"I say …that support for marriage equality by conservatives is both rational and sensible."
Nationals MLC Trevor Khan’s impassioned words captured much of the sentiment in the NSW Legislative Council last week as it debated a motion that urged the Commonwealth Parliament to legislate to allow same-sex couples to marry.
Even though the passing of this parliamentary motion (22-16) does not have legislative impetus, its cross-partisan significance should not be understated. This motion marks the first time state Coalition MPs (4 Liberals and 3 Nationals) have been able to exercise their "conscience" and commitment to liberal values to endorse marriage equality.
Opening with a liberal argument premised upon individual opportunity, Liberal Scot MacDonald MLC added that if gay and lesbian people are able to serve in the military or participate in the workforce, denying access to another social institution such as marriage, diminished the capacity of sexual minorities to participate in public life:
"We give people of all backgrounds or colour the right and the opportunity to have a productive and fulfilling life. I regard same-sex marriage as a continuation of that. That is a little of the liberal perspective."
Fellow Liberal Catherine Cusack MLC said the state should not interfere with private life. Indeed, dictating family arrangements solely on the basis of gender has the capacity to encourage "harm and hurt" for those who do not subscribe to the nuclear family norm:
"If two people have a right to marry that is a universal right, and telling one class of people that they do not have that right has the effect of destroying the right altogether."
Nationals MLC Sarah Mitchell insisted governments should not privilege one form of couple over another:
"If I did not support this motion… I would feel as though I valued my relationship above theirs. In good conscience I could not do that because I want each and every one of them to be able to experience marriage, as I have."
With the mix of sentiments outlined above, why does marriage reform still discomfort some that claim to be conservative?
For some the opposition to reform is confined to an abstract concern for children. We only need to look to the then prime minister John Howard’s comments as a bipartisan amendment was passed in 2004 to ban same-sex couples from marrying:
"Traditional marriage is one of the bedrock institutions of our society, and I don’t want anything to occur that further weakens it. Marriage as we understand it in our society is about children, having children, raising them, providing for the survival of the species."
Irrespective of what your position on the evolutionary merits of marriage or same-sex parenting are, Howard’s concern seems misdirected given that marriage under civil law does not seek to prescribe procreation nor does it regulate the legal recognition of children.
Where children actually come to matter in the law for the purposes of parentage, custody, child support and inheritance, same-sex couples with children are recognised under the Family Law Act 1975.
In NSW, major legislative reforms over the past few years have ushered comprehensive recognition in the areas of adoption, assisted reproductive technology and surrogacy. These changes to parentage legislation were also complemented by further definitional changes of "marital or domestic status" in NSW anti-discrimination laws and relationship registers to protect same-sex de facto partners in a similar way to married couples.
If conservatives were wedded to the idea that "traditional" marriage and raising children are coextensive, then logically it would make sense to allow same-sex couples with children the opportunity to do so.
Further, if marriage is perceived to be a social good that secures fidelity, monogamy and longevity in a relationship, then we must ask how exactly extending this to same-sex couples would undermine such an institution?
Conservative British Prime Minister David Cameron, who is leading the push for marriage equality in the UK, summarises the conservative case quite simply:
"And to anyone who has reservations, I say this: Yes, it’s about equality, but it’s also about something else: commitment. Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other."
Rather than a radical agenda proffered by those often colloquially referred to as "progressives" or the apparently homogenous "Left", marriage equality reform should appeal to conservative sensibilities of conjugality and citizenship.
Tim Wilson, from free-market think tank The Institute Of Public Affairs, notes:
"The legal and societal confirmation of consensual, stable relationships remains an entirely desirable public policy objective…
"From a conservative perspective significant societal change should be treated warily, especially when it is led by government. But that doesn’t justify holding back societal change and adapting when it occurs organically."
What is clear from these comments is that marriage continues to occupy a privileged position in our legal and social consciousness. Marriage is not simply about rights. It remains the fundamental means through which intimacy and citizenship is publicly legitimated and respected in this country, and many conservatives are accepting a broader view of who can participate.
Over the past decade, much has been achieved already through de facto recognition of same-sex couples in state and federal laws for the purposes of immigration, parenting, taxation, veterans’ benefits and superannuation.
Same-sex couples that are denied the opportunity to marry have to prove the existence of their relationship. This can be particularly onerous in situations where the next of kin status is contested, such as in situations of intestacy or medical emergencies.
The recent parliamentary inquiries on marriage reform have been the largest in political history, indicating that the issue is far from peripheral. In addition to a majority of Australians supporting reform, 77 per cent of Coalition voters have also expressed a preference that the issue of marriage equality to be subject to a conscience vote.
While marriage equality should certainly not be overstated as the panacea for all forms of homophobia or transphobia related prejudice, legislative proposals for broader federal anti-discrimination laws and policy measures to address systemic inequality are also underway in this parliamentary term.
NSW, despite a change in government, has demonstrated continuing leadership on a number of same-sex law reform issues. Now it is up to the Commonwealth to follow suit.
With three bills before the federal parliament to legislate for marriage equality, conservative MPs must critically reflect on whether they can conscientiously make a moral claim to promoting monogamous kinship or familial longevity, while denying that opportunity to same-sex couples.
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