Separate but equal

Michael Kirby’s inaugural lecture delivered last Wednesday in honour of the late John Marsden should cause us all to pause and consider whether the same-sex equality reforms currently being debated before the Australian Senate are truly capable of delivering same-sex relationship recognition until the issue of gay marriage is squarely addressed.

Justice Kirby makes an eloquent plea for the legalisation of gay marriage by making reference to his own personal experience.

Currently, marriage between same-sex couples is expressly prohibited by Commonwealth legislation and there is no uniform federal system which allows for civil unions between same-sex couples. As Justice Kirby states, the relationships of same-sex couples can only be registered -” rather like a dog or busker’s licence.

This column has previously canvassed the legal implications flowing from the unequal treatment of same-sex and heterosexual couples. However, a dimension which is often not explored is the extent to which the treatment of same-sex relationships as something different from heterosexual relationships -” albeit with equal legal status -” actually works to perpetuate discrimination by marking same-sex relationship with difference and stigma.

In a historical context where homosexuality has been taboo, those who advocate legal regulation which would confer separate but equal status to same-sex relationships need to be aware that this simply feeds into homophobic attitudes.

Despite all attempts to window-dress this issue, it is the equal treatment of gays and lesbians that homophobes such as South Australian Liberal Senator Cory Bernardi opposes. Senator Bernardi recently told the Senate he was opposed to the current raft of reforms before Parliament because he found the laws offensive in that it seeks to make same-sex couples virtually identical in treatment in Commonwealth law. Well yes, Senator Bernardi -” equality is about treating all citizens equal before the law.

If the Federal Government, and the Federal Opposition for that matter, are serious about equality for gays and lesbians, the views of homophobes like Senator Bernardi need to be publicly challenged. The legalisation of gay marriage is a crucial means of achieving this.

It is this very issue which has gone before a number of superior courts in the United States. Where this issue has been litigated, court after court, including the Supreme Courts of California, Massachusetts, New Jersey and Connecticut, have all ruled that excluding gays and lesbians from the institution of marriage violates all principles of non-discrimination and equality.

Australia is still playing catch up when it comes to this issue.