The Current Policy Regarding Homosexual Marriage Law Family Essay

Published Date: 02 Nov 2017

Krystal Alexander

University of Ballarat

Current issues and policies

In the past homosexual behaviour was perceived to be a criminal act as well as a mental health issue (Beard, 2005). This perception of homosexuality has been a long and rocky road to get past and within the past few decades has adjusted. Within Australia all states have created discrimination laws that have now banned discrimination in regards to aspects such as sexual orientation (Beard, 2005). This was originated due to the gay rights movement in the late 60s (Edwards, 2009).

The discrimination laws however did not prevent the federal government amending the Commonwealth Marriage Act 1961, in 2004 (Struck, 2005). The adjustments that were made at this time ensured that people of a particular sexuality do not have the same rights as those of heterosexual tendencies and so are treated unequally (Beard, 2005). The government has the ability to do this however under the Constitution. The Marriage Act originally did not define marriage in any way (Beard, 2005). That has changed with the Marriage Amendment Bill 2004 which defines the term marriage as. "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life" (Beard, 2005, p. 3.). This includes not recognizing same sex marriages performed under the laws of another country (Struck, 2005).

The Australian Bureau of Statistics calculated that almost 19,000 same sex couples are registered (statistics, 2011). This statistic demonstrates that there are many couples that are same sex and at least living together that does not have the sane right as heterosexual couples.

Another issue raised in regards to homosexuals unable to marry is that these couples are not entitled to the same benefits and assistance as married couples, even if they have been partnered for some time (Beard, 2005). In one scenario a partner to a Second World War veteran who had been with him for 38 years was denied a widows pension because it was not lawful under the Veterans Entitlement Act 1986. This is because he did not fit into the criteria as he was not married to or a heterosexual de facto spouse of the deceased (Beard, 2005).

Under the law, de facto partners are different to married couples. If a de facto attempts to receive their partner’s estate upon their death, a list of factors must be met, which the courts use to decide if their relationship meets the bar (Lynch, Unknown). These factors may incorporate evidence as to where the couple lived, their sex life and their level of financial dependence (Lynch, Unknown). Homosexuals are able to declare de facto partnership but are unable to be legally married in Australia.

In other places in the world gay marriage is legal. Countries that have legalized this move between the years of 2001 and 2010 are: The Spain, Canada, Netherlands, South Africa, Belgium, Sweden, Norway, Portugal, Iceland, Argentina (Sullivan, 2012). The Parliament of The Netherlands, was the first country to pass a bill of legalizing gay marriage by a 3-to-1 margin in 2001. Within eight nations however laws are still pending, including Finland and Australia, in recognition of civil unions or some form of gay partnerships (Sullivan, 2012). These laws have at least been legalised in more than 20 countries (Sullivan, 2012). In America, President Obamma supports legalizing gay marriage (Sullivan, 2012). His comments that were made created a large debate in both political and cultural areas.

Viewpoints

Religion has always been perceived to be a center part of marriage. The Catholic Church opposes gay marriage and is very strict in regards to the social acceptance of same-sex relationships. The church does however recognise and teach everyone that homosexual persons do still deserve a level of respect, justice and care (Unknown, 2003). Within the church a belief stands that "marriage is a faithful, exclusive and lifelong union between one man and one woman, joined as husband and wife in an intimate partnership of life and love," (Unknown, 2003, p 1). A Catholic committee’s belief is that the importance of marriage for children as well as society is under attack due to an ignorance in the essential role of marriage and by promoting equivalence between marriage and homosexual relationships (Unknown, 2003). This is in controversy due to the concept of marriage in Christian history not always being an exclusively heterosexual institution. Up until the fourteenth century there was no legalized bared over who could or couldn’t get married (Beard, 2005). These days many men begin in heterosexual marriages before coming out due to social pressures which was the original aspect that prevented homosexuals from marrying (Robinson, 2012).

This previous information however did not prevent the Government from changing policies in 2004. The Federal Government emphasised that the Parliament needed to create these amendments due to their being a public expressions of concern about the erosion of the institution of marriage (Beard, 2005). Mr Ruddock also states: "The Government believes marriage is a central and fundamental institution in our society and provides the best environment for the raising of children (media release by Attorney General Phillip Ruddock on 13 August 2004 was entitled "Government Strengthens Marriage Act as cited in Beard, 2005).

Another opinion is that the Marriage Act grants a civic democratic right (Beard, 2005). Due to marriage being just that, a civic right, it should be able to be entered into by all couples who wish to be married, and not be influenced by religious beliefs. President Obama believes that same-sex marriage should be legal (Sullivan, 2012). He emphasizes that it is important to confirm that he himself believes this because he recognises that if heterosexual couples can have children and succeed that homosexual community should be able to have this too (Sullivan, 2012).

Strategies

One strategy is to allow homosexual marriage but only under certain conditions (Richardson, 2012). Same-sex marriage should be introduced within Australian to assist in getting rid of the inequalities that exist between lesbian, gay, bisexual and transgender citizens compared to that of heterosexual. A common method to justifying this is through a formal recognition of normalizing these individuals (Richardson, 2012).

Tasmania was the first state in Australia to recognise homosexual relationships. Its Relationships Act 2003 was the first piece of Australian legislation to formally recognise these relationships and allowed Tasmanian residents to register a partnership (Richardson, 2012). These unions were however, not recognised in any other Australian State. Following this move by Tasmania, recognition of same-sex civil unions/registered partnerships has now been implemented by Victoria, the Australian Capital Territory, New South Wales, and Queensland (Richardson, 2012 and Neilson, 2012). From this Tasmania has had a Same Sex Marriage Bill in 2005 as well as two other corresponding Bills entered into its state parliament in regards to the making, same sex marriages legal (Beard, 2005).

Going back to a Federal level however we can identify that both different-sex and same-sex de facto relationship recognition became formally equal from the period of 2008 (Richardson, 2012). It has been identified as official Greens and Australian Labor Party policy to support the equality of the marriage Act (Richardson, 2012). This support however has not been demonstrated as fully as promised as the marriage act has not been readjusted.

Policy cycle

It can be identified has already being through the entire policy procedure previously. For the amendment to have occured to the Marriage Act in 2004 the Bill was put through all stages. It was first identified as an issue, then the current policy at that time was assessed, consultation and cooperation accord in regards to what should or shouldn’t be changed, a final decision was thought out as to what should be done and finally the policy was implemented.

After the implementation of the adjustment in the Marriage Act no evaluation was done to determine if this was an appropriate move. This has now caused a conflict in regards to if this should have occurred. This has meant that there are now more Bills in lingo that are in regards to readjusting the Marriage Act again to re-include homosexuals as they were never explicitly left out.

This new assessment of the amendment is sitting in between stages two and three. Parliament has to now define the relevant policy, which is the Marriage Act and analyse context in which it exists. These contexts may include social and institutional aspects. It is important that they also define any impacts that the policy may have within Australia. What are the ramifications of re adjusting the Marriage Act again. Need to look at the benefits as well as the cons in this regard as well. It also needs to be identified if the policy holds any costs and financing issues. In this scenario however, there are not major financial costs to the Government in adjusting the Act again. Lastly they need to explore the policy options. These include local and international, past and present policies. The government needs to look at the affects the amendment had and what other countries are also now doing in regards to their policies. Have there been any recognised downfalls to allowing homosexual marriages, and what have the benefits been. The government is still trying to get all this information together but they are also at stage three to some degree in regards to consultation and coordination. They have begun consulting with a somewhat broad range of people as the opinions of the Australian public are impacting them somewhat. They need to be aware of the public’s viewpoint as some can provide useful knowledge. By asking the public what they want the government is allowing some voices to be heard that act as a vehicle for gaining support for accepting the proposal of changing the Marriage Act. Lastly the coordination processes between the different levels of government need to be included in the process. Seeing as some states brought in the recognition of de facto relationships of homosexuals before it was legalised by the whole of Australia, this coordination process may be slightly broken, however if any decision in this manner is to occur in Australia all governments need to come together to be on the same page to avoid more controversy.