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Alternative Law Journal |
Because marriage is a basic human right and an individual personal choice, RESOLVED, the State should not interfere with same-gender couples who choose to marry and share equally in the rights, responsibilities and commitment of civil marriage.[3]
Another effort to sensitise the community to the need for
legalising same-sex marriage is the declaration of 12 February 1998 as the
National Freedom to Marry Day, which was received very positively in many parts
of the world.
Apart from these activities, gay activists and other
interested parties encouraged and supported gay and lesbian couples to take the
state to the court to challenge the prohibition of gay marriage, and urged
Members of Parliament to introduce bills proposing legalisation
of homosexual
marriage and of informal homosexual relationships in general. Overall, the
latter has been more successful in legalising
homosexual relationships than the
former, but neither of these methods achieved the legalisation of gay marriage.
So far, all court
cases relating to homosexual marriages have been unsuccessful.
The only state where a gay marriage was permitted by the courts was
Hawaii, but
this decision had no effect on the status of gay marriage in Hawaii and the USA
in general.
A similar trend is evident in the area of legislation, where
no country in the world legalised gay marriage. An interesting move towards
considering marriage for homosexual couples was made in the Netherlands in 1998,
after the government legalised same-sex relationships
in the form of partnership
registration. According to unconfirmed
reports,[4] on 16 July 1998 the second
chamber of the parliament decided (with 81 against 56 votes) to fully open up
marriage to gays and lesbians,
and (with 95 against 42 votes) to allow them to
adopt children. The government is reported to have agreed to prepare relevant
legislation
by 1 January 1999. Nevertheless, as stated above, at this stage, for
all countries, and particularly Australia, access to same-sex
marriage remains
as distant as it was before court battles began in the early
1970s.
Although attempts to challenge the prohibition of gay marriage
remained outside the boundaries of Australia, with most legal disputes
having
taken place in the USA, and to a lesser extent in Europe and New Zealand, the
concern about homosexual marriages is strong
also in this country for a number
of reasons:
• | gay marriage is a global phenomenon and affects Australia as much as other countries; |
• | according to research conducted by the author in this area, a significant number (about one-fifth) of gay and lesbian couples are in favour of marriage; |
• | gay people working with the author in a project related to same-sex relationships reported that a small but active group of gays and lesbians are working towards legalising gay marriage; and |
• | research evidence collected by the author suggests that a number of cohabiting gays and lesbians are considering a challenge to the state prohibition of marriage ‘in due time, no matter the outcome of legal reforms in this area, and no matter the expected outcome of such an action’ — as one respondent put it. |
Thus, it is time for the gay movement to search for reasons
for the failure to gain access to gay marriage, to re-assess its future
strategies, and to reconsider the relevance and purpose of the judicial way as a
means of legalising gay marriage. Briefly, did the
movement fail to achieve the
desired results because of the nature of homosexuality, the nature of marriage,
the type of our culture,
the nature of gay strategies, or all these factors? Is
there a need for new strategies to be devised? Is it worth pressing for
legalisation
of gay marriage or should one look for alternative options for
achieving the desired goals? In the discussion that follows an attempt
will be
made to search for some answers to these questions.
A review of the strategies of the gay movement to achieve same-sex marriage
highlights a number of factors which seem to have contributed
to the lack of
success. One such factor is the integrity, nature and logic of the argument
presented by gay activists, gay and lesbian
couples interviewed by the author,
and their legal advisers to demonstrate the need for legalising gay marriage. In
its most popular
form, this argument reads as follows: same-sex couples
cannot marry; because of this, they experience several problems; this
constitutes discrimination on the grounds of
sexual orientation; therefore,
same-sex couples must be allowed to marry. Most importantly, this is how the
argument has been interpreted by judges in many courts in the US and more
recently in New Zealand.
This argument is problematic in a number of
ways. It wrongly assumes that prohibition of gay marriage is the cause of the
problems
of gay couples; it gives the impression that the main concern of gays
and lesbians is rights and not marriage; and it handles the
notion of
discrimination in a way that does not support legalisation of gay marriage. I
will address each of these points.
In the first place, there is no logical or factual connection between the
premises and the conclusion of the argument: simply, cohabiting
gays and
lesbians experience problems in their relationships not because they cannot
marry but rather because their relationship
is not legally recognised; hence,
what causes problems is not the prohibition of gay marriage, but rather
the lack of legal recognition of homosexual relationships. Following
this, in order for these problems to be eradicated, the government does not
necessarily need
to introduce gay marriage, but rather needs to legally
recognise homosexual relationships. Partnership registration, application
of de
facto legislation in the area of same-sex relationships, and adjustment of laws
to cover same-sex relationships can be as useful
in solving such problems of
cohabiting gays and lesbians as gay marriage. For this reason, there is no
compelling reason to introduce
gay marriage.
More evident was the
emphasis of gays and lesbians on rights and responsibilities, to the extent that
the quest for gay marriage was
lost under the sounds of the battle. The general
impression given by gay activists, gay and lesbian couples and their legal
advisers
has been that their main concern is rights and legal equality with
heterosexuals, and while they may demand legal recognition of
gay marriage, what
they really want is equal rights. This is the way in which the argument for gay
marriage was interpreted by the
courts. For instance, in his concluding remarks,
Justice Gault of the Court of Appeal of New Zealand, delivering his verdict in a
case of three lesbian couples appealing against the decision of a court that
rejected their application to marry, noted very clearly
and conclusively:
the real complaint the appellants have is not that they are ineligible for the license to marry but that they are denied rights and privileges which are available to married persons. Where that is the case there may well be discrimination on the ground of marital status but that is not what we are presently concerned with.[5]
This is evident in the reasons given by gay organisations when
they attempted to justify the challenge of the prohibition of gay marriage.
For
instance, the Action for Gay Marriage (AGM) organisation in its argument for
legal recognition of homosexual ‘partnerships’
and
‘relationships’ demanded that gay and lesbian couples be given
‘full legal relationships
status’;[6] the cultural,
symbolic, religious, and social elements of marriage have been given little, if
any, weight, in this and similar documents.
AGM saw the benefits of same-sex
marriage in gaining recognition as legal next-of-kin, protection under the
Matrimonial Properties Act, and social acceptance — not marital
status per se.[7]
In a similar
manner, the co-director of the Partners Task Force for Gay and Lesbian Couples
lists the following ‘compelling
reasons for legal marriage’: social
integration (‘marriage is a symbol of grown-up’); no-marriage is a
symbol of
childishness; family emergencies (referring to about 170 rights
married people have — money matters, namely, costs non-married
gays and
lesbians incur every year; intimacy, namely, rights to visitation, medical
decision-making, supervisorship, child custody,
wrongful death, etc.); and
immigration rights.[8] Here, marriage
was seen as a means to an end and not as a goal in itself. This was evident also
in Australia. Although no such challenges
have happened in this country, the
reasons given by gays and lesbians arguing in defence of gay marriage were
associated almost exclusively
with rights and responsibilities rather than with
being married.
The obvious points that emerge out of this debate are that
the concern of gays and lesbians is not the licence to marry but legal
rights;
and that such rights do not justify marriage, but — if anything —
legal recognition of gay relationships. Those
arguing for gay marriage have not
stressed the importance of marriage as an institution; and have not explained
convincingly why
the only way to solve their problems is gay marriage and not,
say, de facto legislation, registered partnership, or adjustment of
relevant
laws to include same-sex relationships, which are equally effective. These
alternative forms of action promote social integration
and social acceptance of
gay couples, and assign them rights and obligations that are similar to those of
gay marriage. Many countries
have used these alternative forms of action to
regulate homosexual relationships and assigned rights and responsibilities to
gay
and lesbian couples, who seem to be content with these legal arrangements.
Registered partnerships seem to be the most popular form
of recognition in most
parts of the world.
More involving and contentious is the way in which gay activists treated discrimination. In most cases, discrimination:
• | was based on grounds of sexual orientation (and not on marital status), |
• | was not justified adequately, |
• | was difficult to prove, |
• | offered a weak point that could be easily dismissed by the courts, and |
• | assumed an unsubstantiated link between marriage and discrimination by arguing that because gays and lesbians are discriminated against on the grounds of sexual orientation they must be allowed to marry! |
But even proving that discrimination exists
in the first place is not an easy task, as we shall see next.
Let us
start from the beginning: in the first instance, for many critics, the gay
activists’ argument might have established
the presence of differential
treatment but not of discrimination; and differential treatment does not
necessarily mean discrimination.
Referring to the NZ case, Justice Gault from
the Court of Appeal of New Zealand noted that the argument proved that
differential
treatment existed but not discrimination and ‘to
differentiate is not necessarily to discriminate. It is necessary to distinguish
between permissible differentiation and impermissible differentiation amounting
to discrimination.’ Apart from this, it was
submitted that prohibiting
gays and lesbians marrying does not constitute discrimination because such a
restriction applies to all gays and lesbians. When homosexuals are
compared to heterosexuals, it is often admitted that this constitutes
differential treatment
but this is thought to be lawful. Hence, no
discrimination!
As Justice Gault put it:
creating by law the status of child, adult, male, female is not discrimination though there may be discrimination in the law when rights or restrictions are attached to persons having such status. So too the establishment and maintenance of the institution of marriage is not itself discriminatory.
More specifically, discrimination on the grounds of sexual
orientation is as lawful as many other prohibitions of marriage, prohibitions
which in principle restrict all people intending to marry, regardless of their
sexual orientation. For instance, women cannot marry
already married men; and
men cannot marry their sister; and women cannot marry a 12-year-old person. All
these prohibitions are discriminatory
but lawful nonetheless; as lawful as the
prohibition that same-sex couples cannot be allowed to marry. Arguing,
therefore, for same-sex
marriage on the basis of discrimination on the grounds
of sexual orientation is neither logically convincing, nor legally acceptable.
It is not convincing because the lack of rights and obligations (and the
associated problems) are not caused by the inability to
marry but by the lack of
legal recognition. And it is not acceptable because the people of Australia have
instituted laws through
the government which consider discrimination on the
basis of sexuality as lawful, and these laws are still valid.
Obviously,
arguing that because there are laws which tolerate ‘lawful’
discrimination against gays and lesbians this discrimination
must remain may be
acceptable to the courts, but not necessarily to the critical law maker. Indeed,
as one commentator noted, ‘one
of the reasons for anti-discrimination law
is to strike down discriminatory laws’, and having discriminatory laws
does not
make discrimination right! However, this is beside the point of our
argument. Our point here is not that because laws are discriminatory
we have to
accept discrimination, but that, as it stands, the legal structure of this
country supports this lawfulness of discrimination,
and makes it binding for the
courts. If the lawfulness of this discrimination is to be challenged, the courts
are the wrong battle
field for such a challenge. Even if the courts decided that
the couples were indeed unlawfully discriminated against and permitted
marriage,
their decisions would have been rejected by the state anyway, as was the case in
Hawaii.
Hence, the logic of the argument presented by gay activists and
their legal advisers in support of gay marriage was not strong enough
to
convince the courts that unlawful discrimination existed; that this justified
legalisation of gay marriage; and that gay marriage
was the only way of dealing
with the situation at hand. In the NZ case, for instance, the case for
discrimination was thought to
be weak and far from convincing. For instance,
Justice Keith of the NZ Court of Appeal found no discrimination in not allowing
homosexual
couples to marry, simply because the definition of marriage limits
the institution of marriage to couples of a different sex only.
In a similar
manner, Justice Tipping, in the same case, argued that although there was
‘prima facie discrimination’ such
discrimination was lawful.
It can be argued that, in legal terms, it could have been easier, less
involving, less controversial and probably more successful
in its outcome to
focus the argument for gay marriage on discrimination on the grounds of marital
status rather than of sexual orientation.
For instance, this argument could have
been formulated as follows: same-sex couples are not allowed to marry; this
constitutes discrimination on the grounds of marital status; therefore same-sex
couples
should be allowed to marry. Such an argument would have been
logically and legally more sound, and could have been taken more seriously by
the authorities.
Logical and legal faults in the argument led inevitably
to its dismissal, and this to feelings of defeat and disappointment, and to
bad
publicity. As one of our respondents noted, the headline ‘Gays denied
marriage again’, following each unsuccessful
court case, presented not
only another declaration of defeat, a sense of solidarity and victory in the
heterosexual front, or a summary
of a sad story, but also an official testimony
and a reinforcement of the common belief that gays and lesbians are not suited
for
marriage. These verdicts strengthened also fears and doubts among gays and
lesbians who were insecure about their feelings towards
gay marriage as a
lifestyle. A gay who has been a supporter of gay marriage for several years
described the message of the latest
verdict in the New Zealand case as
‘being struck by lightning’, and thought that ‘news of this
kind eats up bit
by bit what is left of the energy to fight the system’. A
similar feeling was expressed also by heterosexuals, many of whom
saw such court
decisions as a victory that strengthened their conviction that gays and lesbians
are not suitable for marriage.
Particularly with many critics from within
the gay community rejecting the relevance, sanity, or suitability of marriage
for gays
and lesbians, fears and doubts about same-sex relationships had, in
turn, an impact on public opinion, and on the views of judges
and lawyers and of
Members of Parliament. The latter ultimately formed the conviction that it is in
the best interest of all concerned
to set same-sex marriage aside and either
dismiss it once and for all, or concentrate on legal recognition of same-sex
relationships
in another way.
Weakness and misplacement of the focus of the argument were not the only difficulties of the strategy of the gay community to achieve same-sex marriage. Incorrect focus of such action was another. Simply, addressing the prohibition of marriage at the court level was politically incorrect, and legally inappropriate. During court deliberations it became clear that the place for defining the legal status of same-sex marriage was the parliament and the people, and not the courts. It was repeatedly stated that courts have no jurisdiction to decide about the structure and the fate of marriage. For instance, Justice Tipping, delivering his judgment on the NZ case in 1996 noted:
a radical change in an institution so fundamental to our society as marriage, with all the consequential effects, should be brought about by this Court only if we can discern with clarity and by a legitimate process of statutory interpretation that this is what Parliament has intended
which, of course, was not the case. He noted further that courts
and judges may interpret but do not legislate: ‘Parliament
has reserved to
itself the legislative functions’.
Justice Richardson from the
same court supported further this position when he noted that ‘to
accommodate same-sex marriage would require fresh legislation, which is the
function of the Parliament’. Finally, Justice Tipping from the Court
of Appeal of New Zealand stated in his concluding remarks:
the Marriage Act of 1955 stipulates that marriage may take place only between a man and a woman. If that is discrimination Parliament has expressly sanctioned it. On that basis, I would dismiss the appeal.
On the basis of this, the case of same-sex marriage appears to have been lost almost before it entered the courts — a futile exercise. This suggests that a change of strategy on this issue is more than obvious.[9]
A serious drawback in the movement for same-sex marriage has been the fact
that the largest part of the coupled gays and lesbians,
and of the gay community
in general, neither took same-sex marriage seriously, nor participated actively
in the gay-marriage movement.
The issue of gay marriage seems to be an issue of
the minority. The queer media took a similar attitude to this issue. Reports on
same-sex marriage have been very scarce. Many gays and lesbians surveyed by the
author recently complained that most of the tabloids
in the area of Sydney and
Melbourne rarely serve the needs of coupled homosexual people; instead
‘they are flooded by raw-sex
news and advertisements that are mainly
geared towards the single, sex-seeking male homosexual’. Be that as it
may, the fact
remains that stories on same-sex couples are very infrequently
seen in queer newspapers, and when they appear, they mostly contain
brief
‘news’ items, in most cases from overseas.
Beyond this, the
number of couples who decided to challenge the prohibition of marriage has been
minute. In the USA, in a period of
27 years just over 20 such cases were
reported. Either gay and lesbian couples have been deterred by the conditions
surrounding court
proceedings, or they have realised that courts are
ineffective, or have no interest in marriage. The small number of couples who
took advantage of the law reforms in Northern Europe and established homosexual
unions is equally puzzling and disappointing; as
is the number of gays and
lesbians who decided to register their relationship in San Francisco. In the two
years leading up to 1995
only 1590 same-sex couples did
so.[10]
In Australia, low
participation rates in court challenges and formalisation of gay relationships
strengthen the belief that the majority
of gay and lesbian couples have no
interest in marriage. As shown in the studies conducted by the
author,[11] only about one-fifth of
the gays and lesbians surveyed demonstrated an interest in same-sex marriage.
The reasons for this negative
attitude to gay marriage may be direct financial
costs, fear of losing benefits or
employment,[12] and uncertainty
about how friends will react, loss of faith in marriage as an institution, or
feelings of aversion against its patriarchal
structure. There are gays and
lesbians who feel that asking for rights to marriage is not different from
asking the heterosexual
community to approve homosexual relationships, which, of
course, is not acceptable. Similarly, many gays and lesbians feel that marriage
is an institution for heterosexuals and not for homosexuals; that marriage is a
step to subjugation and not to
liberation,[13] or that marriage
oppresses and brutalises
women.[14]
It is, therefore,
not coincidental that the Australian Lesbian and Gay Legal Services did not
recommend marriage as the form of legal
recognition of same-sex
relationships.[15] Instead, in 1993, they recommended registration of domestic
partnership, and in 1994, de facto legislation. In a similar vein, the Equal
Opportunity
Commission of Victoria, after considering the submissions made in
response to a discussion paper issued in
1997,[16] produced a report in March
1998, in which it ‘stopped short of recommending that gay marriage be
recognised’. Last but
not least, relevant bills introduced in many
countries, and in Australia (1997 and 1998) and New Zealand (1997), followed
exactly
the same path: no same-sex
marriage![17] And yet, there are
Australian gays and lesbians who believe in gay marriage (about 20%), some of
whom are currently considering a
challenge to the prohibition of gay marriage in
the courts.
The majority of gays and lesbians seem to opt for models of
interpersonal relationships which do not coincide with traditional models
such
as marriage and the family. Kate
Weston,[18] for instance, referring
to gay and lesbian relationships, calls gay families ‘Families we
Choose’, stressing the element
of choice that allows people of a diverse
background and relationship to establish a family. Such families are not for
‘relatives’
only. In the same context Richard Mohr, speaking from
within the gay community and particularly the group Partners Task Force for
Gay
and Lesbian Couples, projects marriage models for gays and lesbians which rest
on freedom, pluralism, and personal
choice.[19] These models are totally
different from the heterosexual marriage model. This idiosyncrasy of traditional
marriage is evident also
in Europe.
Rauchfleisch,[20] for instance,
referring to Morgenthaler,[21] notes
that the relationships which mark the traditional marriage are not a model which
corresponds to the personality of gays and
lesbians.
The obvious
detachment from and lack of commitment to the cause of same-sex marriage
identified among many gays and lesbians is shown
also in a paper written by
Demian, the co-director of the organisation Partners Task Force for Gay and
Lesbian Couples.[22] The author
notes that the gay community itself is the first impediment to marriage: gays
demonstrate a high level of apathy and a
lack of interest in marriage; they live
underground, worrying about their ‘own closets’ and trying to
protect their personal
interests and safeguard their personal, social and family
rights; and they show no interest in same-sex marriage. Demian notes further
that gays and lesbians have a low opinion of themselves, believing they are not
equal to their heterosexual counterparts, and feeling
they are not worthy of
equal rights. Demian informs finally that in 1993, when the Texas State
Representative, Glen Maxey, proposed
legal marriage, ‘his office was
flooded with protests, some from members of the gay community’; and
‘when Ben and
Marcial Cable-McCarthy sued California for marriage in that
same year, they received the most vocal support from straight people,
and the
most antagonism from the gay community’.
Obviously, without strong
commitment to and support for same-sex marriage on the part of the gay
community, progress and success in
this area cannot be achieved. One wonders
— as one respondent noted — ‘whether the issue of gay marriage
is an
issue of the gay community or a project of the vocal few’. With a
situation as weak, confusing and divisive as this, it is
not surprising that the
heterosexual community and the government responded to the quest for same-sex
marriage the way they did.
One of the most powerful forces against legal recognition of same-sex
marriage is public resistance, which comes from the heterosexual
community and
especially from conservative circles. Even most of those who have reservations
about the relevance and social significance
of marriage seem to defend it as an
institution, and to resent changes in its structure — especially attempts
to make it accessible
to gays and lesbians. In most cases, resistance to
same-sex marriage came as a form of defence against those who appeared to
‘threaten
culture, traditions, religion and morality’. In this
sense, the battle the gay community is faced with is a rather uneven one:
it is
about the good and the bad, the right and the wrong, the moral and the immoral,
and one that is almost impossible for gays
and lesbians to win.
From a
political perspective, same-sex marriage became a contentious issue: overall,
political parties weighed the pros and cons of
taking a stance on the issue of
same-sex marriage. They had to be cautious so as not to offend the conservatives
but also not to
lose the political support (read votes!) of the gay community.
Opting for a less ‘offensive’ alternative, such as ‘de
facto
relationships’ or, more so, ‘registered partnerships’ has
proved to be the convenient way out for many governments.
These options helped
to ‘save’ marriage, to allow certain benefits to cohabiting gays and
lesbians, and to keep the peace
in the same-sex marriage front.
In the
heterosexual community, views and opinions are often based on negative
stereotypes. In several cases, it was
found[23] that many heterosexuals
equated homosexuality with ‘sexuality’, or even perverted sexuality
(for example, promiscuity),
based on hearsay, but also on reports of the queer
press, which many found overly offensive. Advertisements in gay newspapers and
the ‘circle of naked bums’, as someone called it, shown on TV during
the Mardi Gras Parade of 1997, ‘has no parallel
in any heterosexual
demonstration’ and is certainly unacceptable in the context of the
institution of marriage. Similarly,
the average Australian cannot comprehend
that ‘a man can have a husband, and a woman can have a
wife’.
A very significant factor that guides the attitudes of the
heterosexual community is its strong identification with the institution
of
marriage. Matrimony appears to be the ‘registered trademark’ of
heterosexuality which homosexuals are not entitled
to. Use of this trademark by
homosexuals not only violates the ‘rights’ and ‘vested
interests’ of heterosexuals
and the integrity of heterosexuality but also
downgrades the value of the institution of marriage. Speaking to heterosexuals
about
this matter one gets the impression that marriage is as valuable and as
precious to heterosexuals as the coat of arms was and still
is to certain
families, and as respectable and untouchable as the flag is for a nation.
No-one can insult or misuse marriage, and no-one else can use it except
heterosexuals. It is argued, further, that
no-one can allow homosexuals entry to
what has been for millennia the domain of heterosexuals.
So
unreasonable, antiquated or unrealistic as the views of many Australians on
same-sex marriage may seem to be, they are a part of
the ‘dominant
culture’, and a view which counts in matters of social policy. Head-on
collision with publicly asserted
and supported views and opinions is futile. It
is politically more correct to avoid such confrontations than engage in them and
lose.
Although giving up altogether may not be the preferred option, considering
more suitable strategies is a useful compromise.
This discussion shows that the failure of the gay movement to achieve
same-sex marriage is associated among other things with the
logic of the demands
for a gay marriage, the emphasis on courts rather than on the parliament as the
means of achieving this goal,
the lack of support from the gay community and the
strong resistance on the part of the heterosexual community. There are obviously
many more contributing factors, and some of these are more influential in some
countries than in others, but the factors noted here
seem to be the most
important, and also most instrumental in shaping the fate of gay marriage in our
community. The obvious result
of this failure is that the options for action
that remain open to cohabiting gays and lesbians have been significantly
reduced.
First, gay marriage is out of the question: neither the courts nor the
parliament nor the majority of gays and lesbians are in favour
of gay marriage.
Second, judicial challenge to the prohibition of gay marriage has proved to be
unpopular, slow, very involving,
painful and costly, often generating a negative
exposure to the media, and producing outcomes that are more than disappointing.
Thus,
legalisation of same-sex relationships through marriage proves — at
this stage at least — to be the least promising option.
For
Australia, where for about one-fifth of gay and lesbian couples marriage is an
option, and where the battle for a gay marriage
appears to be about to begin,
this conclusion is very important. Experience from other countries shows that
the likelihood of Australian
gays and lesbians winning a battle for gay marriage
is close to nil. With gay marriage being eliminated as an option, cohabiting
gays and lesbians may have only two real alternatives available to them: these
are application of de facto legislation in the area
of same-sex relationships,
and registration of domestic partnerships. (Adjustments of laws to include also
homosexual couples has
already begun and is expected to proceed in the
future).
Of the two alternative models, employing de facto legislation in
the area of homosexual cohabitation is the least favourable and least
desirable
option. Although de facto status brings many important benefits to homosexual
partners, such as rights and obligations
that resemble those of married people,
it also has many disadvantages. In the first place, de facto status is legally
established
without the knowledge and consent of the partners and is, therefore,
imposed on them unknowingly and unwillingly. It is practically
forced on
cohabiting gays and lesbians after living together for a set period of time, no
matter whether they accept it as a legally
binding relationship, and no matter
whether they wish to take on full responsibility for their partner. Following
this, every gay
and lesbian in this country who has lived together ‘in the
nature of marriage’ for a period of time determined by the
government, is
assigned de facto status. This will deprive gays and lesbians of their
self-determination and personal independence,
and subjugate them to rules and
conditions they may not accept. Most of all, this will permit state authorities
to interfere in their
lives at will, and ultimately result in a forced outing of
closeted gays and lesbians (who are reported to be in the majority).
So
fictitious as this might appear to be, it is realistic. For instance, living
together for two or three years (as the state sees
fit) will generate
responsibilities, which can open up the way to blackmail and exploitation, and
will permit the state to take relevant
action, for example, if there is a
suspicion that the partners have violated state regulations related to
couple’s duties.
Such cases may be when a gay is unemployed and receives
unemployment benefits while his partner earns a substantial income; or when
a
lesbian receives single mother’s benefits while living in a homosexual
cohabitation for a significant period of time. The
important point here is not
the eventual loss of benefits but rather the fact that the government will have
the right to investigate
the sexual orientation of the partners and the nature
of the relationship, which many gays and lesbians may wish to keep clandestine.
Homosexuals working in high ranking positions may fall prey to hatred, envy or
political games, and sustain considerable loss in
their personal, economic and
social life. This could result in forced ‘outing’ of every
cohabiting homosexual in this
country. Under this regime, all gay and lesbian
couples would ultimately lose anonymity and invisibility in the community and
the
closeted ones would live in constant insecurity and fear. Obviously, for
those who value privacy and secrecy, de facto status is
the most threatening
disaster and one that seriously jeopardises self-determination, privacy,
independence, and personal choice.
The other option, the registered
domestic partnerships, has the advantage that it would allow partners privacy
and independence, as
well as personal choice and freedom to register their
relationship, to cohabit without legal registration, or to stay single, an
advantage not available in de facto arrangements. A relationship would be
established legally only if the couple wish and when they
decide to establish
it. This excludes state interference and domination over personal preferences
and wishes. As well, on registration,
gay and lesbian couples would be assigned
rights and responsibilities which cover many of those referred to by gay
activists, whose
number and extent could be negotiated, anyway. The only serious
disadvantage of this option is that it entails some discrimination.
For
instance, by leaving the registration of the relationship up to the couple, the
decision to register or not will ultimately remain
with the strong and powerful
partner. The weaker partner who sees material or other advantages in
registration will have no chance
to register it, if the strong partner
disagrees, and may therefore lose privileges she or he might deserve.
The
way forward for the gay movement is:
• | to pursue legal recognition through the option of registration of domestic relationships; |
• | to negotiate with the government the range of rights and obligations to be contained in this lifestyle; and |
• | to continue with public awareness campaigns aiming to sensitise the community positively towards homosexuality and homosexual unions, and eventually to gain understanding, acceptance and support. |
Changing attitudes will gradually
motivate government to adjust and reform policies and practices in this area.
Time will tell whether
same-sex marriage will become an option worth pursuing.
Currently, such a pursuit is pointless, ineffective, and certainly
counterproductive.
References
[1] See for example Eskridge, W.N.,
The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment,
Free Press, New York,
1996; Eskridge, W.N., ‘A History of Same-sex
Marriage’, (1993) 49 Virginia Law Review, pp.1419-1513; Brown, J.,
‘Competitive Federalism and the Legislative Incentives to Recognise
Same-sex Marriage’, (1995)
68 Southern California Law Review,
pp.745-839. Damslet, O., ‘Same-Sex Marriage’, (1993) 10 NY Law
School Journal of Human Rights, pp.555-93; Strasser, M., Legally Wed:
Same-sex Marriage and the Constitution, Cornell University Press, 1997;
Sullivan, A., Same-Sex Marriage: Pro and Con: A Reader, Vintage Books,
1997; Wilson, S., ‘The Prison “Soft Cell”’, Sunday
Herald Sun, 20 July 1997, p.51; Wolfson, E., ‘Crossing the Threshold:
Equal Marriage Rights for Lesbians and Gay Men and the Intra-community
Critique’, (1995) XXI 3 NYU Review of Law and Social Change,
pp.567-615.
[2] See Wolfson, Evan,
Winning and Keeping the Freedom to Marry for Same-Sex Couples (1995) published
on the Internet by Partners Task
Force for Gay and Lesbian Couples
(http://www.buddybuddy.com/
wolfson1.html).
[3] National
Freedom to Marry Coalition, National Freedom to Marry Day — February 12,
(1998) published by the Coalition on the
Internet by the National Freedom to
Marry Coalition (http://nz.com/NZ/Queer/
OUT/News_199801/19980113f.html).
[4]
See Lambda Nachrichten, (1998) ‘Heiratsachen. Niederlande: Jetzt auch
Heirat’, Lambda Nachrichten. Oesterreichs Fuerende
Lesben- und
Schwulenzeitschrift, 3, p.47.
[5]
Quilter and Pearl and Ors v Attorney-General [1997] NZCA 207; [1998] NZFLR
196.
[6] Action for Gay Marriage,
The Essence of the Case, 1997, published on the Internet by the Action for Gay
Marriage (http://www.base2.co.nz/
agm/essence.html).
[7] Action for
Gay Marriage, Benefits of legal recognition for gay and lesbian marriages, 1997
published on the Internet by the Action
for Gay Marriage
(http://www.base2.co.nz/agm/benefits.html).
[8]
See Demian, Most Compelling Reasons for Legal Marriage, 1997, published on the
Internet by the Partners Task Force for Gay and Lesbian
Couples,
(http://www.buddybuddy.com/demian-1.html).
[9]
See Demian, Legal Marriage: The First Impediment, 1997, published in the
Internet by the Partners Task Force for Gay and Lesbian
Couples
(http://www.buddybuddy.com/demian-2.html).
[10]
The Partners Task Force for Gay and Lesbian Couples group, in a document
published in the Internet in 1995 entitled ‘Factoids
on domestic
partnership benefits’ (see,
http://www.buddybuddy.com/d-p-fac.html).
[11]
See Sarantakos, S.,’Nature of Same-sex Relationships and Legal
Recognition’, 1998a, submitted for publication; also Sarantakos,
S.,
‘Legal Recognition of Same-sex Relationships: The Views of Gays and
Lesbians’, (1998b) 23(5) Alternative Law Journal
222.
[12] This notion has
been supported also by a number of overseas writers. See e.g. Posner, R., Sex
and Reason, The President and Fellows of Harvard College, Cambridge, 1992;
Eskridge, 1996, ref.1, above, p.
70.
[13] See, for instance,
Polikoff, N.D., ‘We will Get what we Asked for: Why Legalizing Gay and
Lesbian Marriage will not “Dismantle
the Legal Structure of Gender in
Every Marriage”’, (1993) 79 Virginia Law Review; Ettelbrick,
P.L., (1992) ‘Since When Is Marriage a Path to Liberation? in S. Sherman,
(ed.), Lesbian and Gay Marriage: Private Commitments, Public Ceremonies,
Philadelphia: Temple UP,
pp.20-26.
[14] Eskridge, Action
for Gay Marriage, No one is Forcing Marriage on Anyone, 1997 published on the
Internet by Action for Gay Marriage
(http://www.base2.co.nz/agm/lesbianconcerns.html).
[15]
See Lesbian and Gay Legal Rights Services (LGLRS), ‘The Bride Wore Pink:
Legal Recognition of our Relationships’, Discussion
Paper, Gay and Lesbian
Rights Lobby, Sydney, 1993,
1994.
[16] See Equal Opportunity
Commission Victoria, ‘Same Sex Relationships and the Law’,
Discussion Paper, Equal Opportunity
Commission of Victoria, Melbourne,
1997.
[17] The Significant
Personal Relationships Bill introduced by Clover More to the NSW Parliament
in June 1996, and the De Facto Relationships (Amendment) Bill introduced
by Elizabeth Kirkby in June 1998, proposed to cover same-sex relationships do
not speak of marriage. The Equal Opportunity
Commission of Victoria, in a recent
summary of the responses to the Discussion Paper it issued in 1997, did not
recommend marriage
either. Similarly, in New Zealand, the Succession
Adjustment Bill prepared by the Law Commission in 1997 proposed de facto
relationship legislation as the option for legal recognition of same-sex
relationships, not marriage.
[18]
See Weston, K., Families we Choose. Lesbians, Gays, Kinship, Columbia
University Press, New York,
1991.
[19] See Mohr, R.D., What
is Marriage Anyway?, 1997, published on the Internet by the Partners Task Force
for Gay and Lesbian Couples
(http://www.buddybuddy.com/Mohr-2.html).
[20]
See Rauchfleish, U. ,Schwule, Lesben, Bisexuelle, Vandenhoeck and Ruprecht,
Göttingen, 1996, p.36. Rauchfleisch, U. Alternative
Familienformen.
Einehen, gleichgeschlechtliche Paare, Hausmänner, Vandenhoeck and Ruprecht,
Göttingen, 1997.
[21] See
Morgenthaler, F., Homosexualität. Heterosexualität. Perversion,
Fischer Taschenbuch Verlag, Frankfurt/M,
1987.
[22] See Demian,
‘Legal Marriage: The First Impediment’, 1997, published on the
Internet by the Partners Task Force for Gay
and Lesbian Couples
(http://www.buddybuddy.com/demian-2.html).
[23]
See Sarantakos, above, 1998a, 1998b.
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