same-sex couples, and which the government is seeking to rectify.

    Imposing a position that a majority are uncomfortable with, on the other hand, is more than likely to create a backlash. I think that is a lesson from the Keating period we need to take to; Howard’s success was partly a product of the Keating period being in its own way somewhat dogmatic — even if I personally supported most of the dogma.

    I don’t see what could be more dogmatic than simply asserting a position rather than properly defending it, which is what both the government and the opposition seem to be doing wrt same-sex marriage.

    Obviously there is a danger of a backlash. I don’t really think the danger is that great: if the majority are comfortable with removing discrimination in other areas of law, marriage law reform should not be a bridge too far for them. But that’s neither here nor there. In a liberal democracy, the danger of backlash should be weighed against the need to protect minorities and individuals against the prejudices of the majority. It is in this spirit, surely, that the government is removing discrimination against same-sex couples from 100 federal laws. And that’s what makes their position on same-sex marriage/civil unions all the more nonsensical, and all the more likely to shift somewhere in the hopefully not too distant future.

    However, it doesn’t privilege anti-religion either.

    I never suggested that it did or should.

     
  8. ninglun

    May 1, 2008 at 7:00 pm

    Given time, Arthur, I think we will have gay marriage recognised. I think that is almost inevitable after this present liberalising exercise.

    Meanwhile, our exchange seems to have drawn in a few others, doesn’t it?

     
  9. Kieran Bennett

    May 1, 2008 at 10:13 pm

    Social progress is not inevitable. It has to be fought for, and there is always the risk of a reaction. At the moment it seems that progress is inevitable because momentum is building.

    But things like the ACT’s Civil Unions bill do not exist as a matter of inevitability, I’ve been observing the hard fought campaign that has faced setback and reaction, but has managed to drag the ACT government this far. It came about because of hard work.

     
  10. ninglun

    May 1, 2008 at 10:19 pm

    Granted, Keiran; what I meant to say is that achieving this much, which would never have happened under Howard, is such a step that its logic leaves the way to completing the process much more likely, but there is going to have to be hard work still, and hard selling of the basic point that we are talking here of equal rights, not additional rights.

     
  11. Trevor Khan

    May 3, 2008 at 11:50 pm

    Neil,

    Apologies for having been away for some time.

    I have to say this issue has been a passion of mine for some time. When I was on the Family Issues Committee of the NSW Law Society there was an extended and passionate debate on the subject.

    It was interesting how the members of the Committee divided ie not on on traditional politcal biases.

    For instance, I argued for the recognition of gay marriage but was opposed by many far more “liberal” members of the Committee.

    It was also interesting that many in the debate drew a clear distinction between gay civil unions and “traditional” marriages. In essence, more were in favour of supporting gay civil unions, but felt to support gay marriage was a bridge too far.

    I should end by noting two things:

    Firstly, I suspect my views are in the minority in my own Party (The Nationals) but that the public should not presume that the debate within the party room would not see a diversity of opinions expressed;

    Secondly, notwithstanding my recognition that my view may not have majority support within the Party room, I wish Brendan would stop presuming to speak for my Party……

    Trev

     
  12. ninglun

    May 4, 2008 at 12:05 am

    Thanks, Trevor; your clarity on this issue may surprise some. (Trevor is a member of the NSW Legislative Council.)

     
  13. Trevor Khan

    May 10, 2008 at 8:36 am

    Neil,

    Just a brief note….the coming week will see a bill introduced into the Upper House entitled the Miscellaneous Provisions (Same Sex Relationships) Bill 2008.

    The Bill is designed to amend a number of acts, but princiapally it will (if passed) recognise the existence of the non birth mother as a parent of the child.

    There are a number of other consequential amendments.

    The Bill will go to shadow cabinet and then the joint party room this week so it will be interesting to see how the Coalition deals with the Bill….I am fairly confident it should be ok.

    Regards,

    Trev

     
 
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