Wedding cake

LGBTI human rights and marriage equality

Culture & Politics by Stephen Sander

Last updated: 6 July 2015

Foreword

In this very (very) long read I will offer up another very personal, unfiltered piece, discussing LGBTI* human rights and same-sex marriage in a cultural, legal, political, religious and social context.

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You may wonder: ‘Why this particular topic?’

First, LGBTI human rights and same-sex marriage are significant ongoing law reform issues in Australia, mired in a cultural, religious and political minefield.

Second, the subject is very personal to me and to borrow an apt expression from the 60s and 70s feminist movement: ‘The personal is political’.

I note that some may find the themes discussed in this piece confronting, thus reader discretion is advised. The issues involved are also numerous and complex, consequently this article is substantial in length, detail and referencing. Given the significant amount of referencing, it is possible that you may come across broken links. If so, I would be grateful if you could bring them to my attention, so I can fix, replace or remove them, as appropriate.

* There are a number of terms used by the members of the LGBTI community to describe themselves and their sexual orientation: gay, lesbian, queer, fag, faggot, poof, poofter, bisexual, transgender, intersex, etc. Usage by the general public of some of these terms of self-identification, particularly ‘queer’, ‘fag’, ‘faggot’, ‘poof’ and ‘poofter’, are highly likely to be considered inappropriate or derogatory. If you are intending to use these terms you should educate yourself on the appropriateness of their usage. In this blog entry I will tend to use ‘LGBTI’ as a general descriptor for the community: L(esbian)G(ay)B(isexual)T(ransgeder)I(intersex)

Table of contents

Introduction
Public acceptance and support in Australia
Marriage – what is it?
The evolution of marriage

Same-sex marriage and children
> The lies
> Real scientific research

Religion and same-sex marriage
> The Australian Christian Lobby
> Fred Nile and his Christian Democratic Party
> The others
> Religion, human rights and the secular liberal democracy
> The Vatican
> Religions unite against same-sex marriage
> Fundamentalists railroading democracy
> ‘Goodness’ and religion

Homophobia and its costs
> The persecution claims
> Are homophobes suppressed homosexuals?
> The Nazi and communist comparisons
> Homosexuality, nature and science
> Gay aversion/conversion/reparative therapy
> THAT really old pedophilia chestnut
> The infamous ‘slippery slope’
> Jim Wallace on gays and smoking
> Health issues in the LGBTI community
> Hate and homophobia’s deadly consequences
> LGBTI, the economy and happiness

The international experience
> The French experience
> The United Kingdom experience
> The Irish experience
> The New Zealand experience
> The US experience
>> Introduction
>> The Supreme Court of the United States of America
>> US anti-LGBTI hate groups
>> US evangelicals in Africa
>> Duck Dynasty and the ‘free speech’ fury

The Australian experience
> The NSW experience
> The ACT experience
> The Tasmanian experience
> The Queensland experience
> The referendum suggestions

Civil unions – decaf anyone?
Relationship registers … or the truth about cats and dogs (and cars)
8

Introduction

I live with my same-sex partner of over 16 years. On 13 December 2014 we celebrated the 16th anniversary of our happy, monogamous, stable and fulfilling same-sex relationship.

I am a lawyer and knowledge professional. My partner is a former marketing professional who has worked for some of Australia’s largest corporations. He is currently pursuing his creative dreams by publishing his debut novel, writing the sequel and becoming a graphic designer.

We are godfathers to two wonderful boys, aged 15 and 10. We are sons, siblings, friends, homeowners and productive, tax paying members of Australian society. We are active, reliable, accepted and respected members of our local community.

Over six years ago, on our tenth anniversary, my partner and I decided to hold a commitment ceremony in beautiful Blackburn Gardens, followed by a dinner reception.

We, like everyone else, wanted to celebrate our love and enduring relationship with our families and friends present. I was amazed by our local council’s downright excitement when we booked the Gardens for the occasion and our choice of reception venue, Wildfire at Sydney’s Circular Quay, had put in an incredible effort to make the night memorable.

Throughout the entire planning process and the big day itself we received nothing but support from everyone who was involved and even the general public who witnessed the ceremony at the Gardens.

The entire day was a wonderful experience. A lovely marriage celebrant prepared an appropriate ceremony for us. Our families were in attendance, even my grandmother flew in from the US and my brother travelled from Hungary! Our friends and colleagues came with their children and our neighbours of almost ten years were also there wishing us well. The incredible memories of that day will last a life time.

However, despite that wonderful private ceremony, I still hope that one day my partner and I can get married officially, right here at home in Australia, and that our relationship will be sanctioned and accepted as legitimate by the State.

Why? Because even though I cannot fault the day, compared to the state-sanctioned marriage ceremonies of our heterosexual friends, our ceremony felt second-class by virtue of it being legally unrecognised and completely unofficial. In some sense what we were doing almost felt illegal, even though we were perfectly within our right to hold such a private commitment ceremony and celebration. This feeling wasn’t helped by the fact that I still distinctly recall our wonderful celebrant being worried after the ceremony, because she accidentally mentioned the word ‘marriage’ (force of habit no doubt) and noted that she could get into serious trouble for that … We laughed this off at the time but it remains an enduring memory from the day, even though, deep in our hearts, we consider ourselves married.

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Public acceptance and support of same-sex marriage in Australia

In light of the above, it will come as no surprise to anyone that I support same-sex marriage.

It seems that the Australian public has firmly arrived at the same position as poll after poll shows that an ever growing majority of Australians support same-sex marriage, and support comes even from the seemingly most unexpected quarters … rugby.

Australia’s corporate giants have also announced unequivocal support for same-sex marriage by signing up to an open letter, stating:

We, business and industry leaders from across Australia, write to express our support for marriage equality.

We support diversity in the workforce, and recognise the rights of our lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) employees to live and work free of prejudice and discrimination, with all the essential freedoms enjoyed by other members of our organisations and the broader community.

We believe that individual rights and liberties are sacrosanct. They are essential in the creation of a healthy, harmonious and open society. An equitable society, free of discrimination, also allows all employees to function at their best. Australia is already a robust democracy, but we support seeing it treat all its citizens equally.
…
Not only is marriage equality the only truly fair option, but it’s also a sound economic option given that a happy workforce is a productive one. To remain competitive, and to attract top talent from around the world, organisations – and nations – must create a fair and respectful environment for all.

Equality in the workplace works; Discrimination does not.

We support the right for all our employees to have equal opportunities in life. We therefore support marriage equality.
…

Although despite all the support, sadly, Australia does suffer from a slight case of homophobia and, in particular, many of our politicians sadly lag behind public opinion weighed down by the shrill hysteria of a bigoted, homophobic minority.

I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.
Thomas Jefferson, letter to Samuel Kercheval, 12 July 1816

For those who labour under the mistaken presumption that the occurrence of, and demand for, same-sex marriage is a ‘modern day phenomenon’ and a ‘consequence of our decaying society’ (you know who you are) I suggest a study into indigenous cultures (pre-colonisation) around the world and ancient human history. You will find that homosexuality and same-sex marriage have gone hand-in-hand with humanity from times immemorial. Amusingly, a newspaper article dating back to 1932 suggests that gay men were holding ‘marriage’ ceremonies in Australia at least as far back as the 1930s, causing indignation, outrage and call for police action of course … In the United States there is also at least one very public example of a gay couple attempting to obtain a marriage license as far back as 1970.

The recognition of same-sex relationships is slowly spreading across Australia, however, the progress is slow, hard-fought and often ends in undesirable outcomes such as civil unions legislation and various relationship registers. Such inequitable outcomes merely continue to enforce discrimination, inequality and social injustice by legally and socially further entrenching discrimination, and endorsing the view held by some on the inferiority of gay relationships vis-a-vis heterosexual marriage, while trying to masquerade as a common sense, reasonable compromise for the benefit of all.

The survey conducted by the Commonwealth House Standing Committee on Social Policy and Legal Affairs in the course of their Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012, indicated a clear majority support for marriage equality (64 and 60.5% respectively for each of the proposed marriage equality legislation), despite the high-profile inquiry attracting a well organised campaign by the usual suspects opposing equality for the LGBTI community.

Arguably, it is largely irrelevant what the public thinks on this issue because equality before the law, especially in a secular, liberal democracy, is a discrimination, human rights, moral (but not in a religious sense) and social justice issue and such matters should never be the subject of the vagaries of public opinion, but rather of informed, impartial and thoughtful public policy unaffected by intolerance and uninformed human fears. It’s worth remembering that a liberal democracy is ‘liberal’ because it does not subject the protection of basic human rights to a collective deliberation process; rather such rights are recognised constant, inherent, universal and unalienable and are not up for debate or a popularity contest. Add secularity to the mix, and the religious position becomes flagrantly untenable, wrong and downright contrary, in fact hostile to, and utterly incompatible with, the underlying fundamental principles of a secular, liberal democracy.

Am I angry about the current speed of progress (or rather non-progress) on same-sex marriage in Australia? You bet I am! But beyond that personal anger at discrimination, hate and homophobia, there is a significant social and economic cost to denying marriage equality to LGBTI Australians … but more on that below.

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Marriage – what is it?

Marriage is an ancient institution, which predates Christianity and other currently prevalent religions, and over the centuries of human history it has been subject to different cultural contexts and many transformations around the world.

Marriage has served many social and political purposes in its long and troubled history, some positive, many negative, including to produce a (male) heir, to protect inheritance, to consolidate wealth and power, for economic safety or to subjugate women (even a female child in some cultures!) to men, but even those purposes have evolved (and arguably improved) over time as many these days get married simply for … love. Perhaps the purest reason of all to decide to get married, even if Bill Donohue, the President of the American Catholic League insists that marriage has nothing to do with love.

Many indigenous cultures valued gays and lesbians for their invaluable and unique contribution to their society and even considered a homosexual child a ‘gift’. It was even common practice in some cultures for gays and lesbians to be paired up with a partner of the same-sex (for example, the two-spirit people of the Native Americans). At least until their culture was contaminated and compromised by the value systems of invading missionaries and colonisers.

The institution itself is capable of interpretation, depending on cultural context, and change. It is an institution that evolved with humanity and it is capable of accommodating more change, including same-sex relationships. It is the people who are opposing such changes who are simply a temporary cog in this further evolution.

In more recent human history marriage was co-adopted by religion and early social engineers and filled with restrictions, including on the basis of class and race, primarily as a mechanism of social, political and economic control. This in itself highlights the hypocrisy of those crying out liberal social engineering when the notion of same-sex marriage is mentioned. One of the staunchest detractors of same-sex marriage, the Anglican Church, may not even be around today if Henry VIII didn’t vehemently disagree with the Catholic Church’s definition of marriage …

There is even arguable evidence for the proposition that there was a time when same-sex marriage was a Christian rite. John Boswell’s 1994 book, ‘Same-Sex Unions in Premodern Europe’, offers the best currently available support for this controversial suggestion. Of course such propositions, like all propositions made on the basis of centuries old religious texts, rely on the interpretation of language and cultural norms in a historical context. In this context the various examples of what is considered ‘marriage’ in the Bible also warrant a mention. Even respected religious scholars remind that, despite popular belief, the Bible does not simply define marriage as between one man and one woman.

There was also a time in the not too distant history when black and white people couldn’t marry and those who opposed this restriction were met with ridicule, scorn, legal prosecution and even deadly violence. This restriction was generally excused by the words of the … Bible. There is a shocking sentence (by today’s standards) in a 1959 US judgment (that’s right, only 55 years ago!) sentencing an interracial couple to one year in prison, with the sentence suspended for 25 years on the condition that the couple leave the state of Virginia, in Loving v. Virginia, 388 U.S. 1 (1967). Nevertheless, the past is worth remembering so that perhaps we can learn from our own human history of discrimination, hate and intolerance:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Incredibly, as recently as in 2011 a small Kentucky church passed a resolution in their Baptist congregation banning mixed-race couples, which was then declared null and void after it was determined that the new bylaw could breach local, State and national law! You think?!

Interestingly, concerned academics from various fields of study highlighted disturbing parallels between the arguments made against interracial marriages over 50 years ago and the arguments now being made against same-sex marriages, including:

In many cultures marriage between classes was (and in some places still is) culturally (and even legally) prohibited and those breaching the ‘rule’ were and still are the subject of sanctions and, often, violence.

Catholic doctrine today still denies marriage to people who are divorced and many religions refuse to perform a religious marriage ceremony between people of different religions, unless one party ‘converts’ first.

Due to the range of archaic restrictions the institution evolved and civil marriage was born, sanctioned by the State, which thankfully removed the monopoly of the churches.

Over the decades civil ceremonies have overtaken religious wedding ceremonies as the preferred choice by about two-thirds of those who get hitched in Australia.

There is simply no reasonable explanation as to why the institution of State sanctioned civil marriage could not accommodate same-sex relationships in a secular, liberal democracy.

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The evolution of marriage

Marriage, and relationships generally, have undergone significant changes over the last few decades, mirroring the evolution of our modern society. These days many heterosexual couples make the conscious decision not to have children, but we would never deny them the right to marry on the basis that it’s an institution designed for procreation and the upbringing of children.

Others find that they are unable to conceive for biological reasons, but no one would ever argue that this devalues their love or marriage in any way. Society would be highly unlikely to have a discussion about preventing infertile or elderly people from marrying because their marriage will not be procreative.

There are also many happy couples who live their lives together contentedly, raising healthy and successful children, but shun the idea of marriage due to their own personal convictions and of course there are countless single parents doing an amazing job raising their children.

On the other hand, an increasing number of gay couples raise children; some choose to do so, while others become parents through the vicissitudes of life affecting family members or close friends.

Consequently, if marriage is really such an indispensable institution for the healthy and successful upbringing of those children (which is a questionable proposition to begin with), why then would anyone wish to deny those children their same-sex parents being able to enter into a State (not Church) sanctioned marriage in order to provide that supposedly stable and nurturing environment?

Finally, just as not all heterosexual couples decide to have children, not all same-sex couples will decide to raise children either. For example, my partner and I have no desire to have children, but just as heterosexual couples who marry, despite having no intention to have children, I do have a strong desire to marry my loving partner of many years.

Allowing same-sex marriages will not bring on the ‘apocalypse’ and the world will continue, as it always has, for at least the foreseeable future baring the possible effects of climate change and the fact that one day, billions of years from now, our sun will cease to support life on our little blue planet …

There are numerous progressive liberal democracies around the world where same-sex marriages are legal, including Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Sweden, South Africa and even staunchly Catholic Portugal and Spain, an ever growing number of States in the US and most recently Uruguay, New Zealand, France and the UK. The legality of same-sex marriages in those countries that allow it had none of the negative social effects raised by contrarians, even in The Netherlands where the law has been in place for well over a decade now.

Frankly, the hysteria surrounding same-sex marriage would almost be amusing if it wasn’t so ill-informed and well, I will call it what it really is … bigoted and lacking any intellectual basis.

The most likely contribution same-sex marriages will make to society in the long-run will be the reinforcement of the concept of a monogamous and life-long commitment of two people who love each other and wish to travel through life together. And as for the effects on the LGBTI community, there is research emerging now that indicates that same-sex marriages have a beneficial health effect, which can only benefit society as a whole.

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Same-sex marriage and children

While we are on the subject of children raised by same-sex parents, let me be absolutely clear: there is no credible empirical evidence whatsoever that those children are disadvantaged in any way by virtue of being raised by same-sex parents. The ‘research studies’ opponents refer to on this issue have been conclusively discredited.

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The lies

The most recent example of such ‘studies’ is the ‘New Family Structures Study’, (NFSS) by sociologist Mark Regnerus, which has been used by certain groups in a number of court submissions in the US, opposing equality for the LGBTI community. Since the NFSS was published in the sociology journal Social Science Research, hosted at the University of Central Florida in Orlando, a widespread scientific consensus emerged that the ‘study’ is methodologically flawed. It was further revealed that the ‘study’ was backed and financed by the Witherspoon Institute, a certified American hate group, allegedly with the very purpose in mind to use the findings of the ‘study’ to fight against LGBTI equality, by ‘proving’ that children raised by same-sex parents were seriously disadvantaged.

The Social Science Research journal was even subject to a lawsuit to ascertain the circumstances in which the publication of the ‘study’ was allegedly fast-tracked, given a mere six weeks lapsed between the submission of the ‘study’ and its publication, while some of the articles published in the same issue took around a year between submission and acceptance. Darren Sherkat, professor of sociology at Southern Illinois University and a member of the editorial board of Social Science Research, gave an interview to the Southern Poverty Law Centre, in which he explained the outcome of his internal investigations into the publication of the ‘study’ by the journal.

It is also noteworthy that Mark Regnerus’ views in this regard have been expressly disowned by his own university and the Chair of the Department of Sociology at the College of Liberal Arts of the University of Texas stated:

… Dr. Regnerus’ opinions are his own. They do not reflect the views of the Sociology Department of The University of Texas at Austin. Nor do they reflect the views of the American Sociological Association, which takes the position that the conclusions he draws from his study of gay parenting are fundamentally flawed on conceptual and methodological grounds and that findings from Dr. Regnerus’ work have been cited inappropriately in efforts to diminish the civil rights and legitimacy of LBGTQ partners and their families.
…

Further, in March 2014 Dr. Regnerus presented himself as an expert witness during a court challenge to Michigan’s ban on same-sex marriage. This is what Judge Bernard A. Friedman thought of his testimony:

The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration. The evidence adduced at trial demonstrated that his 2012 “study” was hastily concocted at the behest of a third-party funder, which found it “essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society” and which “was confident that the traditional understanding of marriage will be vindicated by this study.”
…
While Regnerus maintained that the funding source did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged. Additionally, the NFSS is flawed on its face …

Whatever Regnerus may have found in this “study,” he certainly cannot purport to have undertaken a scholarly research effort to compare the outcomes of children raised by same-sex couples with those of children raised by heterosexual couples. It is no wonder that the NFSS has been widely and severely criticized by other scholars, and that Regnerus’s own sociology department at the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus’s views in general and reaffirmed the aforementioned APA position statement.

In light of the above, the only reasonable conclusion to be drawn is that the NFSS is just another example of the baseless, ignorant and shrill scaremongering we have come to expect from zealots as they desperately continue to reflect their medieval prejudices onto the LGBTI community and the underhanded, downright immoral, methods they are willing to employ to achieve their aim.

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Real scientific research

In addition to the position of the American Sociological Association noted above, the American Academy of Pediatrics (AAP) also issued a policy statement that supports both same-sex marriage and adoption rights by same-sex couples. The AAP Policy Statement, citing research over the last 30 years in its Technical Report, states that: ‘[s]cientific evidence affirms that children have similar developmental and emotional needs and receive similar parenting whether they are raised by parents of the same or different genders’.

Further, the initial finding from the world’s largest study on the children of same-sex parents, under way at Melbourne University, indicates that children of same-sex parents are doing as well or better than the rest of the population on a number of key health indicators. The interim report found no statistical difference between children of same-sex couples and the rest of the population on indicators including self-esteem, emotional behaviour, and the amount of time spent with parents. However, children of same-sex couples scored higher than the national average for overall health and family cohesion, measuring how well the family get along.

A report issued by the Australian Institute of Family Studies, titled ‘Same-sex parented families in Australia‘, also stated that ‘[o]verall, research to date considerably challenges the point of view that same-sex parented families are harmful to children. Children in such families do as well emotionally, socially and educationally as their peers from heterosexual couple families.’ Ironically, The Australian reported on the study with the headline: ‘Same-sex parents ‘more caring’, research shows‘.

If you want to see a real-world example of the type of child same-sex parents are capable of raising, I give you Zach Wahls:

… and again at the 2012 Democratic National Convention. I would dare to say that Zach has made his two mums very proud:

Admittedly, children of same-sex parents may in fact experience some disadvantages and discomfort, but this would be a result of a homophobic society and individuals, including laws that continue to discriminate against their loving families, bullying at school and hateful public messages from a range of sources to the effect that their families are inferior.

But this type of disadvantage is just another example of the damage hate and homophobia is causing to society and is not a reflection on the parenting capabilities and skills of same-sex couples.

In conclusion, the growing empirical evidence shows that same-sex parenting does not have the negative outcomes alleged by opponents:

Unfortunately, there will always be examples of children being raised in a manner that’s less than ideal, or suffering horrific abuses, but this will happen regardless of their parents’ gender, marital status, race, religious beliefs or sexuality. Such individual experiences should never be allowed to taint an entire group of people as ‘bad’ or ‘unsuitable’ parents, however tempting that may be to further your ideological, political or religious agenda, unless supported by proper scientific studies:

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Religion and same-sex marriage

So why is same-sex marriage such a political hot potato? I think we can all agree that the reason can be summed up in a single word: religion. No matter how much one may try, it is in fact impossible to separate religious opposition to same-sex marriage from their general archaic disapproval of homosexuality and the resulting uphill battle for the equality of the LGBTI community.

There were some blatantly obvious expressions of this disapproval, in the form of open hatred and homophobia, in the many ignorant submissions made by various bodies and individuals to both Parliamentary inquiries into proposed Australian marriage equality laws.

A glaring example of this hateful, ignorant and deceitful approach was the likening of gay marriage to incest (yes, incest!) by opponents before the Inquiry into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill 2012 conducted by the House Standing Committee on Social Policy and Legal Affairs.

The submissions made by various bodies and individuals to the parallel Inquiry into the Marriage Equality Amendment Bill 2010 conducted by the Senate Legal and Constitutional Affairs Legislation Committee also make for a disturbing read and further highlight the hatred and blind ignorance directed at the LGBTI community by certain sections of society.

Thankfully there is growing international acknowledgement of the fact that ‘gay rights’ are nothing less than unalienable universal human rights. On 8 December 2011, the UN Secretary-General Ban Ki-moon called homophobic bullying a ‘grave violation of human rights‘.

He stated that ‘[t]ackling this problem is a shared challenge’ and noted that parents, family members, teachers, neighbours, community leaders, journalists, religious figures and public officials all had a role to play in combating violence and discrimination on the grounds of sexual orientation and gender identity.

Many in the community continue to spread skewed, biased surveys to make a point. Take for example the opinion piece by Chris Meney, director of the Life, Marriage and Family Centre in the Catholic Archdiocese of Sydney published by the Sydney Morning Herald. Curiously, the conclusions of the ‘survey’ for the Ambrose Centre for Religious Liberty are contrary to all other surveys taken by various reputable research companies over the past few years. The article appears to be nothing more than a medley of the usual old hogwash being pushed as an argument against same-sex marriage, but it is worth a read, even if it is just to give you an insight into a shockingly medieval mindset.

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The Australian Christian Lobby

And of course there is the Australian Christian Lobby (ACL), which has been practically in a frenzy against same-sex marriage and came out with a priceless reaction to the Australian Labor Party’s adoption of support for same-sex marriage as a policy platform. The ACL’s response to ex-Prime Minister Kevin Rudd’s personal support for same-sex marriage by comparing it to the stolen generations was another low point.

The ACL maintains its campaign in an attempt to intimidate our politicians on the issue. Jacob Holman, a producer, presenter and newsreader for Melbourne’s JOY 94.9, reviewed the ACL’s press releases and self-reported media mentions from January to June 2012 and created a very interesting graph illustrating the ACL’s bizarre obsession with the LGBTI community:

ACL

The Twitter feed of the ACL is also a unique ‘treat’ and perfect for those who need to be reminded from time-to-time of the very real threat fundamentalists of all creed represent to the basic principles and values of our secular, liberal democracy. Here is another example of the work of the ACL:

The ACL is also behind the so-called ‘Australian Marriage Forum‘.

In their blind hatred and myopic vacuum, zealots often overshoot the mark as illustrated by the performance of Jim Wallace, the ex-head of the ACL, who caused public outrage by suggesting that being gay may be as bad (or worse) for your health as smoking. In fact things have gotten so bad for the ACL that many everyday average Australian Christians are literally lining up to distance themselves from it. Bravo Mr Wallace! We could not have done a better job highlighting the bigotry and hatred of the ACL ourselves! But more on Mr Wallace’s comments below …

They [preachers] dread the advance of science as witches do the approach of daylight and scowl on the fatal harbinger announcing the subversions of the duperies on which they live.
Thomas Jefferson, letter to J C da Serra, 11 April 1820

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Fred Nile and his Christian Democratic Party

An honourable mention must also go out to Fred Nile in NSW and The Christian Democratic Party (The Fred Nile Group), a party which received a mere 3.01% of the vote at the 2011 election. In April 2013, Fred Nile went as far as formally withdrawing his support from the NSW Liberal Government, after its then leader, Premier Barry O’Farrell, announced his personal support for same-sex marriage, the availability of a conscience vote on the issue for members of the NSW Liberal Party and urged his Federal counterpart, Tony Abbott, to allow a conscience vote on the issue for Liberal members of Federal Parliament.

Unfortunately, when it came to the crunch, perhaps not entirely unpredictably, Barry O’Farrell folded on the issue and announced that he would not vote for a marriage equality bill introduced into the NSW Parliament.

Further, on 7 December 2013 Fred Nile started a petition on Change.org calling for a referendum on same-sex marriage. Thankfully, the last time I checked the petition only had a few hundred signatures and you can read more on my views regarding a referendum on same-sex marriage below.

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The others

Fred Nile is not the only ‘pride’ of The Christian Democratic Party. There is also Pastor Andrew Green, a candidate in the 2013 Federal election, who thought it appropriate to link marriage equality to the legalisation of pedophilia (an offensive old chestnut) and also asserted that gay couples have on average ‘four additional partners a year’, although what he based that assertion on is a mystery.

We also have the evangelical Rise Up Australia Party (the political arm of Danny Nalliah‘s Catch The Fire Ministries) and the right-wing Australian Protectionist Party. The Australian Protectionist Party also chimed in on the issue of same-sex marriage on its now defunct @Protectionists Twitter feed on the morning of 4 December 2011. Unfortunately, later they deleted all their illuminating comments, so I will leave it up to your imagination as to what position they may have taken.

In the Federal Parliament we also have Senator John Madigan of the Democratic Labor Party, who received a mere 2.3%(!) of the primary vote at the 2010 Federal election. When he is not trying to mess with abortion rights, he is working on ensuring that same-sex marriage is declared unconstitutional. In fact, in December 2013 he sprung a surprise anti-same-sex marriage referendum motion on the Senate, but the motion was thankfully defeated.

The Australian Christians also ran and incredibly hateful and homophobic campaign during the 2013 Federal election filled with lies and half-truths, purely designed to fan disgust and fear towards the LGBTI community.

There are also a number of hateful and misguided anti-LGBTI fronts spreading their lies and misinformation on Twitter, including:

The so-called Australian Marriage Forum has also made a big public splash to coincide with the 2015 Sydney Gay & Lesbian Mardi Gras.

They produced a surprisingly slick but, as one would expect, utterly uninformed ad, filled with bigotry and prejudice, purporting to express a concern about ‘children’s rights’ in their argument against marriage equality:

And they followed up with this ‘gem’:

The ‘Think of the child’ tag line of the Australian Marriage Forum has long been the emotionally laden, false catch-cry of some anti-LGBTI groups, so much so that it has literally become a joke in popular culture.

A domain registration search reveals that the Australian Marriage Forum’s website was registered by the Australian Christian Lobby.

AMF

While morally deplorable, such hateful and intolerant people and extremist groups serve an important role in reminding us that the price of freedom is eternal vigilance.

Some responds to these groups, their activities and comments, by arguing that they are just ‘extremists’ who hold ‘fringe views’ which are out of line with modern Australian society at large. If so, why are their views on homosexuality still inform and direct Australia’s public policy on LGBTI human rights, including same-sex marriage?!

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Religion, human rights and the secular liberal democracy

Do I accept religious views as a sufficient reason for denying same-sex marriage? No, I do not!

Religions do not have the right to interfere with the fundamental civil rights of citizens of secular, liberal democratic states and the religious do not have the right to enforce their personal religious beliefs on others. Given the histories of the various religions, they also lack any moral authority to enforce their prejudices on the larger community.

Further, the LGBTI community and same-sex marriage has as much to do with ‘freedom of religion’ as freedom of speech has to do with hate speech. There isn’t and there can never be unfettered freedom of religion, especially in circumstances where that concept is insidiously being used to trample on unalienable universal human rights, including the right to be afforded equal rights and protections under the law regardless of one’s biological sexuality. The European Court on Human Rights has already made it clear that the higher principles of equality trump religious freedom. ‘Freedom of religion’ ends where human dignity begins.

In my view, one of the main reason why religions are struggling in the 21st century, and the tension is increasing between mainstream society and the religious, is that while society has been subject to natural human social evolution, religions, to a large extent, have anchored and committed themselves to ancient texts they claim to reflect god’s will and provide answers for humanity’s questions, but in reality contain too many unsuitable propositions for 21st century living and an increasingly educated and knowledgeable population. No wonder so called ‘bible-based’ arguments against same-sex marriage from the average punter are so forced, hollow and nonsensical.

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The Vatican

Despite some miscellaneous comments made by the current Pope on homosexuality, and commentators consequently celebrating ‘progress’ in the Vatican, Pope Francis’ 224-page official policy statement issued in November 2013 made his position on same-sex marriage entirely unambiguous by his comments on marriage, including his referencing of the French bishops’ position, especially given the role those bishops played in the French same-sex marriage debate:

…
New patterns of behaviour are emerging as a result of over-exposure to the mass media… As a result, the negative aspects of the media and entertainment industries are threatening traditional values, and in particular the sacredness of marriage and the stability of the family’.
…
The family is experiencing a profound cultural crisis, as are all communities and social bonds. In the case of the family, the weakening of these bonds is particularly serious because the family is the fundamental cell of society, where we learn to live with others despite our differences and to belong to one another; it is also the place where parents pass on the faith to their children. Marriage now tends to be viewed as a form of mere emotional satisfaction that can be constructed in any way or modified at will. But the indispensible contribution of marriage to society transcends the feelings and momentary needs of the couple. As the French bishops have taught, it is not born, of loving sentiment, ephemeral by definition, but from the depth of the obligation assumed by the spouses who accept to enter a total communion of life’.
…

It’s also worth noting that he personally urged a delegation of French lawmakers to avoid following only ‘fashions and ideas of the moment’ in a reference to France’s legalisation of same-sex marriage.

A phrase later used in the same context by Australia’s own staunchly Catholic Prime Minister, Tony Abbott, who earlier promised that, if elected, he would govern for all Australians and would not allow his own religious views to affect government policy.

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Religions unite against same-sex marriage

Unfortunately, Western religions are not alone in their disapproval, hate and even persecution of homosexuality. This was highlighted by the unprecedented intervention against same-sex marriage by a large group of imams, on behalf of the Muslim community, in the liberal, secular democracy of the UK.

I note that the treatment of the LGBTI community in the Muslim nations of the Middle East speaks for itself. We are all witnesses to the horrific results of religion-based autocratic States, and the effect such religion based political systems have, on people’s human rights and civil liberties where separation of church and State has not yet developed. We simply cannot allow such influences to envelope our secular, liberal democracies.

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Fundamentalists railroading democracy

By their conduct, religions have effectively declared open hostilities not just against the LGBTI community, but also the bedrock principles of secular, liberal democracy. Consequently, it is time for a more focused and candid response to such influences, especially when it comes to same-sex marriage and the attempts to deny equal marriage rights on the basis of religious pseudo-moralism.

Nothing represents a bigger threat to our secular, liberal democracies and the liberties we have taken for granted for so long than religious fundamentalists and extremists, no matter what religion or belief. For better or worse, same-sex marriage has become a major battleground in a war that currently rages between our secular, liberal democracy and its religious factions.

In Australia, The Christian Democratic Party (The Fred Nile Group), Family First and Rise Up Australia are just a few examples of evangelical Christians attempting to co-opt our secular, liberal democratic political system to further their vision of a Christian Australia under biblical rules.

In the Western context, especially in the United States, there are some questionable self-appointed community leaders and organisations, particularly in the evangelical community, who express views from time-to-time that range from the abhorrent to the ridiculous:

The above is just a very small sample of the bigoted, hateful rhetoric aimed at the LGBTI community. It would be easy to dismiss these people as ill-informed crackpots, but the reality is that these people are very dangerous because they are in significant leadership positions and have the ability to influence millions.

Leading up to Christmas in 2014, Newsweek published an illuminating article titled ‘The Bible: So misunderstood it’s a sin‘, in which the writer had systematically highlighted and destroyed the ill-informed and often malicious misinterpretation of Bible verses by evangelicals, noting that:

They are God’s frauds, cafeteria Christians who pick and choose which Bible verses they heed with less care than they exercise in selecting side orders for lunch. They are joined by religious rationalizers—fundamentalists who, unable to find Scripture supporting their biases and beliefs, twist phrases and modify translations to prove they are honoring the Bible’s words.
…
The Bible is not the book many American fundamentalists and political opportunists think it is, or more precisely, what they want it to be. Their lack of knowledge about the Bible is well established.

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‘Goodness’ and religion

There are many incredibly good and decent religious people out there. Some have even spoke out against homophobia and/or in favour of same-sex marriage both in Australia and elsewhere, including:

Religions, including Christianity, have no exclusivity on human ‘goodness’ or ‘morality’. Believing in a ‘god’ never has been and never will be a prerequisite for morality, or the only source of human goodness. Goodness and morality are arguably inherent biological and social traits and are nothing more than genetic coding enforced by societal living, that relies on codes of conduct to survive and thrive. It doesn’t take much brilliance to establish that when living in a society, how we treat people will directly affect how people treat us in return and by being good to others and collaborating with them, generally we hope to elicit the same response.

There is even emerging scientific evidence of ‘moral’ behaviour in animals. If even apes can tell wrong from right, show empathy and demonstrate the basic components of what we commonly refer to as ‘morality’, perhaps humans can manage the same naturally, without ‘divine intervention’? In fact, I question the true value and real nature of human ‘goodness’ and ‘morality’ that is merely the result of fear of judgment and eternal punishment by a supposed deity.

If people are good only because they fear punishment, and hope for reward, then we are a sorry lot indeed.
Albert Einstein (1879-1955)

In this context it does worth noting that the 10 ‘happiest’ countries in the world, as identified in a study conducted by the Organization for Economic Cooperation and Development, have an interesting thing in common: they are all leading liberal democracies and most are highly advanced in the areas of social justice and equality, including LGBTI rights. For example, Canada, Norway, Sweden, Denmark, Iceland and The Netherlands, all countries that already allowed same-sex marriage at the time, ranked in the top 10.

The other four countries in the top 10, Australia, the United States, Switzerland and the UK, are also strong leaders in equality and anti-discrimination, and are each dealing with a strong community push towards marriage equality.

The UK had since joined the list of countries which legislated marriage equality and same-sex marriage is also steadily spreading across the United States. So, you could say that a country that supports equality and social justice, is a happier country …

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Homophobia and its costs

The persecution claims

Some complain that they are unfairly labelled ‘homophobic’ as soon as they challenge the quest for LGBTI equality, including marriage equality. Let me quote Dr Max Pemberton on the issue, who notably stated that ‘homosexuality is not a pathology, but homophobia, given that it’s a phobic condition, is’.

As for American Christians complaining about being ‘persecuted’ because of their religious beliefs, when you can be fired from your job in 29 US States for just being a Christian, I may stop and consider their assertions of ‘persecution’. You are not being oppressed by virtue of others achieving the same freedoms, protections and rights under the law which you have always enjoyed – that’s called progress, social justice and an end to discrimination.

Ironically, even the former Archbishop of Canterbury, Rowan Williams, advised ‘persecuted’ western Christians in the US and the UK to grow up and get over themselves and the current Archbishop, Justin Welby, thought that Christians should ‘repent’ over their treatment of gays.

It’s also worth noting that an ‘opinion’ in the absence of evidence and facts to support it is usually old-fashioned bigotry, hatred and prejudice and consequently it is arguable that no one is entitled to an opinion, especially when the opinion in question has no foundation in facts or has been conclusively and inarguably debunked.

To me, the definition of homophobia also raises the serious question whether a person who is a homophobe fit for public or any other office where they have a role in the discourse on the direction society takes?! After all, homophobia is a ‘phobic’ condition, which is an anxiety disorder causing irrational, persistent fear … is that really the best qualification for public office?!

I also wonder how Christians would feel if suddenly they were being denied services solely because of their beliefs. Perhaps then they would know what real persecution feels and looks like:

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Are homophobes suppressed homosexuals?

Interestingly, there is now growing scientific evidence indicating that homophobes may in fact be fuelled in their hatred and violence against the LGBTI community by their own suppressed homosexual desires:

Sadly, truth, scientific research and facts never got in the way of some good old-fashioned, uninformed, amoral bigotry and hatred. After all, as the great George Bernard Shaw put it in his 1919 play, ‘Annajanska’:

All great truths begin as blasphemies.

Of course you may prefer to rely on the ground-breaking ‘scientific’ research of a Nigerian engineering graduate student into the subject, using … magnets. One can only hope that this gentleman is not representative of the standards of Nigeria’s institutions of higher learning.

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The Nazi and communist comparisons

Nazi Germany
Gay men round up in Nazi Germany

Some have also drawn offensive parallels between supporters of same-sex marriage, and human rights for the LGBTI community generally, and Nazi Germany and propaganda:

Pink triangle
A pink triangle with concentration camp ID number

The appalling Nazi slurs don’t advance the anti-LGBTI and anti-same-sex marriage agenda. Invoking accusations of Nazism against supporters of LGBTI human rights in opposition to same-sex marriage is an unspeakable disgrace to the memory of the LGBTI victims of persecution by a predominantly Catholic Nazi Germany. Gay men were arrested in their tens-of-thousands by the Nazis, many sent to concentration camps where they were forced to wear pink upside down triangle identification badges. Thousands of them had perished in appalling conditions, unacknowledged by history for decades.

Hate to be the bearer of confronting reality, but if you are a bigoted, hateful homophobe opposing full human rights for the LGBTI community, you have more in common with Nazi Germany and Nazi ideology on homosexuality than you might think.

I am aware of a ludicrous, yet in some specific circles very popular, conspiracy theory floating around about the Third Reich supposedly having been run by so-called ‘masculine homosexual men’ (please note this link will take you to an extremely hateful and objectionable site, filled with lies and morbid fantasies presented as historical facts), but this ‘theory’ simply does not have sufficient foundation in known historical facts, from an era well documented and analysed by respected academics, and appears to be just another hateful, vicious attempt to further besmirch gay men.

As for the ‘communist propaganda’ variation of the same slur, as a dissident and political refugee from communism and a former anti-communist activist from (then communist) Hungary, I can assure you from personal experience that it is the methods employed by certain anti-LGBTI groups that are skating on the edge of communist style propaganda in their fight against acceptance, humanity and equality.

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Homosexuality, nature and science

I would also like to address briefly the segment of the population that relies on howls of ‘it’s not natural’, each and every time homosexuality is raised, let alone same-sex marriage is mentioned. A lot of things are arguably not ‘natural’. Pacemakers, in vitro fertilisation, artificial hips … and most food products at your local supermarket, just to mention a few.

Nevertheless, homosexuality is perfectly natural! To date, homosexual behaviour has been documented in over 1,500 species! There is also growing scientific evidence to the effect that homosexuality is likely an epigenetic:

and/or a genetic predisposition:

The latest research on the subject indicates a strong genetic component (about 40%) with epigenetic and other factors also playing a role:

The science on this topic is still young but there will be the usual suspects who will never accept this position, regardless how much scientific evidence is produced that is contrary to their beliefs. Cognitive dissonance can be an insidious psychological human trait. Relevantly, research also reveals that people who can’t use facts to win an argument fall back on their untestable morals:

However, once the scientific foundations of homosexuality reach a point of ‘un-deniability’ and by any chance a genetic test is developed that can indicate the presence of the relevant genes in human embryos, the religious in particular, and humanity generally, will be faced with a curios ethical dilemma … especially the ‘right-to-life’ types who believe that life begins at conception. It remains to be seen what will triumph: their principles or their prejudices?!

On the other hand, only one animal (seemingly no matter how evolved) has been documented to display homophobic behaviour: humans. So which one is more ‘unnatural’?! And while on the topic of utterly ‘unnatural’ sexual practices, let’s not overlook the concept of celibacy … try to find that practice in nature!

Of course some will respond to this by saying that some species also eat their young and engage in intra-species devouring (cannibalism), so are those ‘natural’ too then? Well, they are ‘natural’. We humans had engaged in both of these behaviours in our distant history and there was a time when such behaviours were culturally and socially acceptable. As we evolved, we formed societies and developed cultural and social norms that affected (by enhancing or limiting) many aspects of our lives. However, these cultural and social norms are not frozen in time and they continue to evolve with humanity.

In the case of murdering our young, or fellow human beings generally, and cannibalism, given the consequences of such actions, there is a significant social benefit in making such actions socially unacceptable and a crime. Unfortunately to the naysayers, there is no comparable social utility in applying the same approach to sexual behaviour between consenting same-sex adults.

Another relatively recent and relevant example of this cultural and social evolution and the progress we are capable of as human beings unburdened by ignorance and hatred, is the fact that homosexuality itself is no longer illegal in the progressive secular, liberal democracies of the world, much to the disappointment, and often outright disdain, of those who retain archaic beliefs (for example, homosexuality only became legal in NSW in 1984).

Admittedly, having used the term ‘evolution’ in this context is misleading because this ‘inevitable’ cultural and social change was the hard-earned result of a long-term, often controversial campaign for equality, opposed until the bitter end by the very same groups that now oppose same-sex marriage.

It must also be acknowledged that there is millennias-old historical context to homosexuality. Homosexuality has been recorded throughout human history. It’s common historical knowledge that in ancient Greece and Sparta it was part of the social fabric. Even in Africa, currently one of the most homophobic continents of the world, there are extensive historical records of alternative sexuality in the pre-colonial era. In the ancient Middle-East, another current hotbed of homophobia, homosexuality was not prohibited, condemned, nor looked upon as immoral or disordered.

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Gay aversion/conversion/reparative therapy

From time-to-time some group will parade around a sad shell of a human being who supposedly had been ‘cured’ of his or her ‘gayness’ by so-called ‘gay conversion therapy‘, as ‘proof’ that homosexuality is a ‘correctable behaviour trait’, despite:

(Watch Dr. Robert L. Spitzer’s renunciation of his own study.)

‘Conversion therapy’ is hateful prejudice manifest and the practice is nothing less than the malicious persecution of the LGBTI community.

It’s notable that common sense and science is starting to win out over bigotry and there is a growing movement towards banning the practice, including in California and New Jersey, especially for teenagers, because its harmful mental health effects are now being recognised. Thankfully, the courts in California had sided with science and the legislature over the issue, rather than the sick homophobes pushing these therapies.

Even the British Association of Christian Counsellors has now banned the practice and the British Health Minister, Norman Lamb, stated that conversion therapy is abhorrent and has no place in a modern society, as he sought assurances from the National Health Service that GPs do not make any referrals for such treatment.

But as I pointed out above, truth, scientific research and facts rarely get in the way of good old-fashioned, uninformed, amoral bigotry, hatred and homophobia.

And as if things weren’t bad enough for the already utterly discredited ‘ex-gay’ movement, on 22 April 2013, the poster child for ‘gay conversion therapy’, John Paulk, the former chairman of Exodus International and co-author of ‘Love Won Out: How God’s Love Helped Two People Leave Homosexuality and Find Each Other‘, also renounced his controversial past beliefs and issued a public apology to the homosexual community:

For the better part of ten years, I was an advocate and spokesman for what’s known as the “ex-gay movement,” where we declared that sexual orientation could be changed through a close-knit relationship with God, intensive therapy and strong determination. At the time, I truly believed that it would happen. And while many things in my life did change as a Christian, my sexual orientation did not.
…
I know that countless people were harmed by things I said and did in the past.

Parents, families, and their loved ones were negatively impacted by the notion of reparative therapy and the message of change. I am truly, truly sorry for the pain I have caused.

From the bottom of my heart I wish I could take back my words and actions that caused anger, depression, guilt and hopelessness. In their place I want to extend love, hope, tenderness, joy and the truth that gay people are loved by God.
…

Alan Chambers, another Exodus International ‘ex-gay’ group leader, had also come out and apologised for his group’s practices.

A non-scientific survey, which is believed to have been the first and largest survey of its kind, published in 2013, that sought out people who have been subjected to such ‘therapies’ received responses from more than 400 people and indicated that no one who responded had changed their sexuality as a result. To the contrary, the various ‘therapies’ created great harm and great devastation in many lives, especially in the lives of those people who responded.

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THAT really old pedophilia chestnut

There is also an ironic, often downright criminal, hypocrisy in many oppressive cultures that openly deride homosexuality, where the very people who publicly oppose homosexuality are often found to secretly engage in homosexual acts or, even worse, in criminal pedophilia. An appalling example of the latter being the dancing boys of Afghanistan (yes, in culturally, religiously and socially conservative Afghanistan) and the Catholic Church cannot escape close scrutiny in this context either.

Thankfully most of the population, at least in the West, have now learned to differentiate pedophilia from homosexuality to the great derision of bigots and homophobes who still falsely and maliciously talk of these two interchangeably.

There is also a variation on this offensive theme, which suggests that same-sex marriage would somehow lead to legalised pedophilia!

I do wish that homophobes would get it through their thick, intolerant skulls that ‘homosexuality’ as the term applies in the marriage equality fight context is a naturally occurring sexual attraction between consenting adults of the same sex … the emphasis being on consenting adults!

Pedophilia may involve opposite-sex or same-sex perpetrators, but one of the parties is a child, an underage person, who is deemed by society (based on scientific markers of human development and maturity) not to have developed sufficient emotional and sexual maturity to be in a position to give consent to a sexual relationship with an adult, whether female or male.

Legalising the recognition of the relationship between two consenting adults of the same sex has no bearing whatsoever on the status of pedophilia, being an act of sexual violence, rape perpetrated on a child incapable of giving consent.

Consequently, this argument is beyond ridiculous because it effectively suggests that the legalisation of relationships between two consenting adults of the same sex will lead to the legalisation of rape! An imbecilic and preposterous proposition.

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The infamous ‘slippery slope’

There is also that other stock-standard ‘argument’ zealots pull out time and time again: the ‘slippery slope’ fallacy.

This ‘argument’ goes something like this: ‘today the gays, tomorrow brothers and sisters, fathers and daughters, men and animal, bigamy, polygamy, etc’. Who could forget that charming, infamous same-sex marriage will lead to bestiality argument from Liberal Party of Australia Senator Cory Bernardi.

It’s worth noting that Senator Bernardi is sticking with his comments and showing no signs of contrition.

These arguments are mere fallacies, utterly unsupported by facts and so patently ridiculous that they deserve no response. But if one were to respond, it must be highlighted at the outset that numerous liberal democracies in the world have allowed same-sex marriages for some time now and the practical experience in those nations is contrary to this old and ridiculous contention. It must also be noted that at the heart of same-sex marriage lies the same underlying principle of two consenting, unrelated adults committing to a monogamous, hopefully lifelong, relationship.

As for the harebrained suggestion by some that a father could marry his own son under a same-sex marriage law, they should perhaps look at existing marriage laws that expressly prohibit such marriages and there is no credible reason to suggest that same-sex marriages would be exempt from those existing restrictions relating to close family (see for example paragraphs 23(2) to (6) of the Marriage Act 1961 (Cth) or section 1 and the First Schedule of the Marriage Act 1949 UK). The same provisions are also very clear on prohibiting marriages between other close relatives.

If I were to nit-pick over this argument, I would suggest that the Bible is way ahead (or behind?) on these issues, as the biblical definitions of marriage (yes there are multiple options) do include polygamy. Even American biblical scholars have noted that despite popular belief, the bible simply does not define marriage as between one man and one woman. I think it’s also worth noting that questionable examples of what marriage is according to culture infused by religion, are not limited to the Christian faith.

On the other hand, I absolutely refuse to dignify the bestiality suggestions with a response, as people making such arguments are entering a mentally unstable territory, and that’s a place where rational arguments have no application.

Many have also expressed the concern that same-sex marriage would ‘destroy’ the institution of marriage. A painfully obvious the ‘sky is falling’ argument. However, those making this assertion haven’t been able to back up their comments with … anything. In fact, the latest research at Portland State University, which examined US states with marriage equality or strong civil unions, found no decline in marriage rates whatsoever. To the contrary, research indicates that US states which allow same-sex marriage have the lower divorce rates.

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Jim Wallace on gays and smoking

While I made my disdain for Jim Wallace and the ACL very clear above, he did once raise a point which I believe is worth addressing further. Jim Wallace is quoted to have said the following:

I think we’re going to owe smokers a big apology when the homosexual community’s own statistics for its health – which it presents when it wants more money for health – are that it has higher rates of drug-taking, of suicide, it has the life of a male reduced by up to 20 years …

To put this ‘argument’ into context, one must point out that this completely false proposition had been circulating around for over a decade. It is raised time-and-time again, and is merely a variation on the tired, old disingenuous approach of comparing homosexuality to various substance addictions, from alcoholism to drug addiction and the occasional release of some utterly unfounded ‘statistics’ on the health dangers of homosexuality.

The source of these ‘statistics’ are generally the same few disreputable anti-LGBTI individuals or organisations, that devote their lives to producing ‘evidence’ that homosexuality is an ‘unhealthy lifestyle’. These ‘statistics’ have been already shown to be completely incorrect, without any scientific foundation and even downright fraudulent in some cases, or shown to be based upon old studies completely taken out of context to arrive at contrived and false conclusions presented as facts.

The so-called ‘Gay Obituary Study’, on which I understand Jim Wallace has relied upon to make this particular assertion, conducted by Paul Cameron, the President of the Family Research Institute, has been thoroughly discredited and does not comply with any basic scientific standards. It is also of relevance that the Family Research Institute is designated a hate group by the Southern Poverty Law Center and Paul Cameron himself has been dropped by the American Psychological Association from its membership in 1983 for a violation of the Preamble to the Ethical Principles of Psychologists.

What really baffles me is that the same people who are the loudest about a perceived culture of promiscuity among gay men, and the consequent danger of certain illnesses, are the same people who then argue in the same breath that the LGBTI community should be excluded from the social structure developed to support stable, monogamous relationships between two people to the exclusion of all others … marriage. Confused much?!

But let’s face it, no matter how ‘concerned’ Jim Wallace pretends to be about health issues, this self-confessed practitioner of Christian love really only intends to use the subject as a weapon to further denigrate the LGBTI community and has no interest whatsoever in improving the health of that community.

Health issues in the LGBTI community

Yes, indeed the gay community does have health issues, including still relatively high HIV infection rates, mental health issues, higher than average rates of youth suicide and, admittedly, drug use. But have you ever wondered why that may be?

The respected Australian Beyond Blue organisation also highlighted the insidious effects of homophobia on LGBTI and young LGBTI people:

What do you think it does to the mental health of a group of people if another group of people constantly asserts that they are a sick abomination, simply because of who and what they are?! Homophobia, and its societal expressions and practice, is not just a personal and social disorder and a social injustice but also a public health scandal.

Minority groups that are alienated and excluded from mainstream society by hate, discrimination and inequality, are highly likely to suffer poor health outcomes primarily due to that alienation, exclusion, hate, discrimination and inequality. Another example of this assertion is Australia’s indigenous population with their lower than average life expectancy and high rates of diabetes, heart disease and other ailments.

For example:

  • what better prevention for HIV infection than the promotion of stable, long-term and monogamous relationships, by showing acceptance for same-sex relationships and legalising same-sex marriage; and
  • what better way to reduce LGBTI youth suicide and drug use and improve the mental health of LGBTI than by reducing the hate and discrimination they have to suffer and the ignorant stigma society has attached to homosexuality for centuries?

Research from Columbia University has highlighted that in countries that are ignorant, hateful and homophobic towards homosexuality, 12 years are shaved off the lifespan of homosexuals:

Even though same-sex marriage has only been around for a relatively short time, medical evidence showing that same-sex marriage improves the health outcomes for LGBTI is growing:

The eminent New England Journal of Medicine has also weighed in on the subject on 10 April 2014 when it published an article titled ‘Same-Sex Marriage — A Prescription for Better Health‘ (2014; 370:1373-1376).

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Hate and homophobia’s deadly consequences

It’s one thing to talk about the hate and homophobia and the culture of violence created by bigotry in the abstract, but it’s very important to see the continuing real life deadly consequences of this culture of hate. One can only scratch the surface of the lethal anti-LGBTI violence around the world, but here are a few notable examples:

Matters are particularly bad in the Middle East, Africa and Russia. Sadly, these examples are just a drop in the ocean of the death, misery, suffering and violence that’s visited upon the LGBTI community around the world because of imbecilic bigotry and hate. This violence is also often denied, overlooked or simply swept under the rug as an inconvenient truth.

Despite the above, it appears that some continue to occupy an alternative universe, where they believe they are being discriminated against by the fact that they are not allowed to bully LGBTI … seriously!

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LGBTI, the economy and happiness

In further irony vis-à-vis the position of homophobes worldwide, there is now research emerging that shows that both the happiness and economic prosperity of nations are affected by, and linked in some manner to, the treatment of their LGBTI citizens:

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The international experience 

The French experience

The French government moved to legalise same-sex marriage (and adoption) in early 2013 and their experience has provided a unique insight into the role religion, in particular Catholicism, plays in opposing equality and creating a hateful and homophobic environment. The worldwide role American evangelicals play in opposing equality and human rights for the LGBTI community was also put on display.

France
The French face of homophobia

Although during the legislative process public support for same-sex marriage in France slipped from its initial high of 65%, this was arguably attributable to the deterioration of the national debate into hateful lies, violent protests (even allegedly using children as human shield to break police barriers) and homophobic violence against individuals by opponents.

France’s top Catholic bishop, Cardinal Andre Vingt-Trois, dared to go as far as warning the government that it risked ‘inciting violence’ by legalising same-sex marriage.

An interesting (or disturbing) revelation that came out of the French campaign opposing same-sex marriage, was the role of the American Catholic hate group, the National Organization for Marriage (NOM). It was revealed they played an active role in supporting anti-LGBTI hate groups in France and were reportedly behind creating France’s anti-LGBTI ‘Laissez-Nous Voter’ website.

Fortunately, these underhanded tactics did not sway France’s politicians from legalising same-sex marriage. In fact in some cases it may have had the opposite effect, as some reportedly have changed their minds and voted in favour of marriage equality having seen the horrendous expressions of hate.

As the bill returned to the French National Assembly for final approval, the bigoted and homophobic underbelly of French society has continued to show its ugly, violent face, forcing the French President to call out the opponents of same-sex marriage on their violent homophobia.

Ironically, as the Washington Post highlighted, the legalisation of same-sex marriage revealed a surprising contrast between a supposedly ‘starchy’ and old-fashioned UK, where passing same-sex marriage was a comparatively civilised affair, and a ‘freewheeling’ France, where vicious, homophobic mobs filled the streets.

I dare suggest though that the upheaval and violence will benefit France in the long-run. France, like most other Western societies, had lived in comfortable ignorance of the real level of bigotry and homophobia that underlies their culture for too long. These events have flushed out that bigotry and homophobia and laid bare the simmering hatred and violence for all to see. I have confidence that these events will be a wakeup call for the France that is built on the principles of liberté, égalité, fraternité to reject and stamp out these out-dated attitudes. Of course France is not an isolated example, as a survey shows that homophobia is alive and well across Europe.

On 23 April 2013 the French National Assembly voted by 331 to 225 in favour of same-sex marriage, clearing the final hurdle, despite a last minute rally by opponents which made the hashtag ‘#IlFautTuerLesHomosexuels’ (‘HomosexualsMustBeKilled’) trend on Twitter in France.

Consequently, France had become the 14th country in the world to legalise gay marriage.

Even after the passing of the law bigotry and homophobia continued to show it’s true ugly violent self and its complete and utter disregard for the democratic process, the separation of church and state and the principle of secularism.

In a further significant victory for same-sex marriage in France, the country’s constitutional court rejected a challenge to the law passed by Parliament and President François Hollande has formally signed the bill into law.

In a final act of sad desperation, which highlights the utter madness of the opposition to same-sex marriage and the instability of the provocateurs in the anti-gay movement, Dominique Venner, 78, a far-right essayist and activist, has shot himself dead at the altar of the Notre Dame Cathedral in Paris, in an apparent protest against France’s adoption of same-sex marriage …

The journey in France ended on a high note on 29 May 2013, with the first gay wedding between Vincent Autin and Bruno Boileau, in the southern city of Montpellier, highlighting that love will always triumph over hate. Congratulations!

In a final footnote to the legalisation of same-sex marriage in France, in October 2013, France’s highest court had ruled that mayors cannot refuse to hold same-sex marriage ceremonies on the grounds that it conflicts with their beliefs. It is anticipated that the group of mayors opposed to performing same-sex marriage ceremonies may take their case to the European Court of Human Rights. It remains to be seen how the Court would react to such a case given its recent ruling in appeals from the UK, effectively holding that equality trumps religious freedom.

In November 2014, former French president Nicolas Sarkozy, who had embarked on a political comeback, made some bizarre comments to the effect that France’s same-sex marriage law should be scrapped, despite the fact that overwhelming public support and a social justice imperative remain for same-sex marriage:

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The United Kingdom experience

The United Kingdom legislated for ‘civil partnerships’ in 2005, although the government was careful to emphasise that this was not ‘gay marriage’, even though under the law same-sex couples were given the same rights and responsibilities as marriage. Many have taken advantage of the new legal framework, others continued to campaign for full equality.

In September 2011 at the Liberal Democrat Party conference it was announced that the government would launch consultation on how to implement equal civil marriage for same-sex couples with the intention of legislative changes being made by the next general election. The Prime Minister’s office also announced that David Cameron was personally in favour of legalising same-sex marriage. On 12 March 2012, the government launched its consultation on equal civil marriage in England and Wales.

On 24 January 2013, the Marriage (Same Sex Couples) Bill was introduced to the Commons. On 5 February 2013, the bill passed its second reading in the House of Commons by 400 votes to 175.

In the UK there was also strong public support for the legalisation of same-sex marriage and the opposition came from the usual quarters:

UK
The British face of homophobia

While a civilised debate is in the nature of a secular, liberal democracy, some of the reaction from the UK churches and some others was arguably shrill, bigoted, homophobic and downright hysterical:

As I discussed above, the comparison drawn with Nazism in this context is particularly offensive. I also note that there were indications that the attitudes and language used by opponents of same-sex marriage in the UK may have been inflaming homophobic violence, similarly to France.

The Bill returned to the UK Parliament in May 2013 where it faced strong objections, however it was saved by cross-party support. On 21 May 2013, in a significant move forward, the House of Commons voted overwhelmingly by 366 to 161 in favour of the Bill, a majority of 205.

As the Bill proceeded to the unelected House of Lords, a “wrecking” amendment aimed at blocking the Bill tabled by Lord Dear, a Crossbench peer, was defeated by 390 votes to 148. Many interpreted this as a sign the Bill would clear the House of Lords with ease. As anticipated, on 15 July the Bill was approved by the House of Lords, and on 16 July, in the final requisite vote for the Bill, the House of Commons cleared the way for same-sex marriages in the UK. Queen Elizabeth II, not a known social radical, wasted no time signing the Bill into law.

The first same-sex weddings took place in the UK at the end of March 2014.

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The Irish experience

Ireland says yesSince 2011, the Civil Partnership and Certain Rights and Obligations and Obligations of Cohabitants Act 2010 gave Irish same-sex couples rights and responsibilities similar, but not equal to, those of civil marriage. This legislation followed a long line of legal and constitutional reviews looking into various social issues, including cohabitation and same-sex relationships.

Ireland was a particularly interesting case because it’s a staunchly Catholic nation with a historically strong devotion to the Catholic Church and a Constitution that enshrines the family as the centre of society. Ireland was a classic example of the danger of entrenching the social values of the time in a nation’s constitution. What may seem unobjectionable at one point in time can become entirely unreasonable before long and prevent social progress.

The Irish Constitution came into force in 1937. It strongly reflects the thinking of the time and the influence of the Catholic Church. For example, Article 41 ‘recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law’ and says that the ‘State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State’, but wait there is more in Article 41:

…
In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
…

Consequently, due to a range quite old-fashioned concepts embedded in the Irish Constitution, which are inherently antagonistic to the idea of marriage equality, the Irish Parliament couldn’t pass a law in favour of same-sex marriage. The only way for Ireland to legalise marriage equality was by a referendum, amending the Irish Constitution. The new Irish coalition government elected in March 2011 held a special Constitutional Convention from 2012 to 2014 to discuss proposed amendments to the Irish Constitution, including plans to introduce same-sex marriage. On 10 July 2012, the Dáil Éireann, the lower house of the Irish Parliament, referred to the Convention the issue of whether to make provision in the Constitution for same-sex marriage. On 14 April 2013, the Convention approved provisions allowing for marriage equality, to be discussed by the Oireachtas Éireann, the Irish legislature, and put to a public referendum.

On 22 May 2015 Ireland held a referendum asking the Irish people whether marriage equality should become legal and the Constitution amended to include the following words:

‘Marriage may be contracted in accordance with law by two persons without distinction as to their sex.’

The Irish referendum was an overwhelming success, and Ireland became the first nation in the world to introduce marriage equality through a national vote. The ‘Yes’ vote is likely to have a significant impact not just on Ireland, but on the international fight for LGBTI equality.

The significance of this referendum was highlighted by the fact that it attracted the attention of America’s right-wing conservative Christians. One of the ‘No’ side’s strongest supporters was the notorious and lavishly funded American anti-gay hate group, the NOM. It has even been suggested that they had channeled funds to assist the ‘No’ vote. This would not be a surprising turn of events, considering the role NOM played opposing the campaign for marriage equality in France.

Quite predictably, a highly discredited Catholic Church also put up strong resistance against marriage equality in Ireland.

On the other hand, the Irish referendum was supported by the Government, the Irish Taoiseach (Prime Minister) and all other major parties. The pre-referendum polling also consistently showed over 70% public support which largely materialised at the ballot box.

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The New Zealand experience

By comparison to the French and UK experiences the passing of the New Zealand same-sex marriage bill was a relatively civilised affair. Perhaps the culture and historical context of New Zealand, being the first country in the world to give women the vote and having a general affinity with the indigenous Maori population, is more facilitating to social progress.

Fortunately, the same-sex marriage legislation in New Zealand was also supported from the outset by the conservative Prime Minister of the country and although there was the usual opposition from various religious groups, this seemed to have been more muted than elsewhere and had little effect on the substantial debate:

(A hilarious and heart-warming Parliamentary speech in support of New Zealand’s marriage equality legislation by Maurice Williamson MP, in which he addresses concerns put to him by opponents of same-sex marriage.)

One interesting trend that can be observed from New Zealand is that as the religious scare campaign against same-sex marriage was ramped up by opponents, public support appeared to have declined somewhat. This is similar to the trend observed in France.

The takeaway message from these trends is that supporters of same-sex marriage must focus on highlighting any misleading claims, outright lies, bigotry and homophobia from opponents until the very last-minute.

Significantly, on 17 April 2013, the bill legalising same-sex marriage, introduced by MP Louisa Wall, was finally passed by the House of Representatives of the New Zealand Parliament by 77 votes to 44 and the law came into effect upon receiving royal assent on 19 April 2013.

(A truly touching moment in New Zealand’s Parliament as the gallery and Parliament itself breaks into a traditional Maori love song ‘Pokarekare Ana’, upon the passing of their marriage equality legislation.)

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The US experience

Introduction

Nowhere has the marriage equality battle been as hard-fought and disgraceful as in the United States, except perhaps in recent France. However, despite a very vocal and often downright vile opposition, marriage equality was steadily spreading across the country. That progress was brought to full-fruition with the Supreme Court of the United States (SCOTUS) declaring marriage equality a constitutional right on 26 June 2015.

As of 27 April 2015, same-sex marriage was already legal in thirty-six US states, as well as the District of Columbia and twenty-two Native American tribes, covering more than 70% of the population of the US. However on 26 June 2015 in the historic landmark judgment in Obergefell v. Hodges, Case No. 14-556, SCOTUS declared marriage equality a constitutional right.

2013 and 2014 were bumper years for the unstoppable spread of marriage equality. In May 2013 alone, three US States, Delaware, Minnesota and Rhode Island, legalised same-sex marriage. In June, following an earlier landmark SCOTUS decision, California joined and then New Jersey in October, following the intervention of the Courts in that State. In November the legislatures of two further States, Hawaii and Illinois, voted in favour.

In December the Courts in New Mexico and Utah held same-sex marriage constitutional. In January 2014 Oklahoma and in February Texas and Virginia joined the list after their respective same-sex marriage bans were found unconstitutional by the Courts of each State and the tide of sweeping social progress appeared unstoppable as one federal judge after another across the nation declared same-sex marriage bans unconstitutional. Except one, Judge Jeffrey S. Sutton, who wrote the majority opinion in a decision upholding bans on same-sex marriage in four States, Kentucky, Michigan, Ohio and Tennessee.

Initially SCOTUS had declined to hear appeals challenging the federal court decisions declaring same-sex marriage bans unconstitutional, meaning that same-sex marriages could go ahead in the affected US States. However, the decision of Judge Jeffrey S. Sutton had set the scene for a SCOTUS showdown on the issue. That showdown has materialised on 16 January 2015 when SCOTUS had announced that it would hear appeals from four states involved. Following the 26 June 2015 SCOTUS ruling which found marriage equality a constitutional right, the rest is now history.

Despite the speed of events outlined above, it has been noted that same-sex marriage, or even basic human rights protections for the LGBTI community, could take quite some time to become legal in every State of the US, especially in socially regressive, Republican controlled States:

In fact the legislatures of some conservative States have gone as far as responding to the spread of marriage equality and acceptance by proposing and passing laws that prevent anti-discrimination laws being enacted by local authorities designed to protect the LGBTI community, and expressly permit discrimination against LGBTI people:

Interestingly, polls in the US have been showing significant increase in public support since the turn of the millennium, despite (or perhaps because?) the best efforts of evangelical Christians and hate groups such as the Westboro Baptist Church.

According to one poll, even 62% of US Catholics think that same-sex marriage should be legal and other polls have indicated that:

In a development that shocked some and delighted many, on 17 March 2015 the Presbyterian Church (U.S.A.), with and estimated 1.7 million active members and 3 million adherents, announced that its membership approved an amendment to its Constitution, recognising same-sex marriages.

Even former US president George Bush Senior has agreed to be an official witness at the same-sex wedding of two long-time friends and a growing group within the US Republican Party sees same-sex marriage as being consistent with the Western conservative values of freedom and liberty once championed by Ronald Reagan and Barry Goldwater.

In a historical moment for civil rights and the fight against religious extremism, intolerance, bullying and homophobia, on 10 May 2012, even the President of the United States of America, Barack Obama, announced publicly in a TV interview that he supports marriage equality:

On 21 January 2013 Barack Obama further advanced his position on LGBTI rights during his second inaugural address, by stating as follows:

…
We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

It is now our generation’s task to carry on what those pioneers began. For our journey is not complete until our wives, our mothers, and daughters can earn a living equal to their efforts. Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well.
…’

There is great comfort in the majority public support for same-sex marriage, and gay rights generally, including within many religious communities, and the fact that even corporate America has bravely stepped up in support of marriage equality and social justice. I should also acknowledge that, perhaps somewhat surprisingly, a growing number of Republicans can also be counted among the supporters of marriage equality.

General attitudes have certainly come a very long way, considering that in the 1950s even the American Civil Liberties Union (ACLU) washed its hands of homosexuals. It was official ACLU policy that laws criminalising homosexual behavior did not violate the American Constitution and that:

…
It is not within the province of the Union to evaluate the social validity of laws aimed at the suppression or elimination of homosexuals.
…
ACLU Position on Homosexuality (7 January, 1957)

I am confident that in the end common decency, equality, humanity, love and social justice will triumph over hate, homophobia and ignorance.

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The Supreme Court of the United States of America

As a historical note, the issue of same-sex marriage first came to SCOTUS in 1972, after a gay couple was denied a marriage license in Minneapolis in 1970 and they petitioned the court for a review. The petition was rejected in a one-sentence order.

Until 2013, the ‘Defense of Marriage Act‘, commonly referred to as DOMA, enacted in 1996, prevented the US Federal Government from recognising same-sex marriages and allowed each state to refuse recognition of same-sex marriages performed in other states. However, on 26 June 2013, SCOTUS held DOMA to be unconstitutional.

In two separate hearings on 26 and 27 March 2013, SCOTUS heard arguments on matters relating to the issue of same-sex marriage:

  • the first hearing related to the constitutionality of the voter initiated ballot Proposition 8, designed to ban same-sex marriage in the State of California by amending its constitution and inserting a new provision stating that ‘only marriage between a man and a woman is valid or recognized in California’; and
  • the second hearing related to a challenge to the constitutionality of DOMA, which restricted federal marriage benefits and required inter-state marriage recognition only for opposite-sex marriages (notably, DOMA has been denounced as arguably unconstitutional even by the ex-President who signed it into law).

Now, you would think that opponents of same-sex marriage would not let such an opportunity go to waste and would bring their absolute A-game. But what do you do when your absolute A-game is prejudiced, uninformed bigotry and homophobia?! Well, now we have an answer to that question: you end up with the lamest, most ridiculous and unsupportable arguments (all of which have been already thoroughly debunked). So much so, that even Bill O’Reilly(!) was left with no choice but to admit that ‘opponents of same-sex marriage have been unable to do anything but “thump the Bible” in their arguments‘.

But you should make your own judgment as to the strength (or ridiculousness) of the arguments presented to SCOTUS by those opposing same-sex marriage (or the affirmative position), by listening to, or reading, them:

The briefs filed in both cases have also been made available by the Court.

While awaiting the SCOTUS judgments with bated breath, I queried whether the SCOTUS judges would live up to the courage shown by their predecessors in dealing with arguably far more difficult civil rights issues, by handing down a substantive judgment on the matter, or whether they would weasel their way out of having to take a stand against America’s shrills, especially given their decision which gutted and destroyed the crown jewel of the American civil rights movement, the Voting Rights Act of 1965, the day before they handed down their DOMA and Proposition 8 decisions.

The effective outcome of the historic SCOTUS judgments on 26 June 2013 was unquestionably a tremendous win for the human rights of the LGBTI community:

  • in the DOMA case SCOTUS struck down the legislation and held that it is unconstitutional because it violates the Fifth Amendment’s guarantee of due process and equal protection by singling out same-sex couples for different treatment (read the full judgment of the Court); and
  • in the Proposition 8 case SCOTUS shied away from handing down a substantive legal ruling, however, by holding that the appellants had no standing to defend the constitutionality of California’s same-sex marriage ban (because they could not demonstrate that they would suffer any injury if the ban were to be struck down and same-sex marriages were allowed), SCOTUS effectively reinstated same-sex marriages in California (read the full judgment of the Court).

While this is undoubtedly a better than anticipated outcome from a largely conservative SCOTUS, the Proposition 8 judgment fell short of giving a substantive legal ruling on the constitutionality of same-sex marriages, consequently the State-by-State battle for equality and social justice continued.


(The President of the United States of America, Barack Obama, telephones the lesbian couple involved in the Proposition 8 case, to congratulate them.)

It was exciting to see the California appeals court moving swiftly to lift the hold on same-sex marriages and California starting to issue marriage licenses, a couple days after the SCOTUS decision, just in time to coincide with annual worldwide Pride events. One of the first couples to get married were Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo, the plaintiffs in the SCOTUS Proposition 8 case.

Even before SCOTUS handed down its decision, bigoted, hateful, homophobes have announced that they would defy any decision handed down by the country’s highest court that contradicts with their own views. Talk about utter and complete pious arrogance, callous disregard of the doctrine of separation of church and state and the rejection of the founding principles of liberal, secular democracy!

In a postscript to the fight against Proposition 8 in California, on 14 August 2013, the Supreme Court of California has rejected a final petition from the supporters of Proposition 8 and formally closed the case.

In historical further development, on 16 January 2015 SCOTUS decided to hear cases from four states regarding state bans on marriage for same-sex couples. This SCOTUS hearing and decision likely to be a decisive conclusion in the battle for marriage equality in the US with a final adjudication as to whether marriage equality is a constitutionally protected right. A good summary of the four cases is provided by the Human Rights Campaign.

A brief background story on Jim Obergefell, the lead plaintiff, and his late partner, John Arthur, who passed away from ALS (Lou Gehrig’s disease), or amyotrophic lateral sclerosis, a progressive neurodegenerative illness.

In March 2015 it was announced that SCOTUS would hear oral arguments in the matter on 28 April 2015. SCOTUS has made the briefs of the parties to these four cases available on its website.

A number of so-called Amici Curiae briefs were submitted to SCOTUS by third parties in support of marriage equality in the US. The most significant of these submissions include:

  • the Government of the United States;
  • the American Psychological Association;
  • the American Sociological Association;
  • the American Bar Association;
  • over 300 prominent, conservative Republicans; and
  • 379 large American corporations, including Accenture, Amazon, American Airlines, American Express, Apple, AT&T, Bain & Company, Baker & MacKenzie, Bank of America, Barclays, Barnes & Noble, Ben & Jerry’s, Bloomberg, The Boston Consulting Group, Cablevision, CBS, CGI, Chubb, CIGNA, Cisco, Citigroup, Coca-Cola, Colgate-Palmolive, Comcast, Corning, Credit Suisse, Deloitte, Delta Airlines, Deutsche Bank, The Dow Chemical Company, Dropbox, DuPont, eBay, Ernst & Young, Estée Lauder, General Mills, GlaxoSmithKline, Goldman Sachs, Google, Hewlett-Packard, Hilton, HSBC, Intel, JetBlue, The Jim Henson Company, Johnson & Johnson, JPMorgan Chase, Kimberly-Clark, KPMG, Levi Strauss, Marriott, Marsh & McLennan, McGraw Hill, McKinsey & Company, Microsoft, Moody’s, Morgan Stanley, Nationwide Mutual, The New England Patriots, NIKE, Northrop, Office Depot, The Ogilvy Group, Oracle, Orbitz, Pandora, Pepsi, Pfizer, PricewaterhouseCoopers, Procter & Gamble, Prudential, Rockwell Automation, Staples, Starbucks, Symantec, Target, Thomson Reuters, Twitter, UBS, United Airlines, Verizon, Viacom, Visa, VMware, Walt Disney, Wells Fargo, Wyndham and Xerox. No Hobby Lobby …

In an interesting development, one week before the SCOTUS hearing, an ABC News/Washington Post poll indicated that popular US support for marriage equality had reached a record high, with 61% of Americans firmly in support.

The highly anticipated oral arguments in Obergefell v. Hodges (Docket Number: 15-556) took place before SCOTUS on 28 April 2015. There were two questions before the court in the case of the lead plaintiff, Mr Obergefell, in the consolidated cases:

  1. whether Ohio’s constitutional and statutory bans on recognition of marriages of same-sex couples validly entered in other jurisdictions violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution; and
  2. whether Ohio’s refusal to recognize a judgment of adoption of an Ohio-born child issued to a same-sex couple by the courts of a sister state violates the Full Faith and Credit Clause of the U.S. Constitution.

SCOTUS has made available audio recordings and transcripts of the arguments on both questions:

The hearing itself was somewhat anticlimactic. As anticipated, Chief Justice John Roberts and Justices Samuel Alito and Antonin Scalia were particularly hard on counsel representing the plaintiffs and Justice Ginsberg was her usual outspoken liberal stalwart. SCOTUS Blog noted that the judges offered no clear indication as to which way the court may decide, which of course is to be expected. As for all the tired old anti-LGBTI arguments that were presented in opposition, we heard them all before; for the lack of a better term, ad nauseam.

SCOTUS chose 26 June as the date for handing down its landmark decision in Obergefell v. Hodges, Case No. 14-556 and this was considered to be a positive sign for a favourable decision on marriage equality.

The date has historic significance for LGBTI rights in the United States given two previous landmark gay civil rights judgments have been handed down by SCOTUS on the same date in 2003 and 2013 respectively. In the 2003 Lawrence v. Texas 539 U.S. 558 (2003) decision SCOTUS ruled a Texas law making it a crime for two persons of the same sex to engage in intimate sexual conduct unconstitutional. And in 2013 SCOTUS delivered the two milestone decisions mentioned above in United States v. Windsor, the DOMA case, and Hollingsworth v. Perry, the Proposition 8 case.

At the conclusion of this final legal battle before SCOTUS, the Court declared marriage equality in the United States a constitutional right.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
…
It is so ordered.
The Supreme Court of the United States

President Barack Obama welcomed the decision by SCOTUS and celebrated it as a ‘victory for America’:

Jim Obergefell also gave a heartfelt speech, dedicating the victory to his late husband:

For historical news updates on the US fight for LGBTI equality click here.

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US anti-LGBTI hate groups

There are countless, well-financed and well-organised anti-LGBTI hate groups in the US. These groups will stop at nothing to spread lies and misinformation about the LGBTI community.

For example, the Witherspoon Institute, went as far as producing fake scientific research against same-sex marriage in an attempt to influence the courts and public opinion on the issue. Admittedly, this type of underhanded and outright misleading and deceptive conduct is not unique to American zealots, as evidence of similar behaviour was uncovered in Tasmania during the Parliamentary debate on the legalisation of same-sex marriage in that State.

Ironically this activity occurred in the face of:

NOM, the well-known American anti-LGBTI hate group, is famous for the ridiculous 2009 ‘Gathering Storm‘ television ad campaign in the US against same-sex marriage. The video has now been made private by NOM on YouTube, but copies are still floating around online.

Thankfully Stephen Colbert, host of Colbert Nation on Comedy Central, has responded to this ad by his own Stephen Colbert’s Coalition Anti-Gay Marriage Ad parody. Sometimes humour is the best, and perhaps only sensible, response to arguments that are void of facts and truths and rely only on bias, bigotry ignorance and unfounded fears.

In the context of NOM it’s also significant that they are not content with spreading their hate, homophobia and lies on US soil alone. NOM has involved itself in the failed but nevertheless violent anti-same-sex marriage campaign in France and has also been revealed to have played a secret role in drafting Russia’s infamous anti-LGBTI legislation. NOM – a truly international house of hate-mongering.

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US evangelicals in Africa

As American evangelicals, and Christians generally, are loosing their grip on Western populations, where ignorance and intolerance is rejected by ever-growing numbers, they are now focusing their attention, hate, ignorance and intolerance on African nations.

American evangelicals pushed and sponsored numerous anti-LGBTI initiatives, including legislation criminalising homosexuality and even sanctioning the death penalty for being gay. US evangelicals in Africa have also been responsible for creating an environment that lead to the killing of gay men. Countries such as Ethiopia, Nigeria and Uganda have passed particularly repulsive anti-LGBTI laws and have become societies permeated by ignorance, hate and homophobia inflamed by ignorant, lying and downright evil American evangelicals:

A fascinating documentary titled ‘Missionaries of Hate‘, provides a deeper insight into the odious growing influence of US evangelical groups in Uganda, spreading their message of homophobia and hate.

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The Duck Dynasty and the ‘free speech’ fury

A particularly interesting case of bigotry and hypocrisy played out in US popular culture in 2013. No doubt you would have heard of Phil Robertson, and his band of pathetic hypocritical bigots. The Duck Dynasty patriarch, and as it turns out an arch-bigot, gave an interview to GQ and said some idiotic and awful things about homosexuality (and also African Americans) because, of course, the … bible and god and stuff:

“It seems like, to me, a vagina—as a man—would be more desirable than a man’s anus. That’s just me. I’m just thinking: There’s more there! She’s got more to offer. I mean, come on, dudes! You know what I’m saying? But hey, sin: It’s not logical, my man. It’s just not logical.”
…
“I never, with my eyes, saw the mistreatment of any black person. Not once. Where we lived was all farmers. The blacks worked for the farmers. I hoed cotton with them. I’m with the blacks, because we’re white trash. We’re going across the field … They’re singing and happy. I never heard one of them, one black person, say, ‘I tell you what: These doggone white people’—not a word! … Pre-entitlement, pre-welfare, you say: Were they happy? They were godly; they were happy; no one was singing the blues.”
…
“Everything is blurred on what’s right and what’s wrong,” he says. “Sin becomes fine.”

What, in your mind, is sinful?

“Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men,” he says. Then he paraphrases Corinthians: “Don’t be deceived. Neither the adulterers, the idolaters, the male prostitutes, the homosexual offenders, the greedy, the drunkards, the slanderers, the swindlers—they won’t inherit the kingdom of God. Don’t deceive yourself. It’s not right.”

This from a man who encouraged grown men to marry 15-year-old girls! How do you spell p-e-d-o-p-h-i-l-i-a?!

After his comments were published in GQ, Phil Robertson was suspended from his hit show by the A&E network, sparking a huge boycott by bigots and haters, howling about ‘freedom of speech’ and the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As The Huffington Post amusingly put it at one point, Phil Robertson’s supporters were losing their minds.

Setting aside the fact that none of the people involved in the ‘outrage’ appeared to have an understanding of their own First Amendment (simply put, designed to protect free speech vis-à-vis the government), they also overlooked their own previous actions that directly undermined their arguments and credibility.

The treatment of the Dixie Chicks, Martin Bashir or Dick Metcalf, vis-à-vis Phil Robertson, are but just three high-profile examples that immediately come to mind in respect of their mind-blowing ‘free speech’ hypocrisy.

Those with that platform, with a microphone, a camera in their face, they have to have some more responsibility taken.
Sarah Palin (FOX & Friends, 5 December 2013)

However, sadly in this case Phil Robertson and his army of haters and homophobes have triumphed over common decency and the family even felt emboldened by the support they received.

There have been some excellent responses in the media to Phil Robertson’s comments that are worth a read:

And in case you are wondering, Phil Robertson came out of this scandal having learned absolutely nothing. Thankfully, Duck Dynasty’s popularity has since declined, but it appears that there is always room on US television for at least one family of virulent, hateful homophobes.

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The Australian experience

The Australian politics of same-sex marriage have historically played out at the State level, given the utter paralysis at the Federal level.

Although, calling the Federal approach ‘paralysis’ is arguably misleading given the Liberal Federal Government, led by John Howard, very consciously introduced expressly anti-LGBTI amendments into the Marriage Act 1961 (Cth) to prevent the occurrence, and even recognition, of same-sex marriages in Australia.

The Marriage Amendment Act 2004 (Cth) inserted the following new provisions into the Marriage Act:

‘marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
…
88EA Certain unions are not marriages
A union solemnised in a foreign country between:
(a)  a man and another man; or
(b) a woman and another woman;
must not be recognised as a marriage in Australia.’

The downright spitefulness of these amendment is highlighted by the legal requirement on marriage celebrants under section 46 of the Marriage Act to specifically state during wedding ceremonies, whether you like it or not, that:

Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

With respect to the socially moderate, or even progressive, members of the Liberal Party of Australia, the party and its membership has a questionable track-record on LGBTI rights:

Tony Abbott’s steadfast personal opposition to marriage equality, both in opposition and in government, earned him the loyal support of right-wing, conservative Christians, reportedly even saving his ailing Prime Ministership in February 2015.

To be fair to the Liberal Party, it must be acknowledged that the Marriage Amendment Act 2004 (Cth) was passed with the support of the Australian Labor Party. Although the Labor Party later adopted a progressive national policy platform on same-sex marriage, they simultaneously capitulated to their socially conservative faction by giving the policy a mere conscience vote status, continuing to make the passage of any marriage equality legislation at the Federal level difficult.

While in government, the Labor Party had also squandered a number of opportunities to take leadership on the issue. In fact Julia Gillard opposed marriage equality throughout her Prime Ministership and unfortunately by the time Kevin Rudd ‘evolved’ on the issue it was too late, the Labor Party had lost government.

However, the Federal status quo was shattered again by Liberal Democrat David Leyonhjelm in late 2014.

The Senator introduced the Freedom to Marry Bill 2014 into Parliament on 26 November 2014, to the displeasure of some. Given the political climate, the Bill had little chance of success. Nevertheless, at least it continued to highlight that the issue of same-sex marriage is not going away, ignorance is not a valid public policy position and it’s now only a matter of political will and time before same-sex marriage is legalised in Australia.

On 18 March 2015 the Australian Senate passed a motion calling for all members of parliament to have a conscience vote on same-sex marriage and the following day it was reported that Senator David Leyonhjelm would make a second-reading speech on his Freedom to Marry Bill the following week, triggering a formal debate on the legislation. Unfortunately, the planned second reading never took place as the Liberal Party stalled on resolving the issue of a conscience vote on same-sex marriage in the party room. Consequently, without a conscience vote being available to members on the conservative side of politics, the bill had no chance of passing and was not pursued by the Senator.

Following the landslide marriage equality referendum victory in Ireland on 22 May 2015, the issue was reinvigorated in Australia. Some, mostly on the conservative and religious side of politics, again tried to obfuscate the issue by raising the prospect of a referendum or plebiscite. On 26 May the Greens responded by announcing that they would bring forward a Senate debate on their marriage equality bill in the Senate to 18 June. They also went a step further and set 12 November for a Senate vote on the bill.

Not to be outdone, later the same day Opposition Leader Bill Shorten announced he would introduce his own marriage equality private member’s bill into Parliament on Monday, 1 June 2015, which will be seconded by his Deputy Leader, Tanya Plibersek.

One of the curious ironies of the Australian position is that, as of February 2015, I could have married my same-sex partner in my grandmother’s home state of South Carolina. Yes, South Carolina! In the deep south of the US of A! But I couldn’t marry him in my hometown in Sydney, Australia! In our supposedly, modern, progressive, secular, liberal democracy …

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The NSW experience

In my home State, New South Wales, there is no formal legal celebration or recognition of same-sex relationships. In 2008, when my partner and I decided to hold our private commitment ceremony, the City of Sydney ran a ‘Relationship Declaration’ program, which was just a fancy title for a council register. At the time we did take up that option, so that we would have some sort of a formal memento of the occasion. Since 2010 we have a sad State ‘Relationship Register‘, following the passing of the Relationships Register Act 2010 (NSW).

In 2013 the Social Issues Committee of the NSW Legislative Council conducted an Inquiry into Same-sex marriage law in NSW. The Inquiry released ‘Report 47 – Same-sex marriage law in NSW‘ on 26 July 2013, in which it formed the view that NSW has the power to legislate same-sex marriage, although this was likely to be challenged in the High Court by opponents. I am very proud of the fact that I made a submission to this Inquiry and the Report contains a reference to, and a quote from, my submission at paragraph 3.24.

Following the report, a multi-party working group of MPs started working on introducing a same-sex marriage bill into NSW Parliament.

As anticipated, debate of a same-sex marriage legislation in the NSW Parliament was eventually announced for October 2013. This was likely to mean that a lot of homophobic vitriol was about to be unleashed, but that’s just the price we pay for progress sometimes. On the other hand, it was also emerging as another warning shot across the bow of the good homophobic ship of the Federal Liberal Party as it geared up to fight the ACT’s same-sex marriage legislation, making it clear that the issue was not going away.

As noted above, in early 2013, Barry O’Farrell, the then leader of the NSW Liberal Party and Premier of the State, announced his personal support for same-sex marriage, a marriage equality bill for NSW and the availability of a conscience vote on the issue for members of the NSW Liberal Party. When it came to the crunch, perhaps not entirely unpredictably, he did a 180 on the issue and announced that he would not vote for the marriage equality bill introduced into NSW Parliament … that very day. Clearly, six months is a long time in politics. Soon after Barry O’Farrell made his announcement, a number of other conservatives, previously believed to be supporters of the legislation, made it known that they would not be voting for the bill either. Quite disingenuously they suddenly loudly insisted that marriage equality is a matter for the Federal Government, well knowing:

  • the Federal Liberal Government’s unambiguous and unwavering opposition to the subject;
  • our Prime Minister’s, Tony Abbott, personal opposition to marriage equality; and
  • the fact that the Liberal Federal Government was already fighting the ACT’s marriage equality law in the High Court.

As anticipated, long-term LGBTI foe, Fred Nile has also promptly called a prayer meeting in response to the proposed bill and, in an open letter posted on the website of the Christian Democratic Party, stated that ‘[w]e must pray and seek Almighty God’s victory over this Bill which has originated in the depths of hell’. I understand the meeting was attended by about forty people.

As the LGBTI communities of the US States of Illinois and Hawaii celebrated marriage equality, the same-sex marriage bill was voted down 21-19 in the NSW Upper House, on 14 November 2013.

In a telling moment, arch-homophobe Fred Nile specifically thanked Barry O’Farrell, and noted that the defeat was largely made possible by the Premier’s announcement that he changed his mind and no longer supported the bill.

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The ACT experience

The Australian Capital Territory has a long, proud and convoluted history of recognising same-sex relationships within the scope of its legislative power.

The ACT is in a unique situation being a Territory, rather than a State, as this enables the Federal Government to override laws passed by the ACT legislature. This is due to an anomaly in the Australian Constitution, whereby section 122 provides that ‘[t]he Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit’.

Liberal Federal Governments have historically used (and arguably abused) this constitutional power repeatedly to interfere in the democratic self-governance of Australian Territories in respect of laws that contradicted their social agenda, including in the ACT and the Northern Territory.

The ACT first passed a civil union legislation for same-sex couples in 2006. However, the Civil Unions Act 2006 (ACT) was promptly disallowed by the Liberal Federal Government. This action didn’t come as a great shock to many, given the same Government was responsible for the passing of the 2004 anti-LGBTI amendment to the Marriage Act 1961 (Cth), designed to restrict marriage in Australia to between a man and a woman.

The ACT made a brave second attempt at legislating same sex unions later that year, based on the equivalent UK civil partnership laws, passing the Civil Partnership Act 2006 (ACT). However, the Liberal Federal Government promptly overrode that Act as well.

Following the demise of the Liberal Federal Government, the ACT again proposed a new civil partnership legislation in December 2007, however this time the Labor Federal Government has made it clear that it would not allow the law to stand in the form proposed, finding the ‘ceremonial aspects’ of the Bill unacceptable. After several unsuccessful attempts to modify the Bill so it would be acceptable to the Federal Government, the legislation that passed ended up being nothing more than a mere ‘relationship register’.

In 2009 the Greens introduced an amendment to return the ceremonial aspects of civil unions to the Act. The amending bill passed and the ACT legalised civil partnership ceremonies for gay couples. Consequently, the Labor Federal Government made some threats to override the Act, but eventually it was left to stand.

In 2012, the ACT introduced and passed the Civil Unions Bill 2012 (ACT), which was effectively identical to the laws repealed by the Liberal Federal Government in 2007. This Act was also allowed to stand by the Labor Federal Government.

In July 2013 the ACT Government, encouraged by the Report issued by the Social Issues Committee of the NSW Legislative Council, announced that it would soon introduce a new law to legalise same-sex marriage in the ACT.

In September 2013, the Chief Minister of the ACT, Katy Gallagher, announced that same-sex marriage would be legislated by the end of the year. The ACT was making this latest move in an interesting new political environment, following the return of a Liberal Federal Government. As expected, the usual suspects were immediately agitating the government to take steps to override the ACT’s same-sex marriage law, seemingly choosing to interpret the loss of government by Labor as some sort of a ‘referendum’ on the issue of same-sex marriage. A highly disingenuous position to take for anyone who was familiar with the issues raised leading up to the election and the growing, majority public support for same-sex marriage.

While the ACT appeared confident that the proposed law would survive any constitutional challenge, it was a certainty that their confidence would be tested. Predictably, our Liberal Federal Government has formally confirmed that they would be challenging the law in the High Court, immediately upon its passing.

Despite legal threats from the Liberal Federal Government, the ACT government remained defiant to legislate same-sex marriage, in accordance with the policy platform they took to their previous election, confident in their legal position. In fact, similar legal advice was previously delivered by the Tasmania Law Reform Institute, in respect of Tasmania’s proposed same-sex marriage legislation.

In a historic move, on 22 October 2013 the Legislative Assembly of the ACT legalised marriage equality, despite the best efforts by some to stop it.

As anticipated, the Liberal Federal Government immediately challenged the law in the High Court.

The entirety of the High Court proceedings, including the submissions and transcripts are available on the court’s website: The Commonwealth of Australia v. The Australian Capital Territory Case C13/2013, including the written submissions by:

Following a 3 December 2013 hearing, the High Court reserved its decision in the matter until Thursday, 12 December, leaving the legislation in place in the interim, with couples planning same-sex marriages from 7 December. Reports indicated that at least 12 same-sex couples were planning to take advantage of this window of opportunity and marry on 7 December, and the ACT announced that 47 couples in total have been able to give the requisite four weeks notice that would have enabled them to marry before the High Court handed down its decision on 12 December.

As anticipated, same-sex marriages begun in the ACT as soon as the clock struck midnight on Friday, 6 December 2013:

Unfortunately, but not unexpectedly (a phrase I use often when discussing marriage equality developments in Australia), on 12 December 2013 the High Court held that the ACT legislation was in conflict with the Marriage Act 1961 (Cth) and was therefore unconstitutional. However, a significant message from the judgment of the High Court is that the Federal Government has the power to legislate same-sex marriage under the Constitution:

  • ‘s 51(xxi) gives the federal Parliament power to pass a law providing for same sex marriage’ [at paragraph 10]; and
  • ‘[w]hen used in s 51(xxi), “marriage” is a term which includes a marriage between persons of the same sex’ [at paragraph 38].

Further, in its own judgment summary the High Court specifically states that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament.

And those sentences above are a gift that will keep on giving. While it may put an end to State efforts to legislate same-sex marriage, as The Sydney Morning Herald headline put it ever so succinctly:

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The Tasmanian experience

Tasmania’s Labor Government also tried to take steps to legalise same-sex marriage. While the legislation had passed in the lower house of Parliament, the bill was defeated in the Upper House by a margin of 8-6.

One major, and controversial, theme of the debate in the Upper House appeared to be whether the bill was constitutional. Many who spoke expressed a view that highly likely it wasn’t and also expressed a concern about the likely costs of a potential High Court challenge to the constitutionality of the legislation.

In respect of such concerns I note that:

  • there are only seven people in Australia who can decide whether a legislation is constitutional … they are the justices of the High Court and none of them sit in the Upper House of Tasmania’s Parliament;
  • there have been plenty of examples of legislation being passed by lawmakers in circumstances where doubts have been raised about the constitutionality of the law (most recently the Commonwealth’s plain packaging legislation for tobacco, which the High Court has in fact found constitutional later, despite the doubts);
  • in any event, it should not have been presumed that a constitutional challenge to the legislation was a fait accompli;
  • it sets a dangerous precedent in a secular, liberal democracy when we subject a legislation dealing with the equality of citizens to concerns about the costs of a potential challenge to the law and may I also observe that LGBTI pay taxes too; and
  • finally, there are some serious and seemingly well founded concerns that opponents of the bill have engaged in their usual misleading, unethical and underhanded conduct on the issues of constitutionality and the potential costs of a possible legal challenge and that misinformation has very likely affected the votes of a number of independent Tasmanian MLCs and thus have caused the bill’s demise.

Notably, in October 2013 the Tasmania Law Reform Institute produced a report in response to Tasmania’s Upper House voting down the same-sex marriage bill in 2012, noting that, in their view, at the time there was no clear legal impediment for Tasmania to pass such a bill.

In an unexpected twist, following the advice of the Tasmania Law Reform Institute, the debate about Tasmania’s same-sex marriage bill returned to the Legislative Council. However, on 29 October 2013, the motion to revive the bill was defeated.

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The Queensland experience

In the Australian context, observing the Queensland experience is a must to highlight the hypocrisy surrounding same-sex marriage.

In 2011 the Queensland Labor Government passed the Civil Partnerships Act 2011.

At the time it was the overriding view that this is the most a State could do without falling foul of the Constitution, thus in many ways it was a significant symbolic act by a legislature.

When the Queensland legislation passed, many across the country protested that there were more important issues for politicians to deal with than gay unions or marriage. It was clear soon after the Liberal National Party winning government in Queensland that this position would be put to the test with immediate threats of repealing the law.

As expected, it didn’t take long for Queensland’s new government to find the time to tinker with same-sex civil unions. However, rather than repeal the act in its entirety, the Liberal National Party strangely decided to amend it, continuing to allow for the registration of civil unions (in their initial announcement) but disallowing any form of state-sanctioned declaration ceremony. Then, a few days later, the government announced that they would also be removing references from the legislation to ‘civil union’ and replacing it with ‘registered relationship’.

In effect the conservatives in Queensland seem to suggest that they really don’t mind the gays shacking up together and being registered like a car or a pet just as long as there is no celebration, dignity, humanity or joy involved. A curious position on the issue. I wondered at the time if the Queensland Premier would be handing out free collars, name tags and ear-tattoo vouchers to the lucky ‘registered’ couples?! Woof?!

Queensland couldn’t stop its homophobic rampage at destroying same-sex civil partnerships and they continued by dismantling surrogacy laws and even Queensland’s only health service aimed at gay men. Admittedly women and family planning and the arts weren’t too far behind getting on the chopping board.

Later it was also revealed that the Catholic Church and other shady back-room deals have played a significant role in rolling back the human rights of Queensland LGBTI by a decade or two:

In light of the above it is perhaps not surprising that a study shows that while 70% of the gay and lesbian community in Queensland are aware of gay and lesbian liaison officers, only 4% actually access the service even though 52% of the community report being the victim of either homophobic or transphobic abuse, simply because they don’t trust the police.

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The Australian referendum suggestions

In April 2013, Independent MP Tony Windsor, who voted against same-sex marriage in Federal Parliament in 2012, suggested that the issue be put to a referendum.

Kevin Rudd, upon briefly returning to the Prime Ministership, floated a similar idea, suggesting that the matter be put to referendum if the Liberal Party would refuse to allow a conscience vote on the issue.

While this is an interesting proposal, there are many issues that arise in this context. The first question that comes to mind is why would our Parliament try to shirk its responsibility to lead and legislate on this particular issue?!

Generally a referendum is only held to amend the Constitution. The last referendum took place in 1999, when people rejected an Australian republic, an otherwise winning proposition leading right up to the vote. To date Australia held 44 referendums, only 8 had ever passed. An added difficulty with a referendum is that it requires a majority of votes in a majority of States. Consequently, if the vote is lost say in the four least populous States, representing only about a third of Australia’s population, the referendum is lost … not exactly a national popular vote, as on that basis just over 1/6th of Australia’s population can effectively sink a referendum which may otherwise actually have majority support across Australia.

Do we need to amend the Constitution to achieve same-sex marriage in Australia? The answer is no.

What actually needs to be amended to facilitate same-sex marriage in Australia is the Marriage Act, especially in light of the 2004 anti-LGBTI amendments to that Act, and that is a matter for our Federal Parliament.

Section 51 of the Constitution grants power to Federal Parliament to make laws in relation to ‘marriage’, without reference to a same-sex option of course which would not have been considered at the time the document was drafted. However, I was always of the view that the High Court would have no difficulty finding that this power includes, and is sufficient to legislate in respect of, same-sex marriage. Arguably, this is a common sense interpretation of a document written over a hundred years ago, which would simply become unworkable if allowances were not made for the progress of society.

Imagine for example a ‘transportation’ power granted over a hundred or so years ago and the consequences if we accepted the argument that the power was limited to methods of transportation available at the time. This could leave new methods of transportation, such as air travel, outside the government’s power to regulate – this would be an untenable position. Although admittedly same-sex marriage falls under the category of social, rather than technological, progress, there is simply no tenable excuse to draw a technical distinction between types of human progress and argue that we can allow for one but not the other.

Once there was a strong argument that a referendum could circumvent a possible later constitutional challenge to legislation enacting same-sex marriage. However, such a referendum is no longer necessary to determine this particular issue, as the conclusion of my analysis above had received full support from the High Court in its judgment in the Commonwealth’s challenge against the Australian Capital Territory’s same-sex marriage law on 12 December 2013. There is a detailed account of this matter above, in the section dealing with marriage equality in the ACT. To sum up, the High Court held that the marriage power in the Australian Constitution does in fact enable the Federal Parliament to legislate same-sex marriage:

So, while the High Court struck down the ACT’s marriage equality legislation on the ground that it’s incompatible with the Commonwealth Marriage Act, it also handed a major victory for same-sex marriage supporters by very clearly declaring the scope of the Australian Constitution in this regard. This means that if and when a Federal Government enacts same-sex marriage legislation, the constitutionality of such a law is no longer in doubt.

However, to address Tony Windsor’s suggestion briefly, it seems that he wasn’t actually suggesting that we change our Constitution as a result of the same-sex marriage ‘referendum’ but rather voters would have been merely asked to vote yes or no on the ‘idea’. Taking the mood of the electorate in this way is actually a plebiscite, not a referendum. Plebiscites are traditionally not legally binding, unlike referendums. If the suggestion was for such a plebiscite, it would appear to have been a colossal waste of time and money as it would not have resolved anything. Such a plebiscite could show:

  • majority support, however, politicians would not be obliged to respond in any way; or
  • a lack of majority support for same-sex marriage, but would that be sufficient moral authority to deny equality to the LGBTI community in this day of age?

After all, as I already argued above, equality and human rights should never be subjected to the vagaries of public opinion or the attempts of religions to stamp their moral code and authority on a liberal, secular state.

In any event, at the time both Julia Gillard and Tony Abbott rejected Tony Windsor’s idea. Kevin Rudd’s referendum suggestion also failed to ignite much enthusiasm and was in fact roundly rejected by many.

ReferendumHowever, Christian groups jumped at the idea immediately and, unsurprisingly, were soon joined by some others. An old foe of the LGBTI community, Fred Nile, was particularly excited by the idea. On 7 December 2013 he even started a petition on Change.org calling for a referendum on same-sex marriage. The petition has been an embarrassing failure, as of mid-January 2015 attracting less than a thousand signatures.

Two days later, on 9 December, John Madigan, of the Democratic Labor Party, sprung a surprise anti-same-sex marriage referendum motion on the Senate, but the motion was defeated.

Wonder why they are so keen, especially given opinion polls have consistently shown popular support for same-sex marriage in Australia?

Well, let’s not forget that churches are well-organised grassroots institutions with a wealth of resources at their disposal, including considerable financial wealth, even if their numbers and overall influence are dwindling.

They would be able to gear up swiftly to run a well funded scare campaign against same-sex marriage, and history tells us that they are not afraid to fight dirty, using half-truths, lies and deception (as amply illustrated again during the 2013 Tasmanian Upper House election campaign and the 2013 Federal election). They would no doubt be prepared to demonise the LGBTI community nationwide without any moral apprehension, potentially causing untold collateral damage to our society in the process.

Referendums on this issue have been a favourite tool of right-wing conservatives in the United States to stymie social progress and equality. Practical experience from the US shows that such referendums have failed to resolve the issue and have rather inflamed and polarised the debate.

The French and New Zealand experiences illustrate that a well-funded, no holds barred anti-LGBTI hate campaign can in fact reduce popular support for same-sex marriage. A referendum would give our bigoted homophobes an unparalleled opportunity to unleash their hate and would likely cause a significant rip in Australian society. In this respect a referendum on the issue could be a terrible idea.

Would I like to see a referendum on same-sex marriage? Instinctively I would say yes, because I’m confident that in an ideal world a true majority of Australians would approve. However, I must qualify that statement and oppose a referendum because:

  • the majority of States requirement in our referendum rules could seriously skew the result and allow a mere 17% of Australia’s population to derail the vote if the four least populous States would happen to vote ‘no’;
  • based on previous history and international experience, religious and other conservative groups would be unlikely to observe appropriate boundaries, civility and respect in the anti-LGBTI hate campaign they would no doubt mount (and I suspect they would be smart enough to concentrate that campaign in our four least populous States for maximum effect); and
  • LGBTI rights groups would be unlikely to be able to match their financial means and thus an anti-LGBTI campaign would likely have a lasting destructive impact on the long-suffering LGBTI community and also on Australian society.

Finally, there are some other questions that arise from the referendum suggestion:

  • The legislatures of France, New Zealand, Uruguay, Spain, Portugal, Canada, and more, were capable of passing the legislation needed for same-sex marriage; what makes Australia so uniquely different that we have to make this step the hardest possible way?!
  • We didn’t hold a referendum on a lot of very significant issues on which Parliament or the Prime Minister and Cabinet of the day were quite happy to make a decision (eg. women’s right to vote, anti-discrimination legislation, the GST, the Iraq war, uranium sale to India, the carbon tax, and the list goes on), so what makes this issue so different?!

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Civil unions – decaf anyone?

As for those who argue that, as a compromise, LGBTI should settle for and be happy with civil unions or partnerships instead of marriage, I would say that such a position is nothing less than intellectual, moral, political and social cowardice. Such inferior options support and institutionalise the view held by some that same-sex relationships are somehow of lesser value than the relationships of heterosexual couples, and continue a long line of entrenched discrimination.

Put in simple terms, civil unions for same-sex couples, instead of a marriage, is a little bit like decaffeinated coffee – it has the flavour of, and it looks and smells like, the real thing but it lacks the very substance of the real thing.

Consequently, in my view the passing of Queensland’s, now effectively defunct, Civil Partnerships Act in 2011 was little substantial reason for celebration. The passing of the Act demonstrated progress in thinking on discrimination, equality and social justice which must be acknowledged. However, in reality, the Act, especially so in its current amended form, places the legal stamp of inferiority on LGBTI relationships, as being something different and lesser than a marriage.

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Relationship registers … or the truth about cats and dogs (and cars)

Finally, a mention must be made of the various ‘relationship registers’ that have been established (for example by the City of Sydney and the State of New South Wales in Australia).

While the effort is greatly appreciated, the fact is that one ‘registers’ a car, a dog or a cat … not loving, caring relationships. While I believe that such registers are established with good intentions, the fact is that they put loving, caring relationships on the same level as getting a car or a pet.

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8

If you have an hour and a half to spare, I highly recommend ‘8’, a play about the fight for marriage equality in California, US. The play features an all-star cast including George Clooney, Brad Pitt, Martin Sheen, Jamie Lee Curtis, Jane Lynch, Kevin Bacon and others.

The play is written by Academy Award winning screenwriter Dustin Lance Black and directed by acclaimed actor and director Rob Reiner. It is a powerful account of the case filed by the American Foundation for Equal Rights (AFER) in the US District Court in 2010, at an earlier stage of the legal fight, to overturn Proposition 8.

Framed around the trial’s historic closing arguments in June 2010, ‘8’ provides an intimate look of what unfolded.

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Recent US developments

For a lighter moment after that torrent of hate, homophobia and ignorance, I recommend the amusing satirical take on the conservative reaction to the SCOTUS decision, titled ‘World War G‘ at Funny Or Die.

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