the right to equal rights
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The decision of the United States Supreme Court on Friday that the Constitution guarantees due process and equal protection under the law means that the bans on same-sex marriages in 13 states are overturned. The decision comes weeks after Ireland voted in a referendum to permit same-sex marriage. These are two of the most profoundly Christian societies in the world, with abortion still illegal in Ireland. Yet they can see that the right to marriage is one based on equal rights. There are two main issues for Australia in the discussion about gay marriage and that is religious views and that marriage is an institution in society that mustn’t be changed.
Australians love to complain when the interpretation of other religions imposes on the rights of others. Some of those that oppose gay marriage want to ban burkas and they reject the idea of religion being a part of politics and law-making in other countries. Australians wish to believe that church and state are separated but they aren’t and the conversation around same-sex marriage highlights that. Our Prime Minister does not consider gay marriage a major issue in Australia because he does not agree with it, based on his religious and personal views. Tony Abbott has said it is a matter for Parliament rather than a popular vote through a referendum. Although Parliament is meant to represent the people of Australia, although that is impossible if when the Parliament comes around to considering it some Members of Parliament are not allowed a conscience vote. Various national research polls from 2009-2012 showed between 62 -70%[1] of Australians overall support marriage equality with 81% of young people (18-24 years) supporting marriage equality. Over 50% of Christians supported marriage equality and 76% of Coalition voters wanted a conscience vote to be allowed on the issue. Not only should religion not be a part of political decision-making but the attitudes of the Prime Minister and other politicians ignore the will of the Australian people and restrict equality.
Protecting the tradition and institution of marriage is too often an argument to restrict the right to marriage to a man and a woman. The recent decision by the US Supreme Court comes almost 50 years since the landmark 1967 ruling in Loving vs Virginia which saw state laws barring interracial marriages being struck down. In Friday’s Supreme Court decision, Justice Anthony M. Kennedy, in the majority wrote “The nature of injustice is that we may not always see it in our own times… The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” Just like many laws we have had in the past and interpretations of legal and religious doctrines, progress and time shows that what a society may have accepted as law and culture is no longer acceptable for a society that prides itself on being free and equal.
We don’t have a very long Constitution in Australia, and not one (like the US) that safeguards equal rights for citizens. For this reason the Constitution doesn’t do much to protect the rights of citizens from discrimination. The best we can do is rely on section 75, which allows the High Court jurisdiction to hear matters arising under treaty. Australia has signed The International Covenant on Civil and Political Rights that states the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination.
So although Tony Abbott says Australia will not blindly follow other countries to legalise gay marriage (already hypocritical as we love to jump on the bandwagon to war) he should not let his religious personal views hinder the will of the people and infringe on the equal rights of citizens. The problem is that Australians have very few legal rights maintaining freedoms. We think we have an enshrined right to free speech[2], a legal separation of church and state[3] and the right for all persons to equal under the law[4], but this is not so. As was profoundly stated by Macklemore and Ryan Lewis in their song about gay marriage, there is “no freedom til we’re equal”. And while we all can agree that each person is entitled to their own views, they are their views not to impact on the fundamental right to equality of others. So do whatever floats your boat, as long as it doesn’t sink mine. We must realise if we become too idle at calling the government and others out on injustice and inequality our freedoms will start slowly sinking from us.
[1] The overall number of Australians that support marriage equality has almost doubled since 2004 polls showed figures, 38% of Australians supported the reform.
[2] Through the decisions of Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth (ACTV) 177 CLR 1; Theophanous v Herald & Weekly Times (1994) 182 CLR 104 ; and Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 there is an implied right to freedom of political communication.
[3] Section 116 of The Constitution states “the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance…” In 1981, the High Court Justices, relying reading of the words "for" and "any", concluded that Australia's constitution through section 116 does not guarantee the separation of church and state.
[4] Under the Sex Discrimination Act 1984, section 5A outlines discrimination on the ground of sexual orientation and in Division 2 which outlines where discrimination on those grounds is prohibited, section 26 states the area of Administration of Commonwealth laws and programs. However, there is an exemption in section 40 regarding section 5A, which affects anything done by a person in direct compliance with the Marriage Act 1961.