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A Critical Assessment of Same-Sex Marriage in Australia

The Same Sex Marriage had been a global issue in various forms since the 1960s. There are many nations which have validated the Same Sex marriage along with the recent assurance of the Pope in the same matter. However, the issue seems to be a burning political issue in the Australian policy where the parties have various stands on the same. The social and religious taboo for the same has been addressed to a large extent, but the diversity and political stance makes it difficult to predict the actual motive of the Australian Social and political motives about the Same Sex marriage (SSM) in Australia (Bernstein and Taylor, 2013).

The social taboo regarding the same sex marriage has been a social taboo for long. However, post-1960 were the civil rights movements made these movements of LGBT community stronger and made it come to the forefront. The LGBT stands for Gays, Lesbians, Bisexuals, and Transgender which is a huge group in the society who also demands the equal civil and social rights. The very recent event of the same sex marriage demands was seen in the rally at Sydney in 10 of this Month at Sydney where thousands marched to show their demands for same sex marriage (Gerstmann, 2017).

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Background

The same sex marriage is a social taboo which the society had been dealing with since long. The idea is to make the people aware of the various psychological reasons in people who may vary from the larger social belief of established belief of opposite sex marriage. Further, the Australian law prohibits the same sex marriage by the 2004 amendments to the Marriage Act of 1961 (Sloane and Robillard, 2017). There are states in Australia which permit the same sex partners to stay together but are not open to give them the married status. The marriage gets in a lot of other legal issues like divorce which is banned in Australia to be done. Thus a great deal of discrepancy stays.

 The Globe is adopting the changes in the belief of institution of marriage but is yet to give the open support via legislation due to various pressure groups in the society. The bill for same sex marriage was put forth in the Australian Parliament in November 2016 and August 2017 which got rejected in both the cases. However, the 2009 Rudd government did a lot in making the law recognise the individual rights to save them from social harassments. However, the same sex marriage acts were not passed during that era. The Labour party openly spoke against the same sex marriage but let the secret ballot be used for individual opinion. Post the decline of the two bills in last and recent months of this year the government has embarked on a nationwide survey in September this year to get the pulse of the people before reintroducing the bill (Penn, 2017).

The Coalition government of the present day Australia is one major factor which some suggests as the barrier to the same sex marriage legislation. Nevertheless, one ray of hope is that the Federal Capital territory appealed for same sex marriage in its jurisdiction to which the High court smashed later stating its inconsistencies with the larger federal structure. In the national forums, the Labour party has started advocating the same sex marriage in the current years. The Defacto relationship is one aspect while the marriage is another which the Australian government has started to practice since 2009. The de-facto relationships make the time of staying together, the child in the marriage etc. as an important part but the legislation to give the same family rights to homosexual partners is far from true in the legislative sense (Saez, 2011). 

Analysis and Discussion

The reasons for such half-hearted approach to the legislation are due to many external and internal social and religious pressures. This is evident with the massive population of Australia who is not under the church, Protestants or Catholic. The people of other faiths like Islam takes it as a crime to see same sex marriage along with other such religion based groups making the matter more difficult to attain. The de facto is something which is extra legislative since it grants permission but not under the legal standards. Hence the adoption of the child, property rights etc. stays hung due to the lack of such legislation which grants the same sex marriage for the equal rights use for same sex partners. The distress and alienation are shown in the graph as below. The people of various sexual orientation is one of personal nature where the government legislation is supposed to enhance the rights and remove the taboo, if not fully but legally (Barker, 2012).

The distress that the people of various sexual orientation other than heterosexual orientation face a lot of social as well as legal distress. The rights to get the partner's benefits of superannuation or bereavement pay due to death of the partner only because the laws don't permit it. Nevertheless, the reports previously published that the state to state biases are distinct in Australia which means that a federal law for the Commonwealth will not be received with same enthusiasm by all stakeholders. The discrepancy and legalised aspect of heterosexual marriage is one that makes the state to state bias clear and prominent. The Queensland has leapt forward in this direction when in April 2016 it has granted the de-facto relationship- as legal for various legal formalities like child adoption, legal support for the same sex couples (Brent, 2017).

Evidences and Facts

The other states like Victoria, Tasmania, South Australia and New South Wales have gone far ahead to see through the relationships to agree upon the legal and social support needed for such LGBT community. These are however registered relationships which have no bearing as per the Australian Marriage act. This is big discrepancies which at times cause troubles for the people of such orientation due to the Commonwealth laws not being formulated yet. The need of such formulation is needed to ensure that the wellbeing of the people and their relationships. The registration of domestic partnership is one such support program, but it needs the law to make it viable fully for other all across the Australian territory (Harris, 2017).

The states in the nation recognise the partnerships but are not well attuned to the laws of the heterosexual marriage. The registration or recognition is not helping the LGBT community in claiming their rights and legal opportunities like others in the community. Since 2002 same sex partners are called domestic partners but it's not the legal term to get the partner in the absence of the other to avail those facilities due to the law not being not used in each case. The states of the Commonwealth has taken up the issue and did what was needed to be done from their part however the legislation is missing to suggest that the nation has given equal rights to all. The need for the nationwide law is needed to make the social security and protection under the law viable for the citizens with the homosexual orientation in case of marriage (Koziol, 2017).

Theories and Acts

The Centrelink has recognised the relationships for the security of the people with different sexual orientation possible under social security making the life of such people more stress-free in the past. The Domestic partnership and marriage are different in the definition of the legal status. The domestic partnership agreements have to be signed by the couple to establish the rights of other when one passes away. Further, it divides the domestic relationship into two major facets of significant and caring relationships which have different definitions again as per the laws (Johnson and Tremblay, 2016). It may help a few but in a whole; it keeps the ambiguity on till the Commonwealth laws are not amended. The ambiguity of relationship in such case can only be laid off if the laws are amended to give similar rights to all, irrespective of their sexual orientation. The problem stays where the mutual domestic relationships are not recognised or documented by the partners in a court of law as per the provisions’ of the respective states.

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The ambiguity stays and is often misused to keep the partner away from the social benefits as is for the people enjoying the Family Law act or Marriage act. The labour legislators have been pushing for it, but the decree was defeated in the National Assembly making the law unmade or amended. This in the recent past of Australian politics had been an issue of turmoil where the religion, social stigma as well as majoritarian views had a large role to play. The Liberal party also did submit their views and legislation before the senate, but that too got cancelled post voting (Chamie and Mirkin, 2011). Thus the government with the Postal services has taken up the survey process to let people actively show their point of view in this matter where the voting via email starts by 12th September and ends on 7th of October. However, the independent candidates wish to challenge this postal voting in the high courts (Foster, 2015).

The House of Representatives in the Australia remains highly divided in among themselves about the same sex marriage rights of the homosexual community. The federal parliament has seen a major overhaul where the parliament openly supports the same sex marriage stating the examples of other nations in the globe. However, the bill of the amendment in the Marriage Act has fallen flat on many occasions. It is to provide the people with their desired rights and liberty (Sherkat et al., 2010). The highly divided Parliament is one major cause, but the ray of hope is that this would see the amendment to grant the LGBT Community more freedom and rights in the Australian laws. The 2004 addition of the definition of marriage in the 1961 act makes it mandatory for the people to recognise the opposite sex marriage as the only legal marriage. This union of a man and woman in marriage is regarded as the only provision under the law to be considered as marriage legally (Corvino and Gallagher, 2012).

Conclusion

The states have taken its steps to legalise the same sex relationships but not marriage as it has fallen flat in the high court due to the Commonwealth laws of the Federation. The survey mechanism which is challenged is the only way to get an overview of what the people in the Nation thinks about the same sex marriage. The absolute power of marriage or its benefits as per the union laws are thus out of the picture in case of legal disputes settlements in Australia due to the amendments not have been done in the marriage Act of 1961. The government is thus looking at the same sex marriage as a non-legal issue when it comes for a judicial scrutiny in Australia (Massola, 2017).

The globe is changing fast, and the taboos of the past are crossed with scientific evidence and public pressure. The states of Australia have taken their steps, but those are not enough to suggest that it may stand the scrutiny of time and place. The statutory ban on same sex marriage thus exists in the Australian laws which are repressive and needs to be done away with. The survey mechanism is a good way in spite of the opposition as the people get a chance to express the opinion which would create pressure on the people there for legislative decision making (Lau, 2012). The state based marriage equality needs a federal approval via amendment of the laws to make the same sex marriage be given a place in the Australian society with legal and social supports. The people suffering from the social and legal stress may get a way out in such a case where the laws are made irrespective of sexual preferences. The figure which depicts the state of the people’s stress regarding stress and social alienation among the LGBT community (Walls, 2010). The legislation would also help them have equal rights and social support in the nation, which seems not very far away.

References

  1. Barker, N. (2012). Not the marrying kind: A feminist critique of same-sex marriage. Palgrave Macmillan.
  2. Bernstein, M. and Taylor, V. (2013). The Marrying Kind?: Debating Same-Sex Marriage within the Lesbian and Gay Movement. University of Minnesota Press.
  3. Brent, P. (2017). Marriage equality's secret weapon. Inside Story.
  4. Chamie, J. and Mirkin, B. (2011). Same‐Sex Marriage: A New Social Phenomenon. Population and Development Review37(3), pp.529-551.
  5. Corvino, J., and Gallagher, M. (2012). Debating same-sex marriage. OUP USA.
  6. Foster, N. (2015). How Should Religious Marriage Celebrants Respond If Same Sex Marriage Is Introduced in Australia?. SSRN Electronic Journal, 111(4).
  7. Gerstmann, E. (2017). Same-sex Marriage and the Constitution. Cambridge University Press.
  8. Harris, B. (2017). Human Rights and the Same-Sex Marriage Debate in Australia. Journal of Politics and Law, 10(4), p.60.
  9. Johnson, C. and Tremblay, M. (2016). Comparing Same-Sex Marriage in Australia and Canada: Institutions and Political Will. Government and Opposition, pp.1-28.
  10. Koziol, M. (2017). Turnbull government 'won't be bullied' by CEOs on same-sex marriage, says Peter Dutton. [online] The Age. Available at: http://www.theage.com.au/federal-politics/political-news/turnbull-government-wont-be-bullied-by-ceos-on-samesex-marriage-says-peter-dutton-20170318-gv11uh.html [Accessed 11 Sep. 2017].
  11. Lau, C.Q. (2012). The stability of same‐sex cohabitation, different‐sex cohabitation, and marriage. Journal of Marriage and Family74(5), pp.973-988.
  12. Massola, J. (2017). Foreign Affairs Minister Julie Bishop lends support to same-sex marriage. [online] The Sydney Morning Herald. Available at: http://www.smh.com.au/federal-politics/political-news/foreign-affairs-minister-julie-bishop-endorses-samesex-marriage-20151102-gkp36a.html [Accessed 11 Sep. 2017].
  13. Penn, A. (2017). Renewing our active position on marriage equality | Telstra Exchange. [online] Telstra Exchange. Available at: https://exchange.telstra.com.au/marriage-equality/ [Accessed 11 Sep. 2017].
  14. Saez, M. (2011). Same-Sex Marriage, Same-Sex Cohabitation, and Same-Sex Families Around the World: Why ‘Same’is so Different?.
  15. Sherkat, D.E., De Vries, K.M. and Creek, S. (2010). Race, religion, and opposition to same‐sex marriage. Social Science Quarterly91(1), pp.80-98.
  16. Sloane, J. and Robillard, L. (2017). Factors Affecting Heterosexual Attitudes to Same-Sex Marriage in Australia. Sexuality Research and Social Policy.
  17. Walls, N.E. (2010). Religion and support for same-sex marriage: Implications from the literature. Journal of Gay & Lesbian Social Services22(1-2), pp.112-131.

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