Comment: Marriage equality needs to come from Parliament, not the courts

AGORA moderator's picture

Momentum for allowing same-sex marriage has been building and now it's time to calmly get the law right.

Allowing the Parliament to methodically consider marriage reform is in the best interests of those who want same-sex couples afforded equality before the law.

After the Irish referendum last week there has been a spontaneous flurry of activity for Australia to follow suit.

The Irish vote was significant because it was the first democratic nation that voted on the issue. It was also significant because the yes vote bucked Ireland's traditional cultural and religious heritage.

More importantly the Irish vote showed how far the issue has come. Twenty years ago, the issue of same-sex couples seeking marriage was not a matter of public debate. Today it is a mainstream issue and enjoys mainstream support.

Momentum for change has been building slowly for many years. The Irish vote was significant. But it is unlikely to be the only catalyst. In only a few weeks the US Supreme Court is set to decide on the case of Obergefell v Hodges.

In the US marriage is regulated at a state level, not at a national level, like Australia.

Obergefell v Hodges is testing whether a marriage between a same-sex couple in one state must be recognised in another state. The case is also testing whether the 14th amendment to the US constitution that requires the "equal protection of all laws" to citizens requires marriage to be extended to same-sex couples in all states.

In previous decisions the Supreme Court has regularly recognised marriage as a fundamental right to fulfil each individual's pursuit of happiness.

A decision on Obergefell v Hodges is expected in the second half of June, however it is widely expected that the court will strike down bans on same-sex marriage.

Should the court overturn state bans on marriages for same-sex couples it would further intensify debate in Australia and solidify the view among many that the issue should be dealt with swiftly.

The trade-off from courts, not Parliament, recognising marriage for same-sex couples is that the decision may remain controversial and lack legitimacy among some people into the future.

Allowing the Parliament to slowly and methodically navigate reform helps avoid the same fate in Australia. In the Western liberal democratic tradition it is the role of Parliament to primarily protect rights.

On Wednesday Prime Minister, Tony Abbott, committed to fulfilling his promise at the last federal election for the Liberal Party to have a discussion on whether a non-binding free vote would be granted to all MPs. Mr Abbott also stated: "If our Parliament were to make a big decision on a matter such as this, it ought to be owned by the Parliament and not any particular party".

The implication in the Prime Minister's statement is that any bill would require cross-party sponsorship, and preferably be sponsored by a government MP.

If a bill is going to pass in this Parliament bipartisanship is necessary. In both major political parties there remain advocates for, and opponents against, change. No party has enough MPs to get any bill on this issue through the House of Representatives and the Senate.

Having a bill pass the Parliament with cross-party support is also enormously beneficial for political legitimacy. The more the debate is fought on party lines the harder it is to get reform, and the harder it may make any future attempt at passage should the current attempt fail.

It's also important to have cross-party support to ensure the tone of the debate is civil. As Labor MP Tony Burke argued this week the debate is "becoming harsher and angrier ... from both sides".

Mr Burke is right. Those that argue against change are not automatically bigots, and it is bigoted to indiscriminately tar everyone opposed to change with that brush.

Those that argue for change are equally not interested in destroying family values, in fact they're fighting to value 21st-century families.

The liberal human rights principle of equality before the law clearly justifies favouring a change in the law.

Securing a definitive and final recognition of marriage for same-sex couples requires giving the Parliament and MPs the breathing room to consider and approve a bill that crosses party lines.

Slow deliberation won't satisfy the impatient; but considering much of human history has involved the use of law to stigmatise and demonise same-sex attracted people the significance of the moment should not be lost. The importance of calmly getting the law right to end this trend is more important than speed.

By Tim Wilson (Human Rights Commissioner)

SOURCE: Sydney Morning Herald, 28/05/2015,