Marriage equality in Australia
In the early twenty-first century, there was a world-wide movement to achieve marriage equality for same-sex couples. The aim of this movement was to afford same-sex couples the same marital rights as heterosexual couples. This movement has largely been successful, with same-sex couples gaining marriage equality in much of the world.
The path to marriage equality in Australia was far from smooth. In the early 2000s, legislators took active steps to change the law to prevent recognition of same-sex marriage. It was only with an increasing public support for recognition between 2004 and 2017 that the momentum for change culminated in legislative amendment.
Australia legalised same-sex marriage on 9 December 2017 with the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). Six days later, Australia saw the first wedding ceremonies legalising the union of same-sex couples.
This article looks at the history of the marriage equality movement in Australia and its implications for gay, lesbian and transgender people in 2022.
History and Evolution of Same-Sex Marriage
Marriage Act 1961
The federal Marriage Act 1961 governs marriage in Australia. The Commonwealth has the power to make laws in relation to marriage under the Australian Constitution. This means that federal legislation overrules any state or territory law about marriage. This constitutional power does not extend to the power to make laws in relation to de facto couples. The Commonwealth only has the power to make such laws when the power to do so is referred by the various states.
The debate about marriage equality focused strongly on the wording of the federal Marriage Act. Historically, the Marriage Act did not define the institution of marriage. It was only in 2004 that the Howard Government amended the law to define marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. The purpose of this amendment was to prevent recognition of overseas same-sex marriages and preempt any Australian challenge for marriage equality.
Between 2004 and 2017, various members of parliament introduced more than twenty bills seeking to legalise same-sex marriage. Each attempt failed, with successive Labor and Liberal federal governments failing to lend sufficient support to the marriage equality movement. The resistance to legalising same-sex marriage at the federal level was not merely a passive failure to take action. It was a proactive attempt to prevent any recognition of same-sex marriage. The federal government’s actions precluded Australian states or territories from legalising same-sex marriage in their jurisdictions. For instance, in 2013, the High Court struck down an Australian Capital Territory law legalising same-sex marriage, because of the supremacy of the federal Marriage Act.
By 2015, public sentiment had grown increasingly in favour of same-sex marriage. This sentiment was seen in public opinion polls, which began to show that more than half the population was in favour of marriage equality. In response, the Turnbull Government raised a bill to allow for a popular vote on the topic either as a plebiscite or a constitutional referendum. A plebiscite is a popular vote on a topic that does not have any legal force. A plebiscite is used to determine what the public think about an issue, but the result does not force the government to take any particular action. A constitutional referendum, on the other hand, is a formal vote to change the terms of the Australian Constitution. To achieve a constitutional change, the change must be passed by a majority of voters across the country, as well as a majority of votes in a majority of states. A government is bound by the result of a referendum and must change the constitution according to the will of the people. The Turnbull Government bill seeking authority to put a plebiscite or referendum to the people on marriage equality was rejected in the Senate, and a second, similar bill was rejected two years later.
In 2017, the Turnbull Government directed the Australian Statistician to conduct a postal survey of Australian voters. This approach avoided the need for Senate approval of the vote. The survey was held between 12 September and 7 November of that year. The survey asked: “Should the law be changed to allow same-sex couples to marry?” More than 12.7 million responses were returned, of which 61.6% answered “Yes”.
Following this result, Senator Dean Smith introduced the Marriage Amendment (Definition and Religious Freedoms) Act 2017. It amended Section 5 of the Marriage Act to define marriage in Australia as the union of “two people”. The bill passed the Senate by 43 votes to 12 and the House of Representatives by a vote of 131 to 4 (with 11 abstentions). The bill received royal assent on 8 December 2017 and went into effect the following day.
De Facto Recognition
Before the introduction of same-sex marriage in Australia, same-sex couples did have some legal recognition. For instance, in the 1990s, a same-sex partner of an Australian citizen had a pathway to residency through an “interdependency visas”. However, the major means of recognition for same-sex couples was as de facto partners.
Growing recognition of de facto relationships provided same-sex couples with increased access to legal protections. In 2008, the Rudd Government introduced the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act. This legislation amended seventy federal laws to protect the legal rights of de facto couples and prevent discrimination against same-sex couples and their children. These were important changes for all de facto couples, not just those who were same sex. From the early 2000s most states and territories also allowed de facto couples to register their relationships. The states and territories were able to create this opportunity because the Commonwealth did not have the exclusive power to make laws for de facto couples.
Opponents of gay marriage argued that this recognition of de facto relationships provided gay and lesbian people with sufficient legal recognition. Although same-sex couples did have access to significant legal recognition as de facto couples, they still faced a battle to receive the recognition automatically accorded to married heterosexual couples. Moreover, heterosexual de facto couples chose to be de facto rather than married: same-sex couples did not have the right to make that choice. Supporters of marriage equality argued that same-sex couples should not be subject to a separate system. They argued that same-sex couples should have the same right to participate in marriage, a major institution of modern Australian society. Supporters argued that only the legalisation of same-sex marriage was sufficient to recognise the human rights of LGBTI peoples.
Moreover, there were important differences between the recognition accorded to a married couple and a de facto couple. For instance, a de facto partner has to prove their relationship, usually by establishing that it has existed for at least two years or there is a child of the relationship. In contrast, a married couple only needs to present a marriage certificate to access marital rights and privilege. This meant that in case of accident or emergency, a de facto partner would have to produce documentation. A de facto partner would have greater difficulty accessing government bereavement payments, superannuation and inheritances. There was numerous cases of long-term de facto partners being involved in drawn-out litigation with the family of their deceased partner in an effort to be accorded fair recognition.
Changing Attitudes to Sexuality and Gender
The marriage equality debate has reflected changing attitudes to sexuality and gender in broader society. Where once the categories of “male” and “female” were fixed and constant, there is now a wider recognition that gender is a social construct. Today, there is both legal and community acceptance of sexual identities beyond gay and straight, and other gender identities, such as transgender, transexual and intersex.
Even before the legalisation of same-sex marriage in Australia, transexual people could marry according to their true gender, instead of their assigned birth gender. In the landmark case of Re Kevin – validity of marriage of transsexual (2001),the Federal Circuit and Family Court of Australia recognised the right of a transgender man to legally marry a woman.
Despite this early recognition, some historic laws still pose impediments to transexual, transgender and intersex individuals. For instance, until 2018, most Australian states and territories still required a person to divorce their current spouse before they could change their gender on their birth certificate. This was the case even if both spouses wished to remain married.
Because of this law, in 2006 the Foreign Affairs Department refused a passport to a transgender woman. The rationale for the refusal was a mismatch between the gender on the passport application and the woman’s birth certificate. The transgender woman could not apply to change the gender on her birth certificate unless she divorced her wife, which she did not wish to do. On appeal the Administrative Appeals Tribunal overturned the DFA’s decision in 2007. As a result, the Tribunal effectively recognised the validity of a marriage between two Australian women, at least for the purposes of obtaining a passport. This happened a full decade before same-sex marriage was legally recognised in Australia.
The federal government eventually introduced legislation to prohibit states and territories from imposing the divorce requirement on transgender people as a condition of changing the gender on their birth certificates.
The Public Debate
Polls show that Australian public support for marriage equality has steadily increased since the early 2000s. In a 2004 Newspoll poll, just 38% of Australian respondents supported same-sex marriage. 44% of respondents opposed the introduction of same-sex marriage in Australia and 18% were undecided. Only a few years later, a Galaxy Research poll found that public support for same-sex marriage had increased to 57% of respondents. Slightly fewer people were opposed (37%, as compared to 44%). There was a significant difference in the number who were unsure (6% compared to 18%), perhaps reflecting the growing public awareness of the debate.
Public support for same-sex marriage continued to rise steadily in the next few years. By 2009 support had reached 60%, with opposition holding steady at 36%, and the number of undecided reduced further to 4%. An October 2010 poll commissioned by the Australian Marriage Equality Organisation found that 62% were in support, 33% opposed, and 5% undecided. The following year, a Roy Morgan Research poll found that 68% of Australians supported same-sex marriage.
By 2014, an Australian Marriage Equality commissioned poll found that 72% of Australians supported the legalisation of same-sex marriage. This poll was notable in that the majority of supporters were aged over 55 and identified as Catholic or as belonging to another major religion. This poll was seen as reflecting a seismic shift in Australia’s stance on marriage equality, especially amongst those who might have been expected to hold traditional values.
In 2017, The Australian Bureau of Statistics commenced the Australian Marriage Law Postal Survey. This survey showed that a majority (61.6%) of Australians supported same-sex marriage. The voluntary survey drew a surprisingly large response (79.5% of those polled), demonstrating the engagement of the Australian public in the marriage equality debate.
Today, public support for same-sex marriage in Australia is strong but still remains far from universal.
What about the children?
Public campaigns against same-sex marriage prior to the change in legislation often focused on the best interests of children. These campaigns argued that based on scientific research, children were better off raised by a mother and father instead of same-sex parents. In fact, there is no clear evidence that children have better outcomes if they are raised by a heterosexual couple.
A 2014 survey of 10 years’ of scientific literature concluded that children raised by same-sex parents performed as well as children of heterosexual couples. The children’s performance was measured against academic performance and cognitive, psychological and social development measures. Similarly, a 2016 study by the US National Survey of Children’s Health compared outcomes for 190 children, half raised by heterosexual couples, the other half by female same-sex couples. The outcomes showed no difference in health, learning and personal wellbeing.
The Australian Study of Child Health in Same-Sex Families surveyed 500 children, 80% raised by female same-sex parents and 18% by male same-sex parents. The study did indicate that children experience some social stigma from their parent’s sexual orientation, with some mental health impacts on the children. Overall, however, the study found these children fared as well as the children of heterosexual parents on all important measures.
The overwhelming balance of research suggests that factors such as the family’s stability and socio-economic status have far greater impact on the development and well-being of children than the gender or sexuality of parents.
More Countries Allowing Same Sex Marriage
There are records of same-sex marriage as far back at the first century AD, but in the modern era the Netherlands was the first country to legalise same-sex marriage. This occurred in 2001, at the beginning of a period of intense focus on marriage equality across the globe.
Today, many countries across the world have embraced marriage equality. Switzerland will become the thirty-first country to legalise same-sex marriage in July 2022.
In contrast, another thirty-four countries across the world explicitly prohibit same-sex marriage in their constitutions. In a number of these countries (notably those governed by Sharia laws) homosexuality itself is illegal.
Here For You
Here at Unified Lawyers, we are very familiar with family matters involving same-sex couples. We welcome the opportunity to help you in any way, whether drafting binding financial agreements, divorce, adoption, parenting or property division matters. Please call 1300 667 461 today for experienced legal advice.