Rodney Croome . gay advocate

"Separate and unequal"

For all its rancour, Sunday night's forum on state same-sex marriage legislation in Sydney was proof of the issue's power to provoke debate and catalyse change.

There is no room in the press for mixed feelings. A single event demands a single response. "But" isn’t a word, it’s a paragraph, a paragraph a sub-editor will delete.

That’s why my response to the queer press about Sunday night’s rowdy forum in Sydney on state same-sex marriage legislation is that it was a relief to have differences over the issue aired (here's my address to the forum).

I say "relief" because the forum’s polarisation about process and strategy, about how the LGBT human rights movement achieved legal and social change, has been simmering below the surface for a decade.

This unacknowledged polarisation has stymied every attempt activists from different states have made to work together, despite their shared goal of equality. Now it’s out in the open we can finally discuss it.

What these differences are and how they relate to the push for state same-sex marriage I’ll come to in a minute.

But first back to those mixed feelings.

Indignation was the least of them, and I’m glad because it’s a selfish emotion, in the end little more than an attempt to protect your ego from attack.

"Nick McKim and I are guest at this forum and in this city", I thought. "It’s rude to interrupt and shout at guests."

I felt the same last year when I was shouted down at a community event I was invited to speak at in Melbourne (is it a coincidence that I’d been invited to talk about marriage reform there too?).

But being an easy target for angst that has nothing to do with me is something I’ve learnt to live with. Nick’s the same. We’ll survive.

Apprehension: that’s taking longer to fade.

I’m apprehensive about the future of the LGBT community and the country when jeering is an accepted political tactic.

Sure I joked to friends after the meeting about the inherent riotousness of Sydney politics, the Rum Corps and all that. But when I read about John Bolton's nomination for US UN Ambassador what I see is bullying and payback elevated to a political virtue.

The frustration that many social progressives feel about the hard right’s ascendency is transforming into mimicry of its rude, crude, mean, whatever-it-takes (lack of) principle.

I’m not saying the anger of the critics of state same-sex marriage legislation wasn’t authentic. Just that the way it was expressed conforms with today’s dangerous, puerile dictum that losing your temper is a sign and source of strength.

But all this is nothing next to my sadness.

The day after the forum I gave a two hour lecture followed by questions and discussion at UNSW about LGBT rights and social change. Many of the issues raised the night before came up here too.

No-one shouted, huffed or slurred. We quickly got down to the assumptions which underlie approaches to change, the different conditions under which different strategies work or don’t work - all the important stuff. "If only we do this in the LGBT community", I sighed to myself afterwards.

Sure it was an academic environment not a political one. But the difference I’m illustrating isn’t just about headspace. It’s about how much space we have in our hearts.

My address to the UN Youth Association on Saturday night sparked a thoughtful debate about the UN and Tasmania.

Those young people profoundly believe in the values the UN stands for. They love their island home and want the best for it.

But their hearts are big enough to contain the knowledge that both the UN and Tasmania are deeply flawed. They weren’t defensive, derisive or cynical.

They had found a way to embrace both high ideals and those who undermine these ideals.

Their ability to do this set me thinking about the late Tasmanian Premier, Jim Bacon.

Bacon’s heart was big enough to imagine great things for Tasmania, and to inspire others with his vision. But it wasn’t big enough to accommodate the inertia or opposition of others.

As his Premiership proceeded he shouted, berated, threatened and huffed ever more often. If he hadn’t died early of cancer he may have been consumed instead by bitterness.

At Sunday night’s forum the sound of hearts shrinking was louder than any shouting.

Until LGBT community leaders can model tolerance and compassion, until we can all honour both our deepest aspirations and those who oppose them, we will continue to shout and huff unheeded on the margins of history.

Now back to the issues at hand.

***

A large number of concerns were raised at Sunday’s forum about state same-sex marriage legislation. Let’s have a look at them, and the different approaches to legal and social change they point to.


~ "Separate and unequal"

This catch cry is a reference to the fact that state same-sex marriage legislation is only for same-sex couples, and that it only applies to state, and not federal, law.

State same-sex marriage legislation only applies to same-sex couples because the states cannot legislate for different-sex marriage. If they did they would be duplicating federal law and that would be unconstitutional.

It only applies to state law for the same reason. If the states sought to legislate in areas of law under federal control, like income tax, social security and the military, they would be exceeding their constitutional powers.

So do these constitutional limits on the scope of state same-sex marriage law make it a waste of time?

There are plenty of areas in which same-sex couples have rights at a state level but not federally.

In most states same-sex couples have many of the same rights as heterosexual de facto couples. In federal law they have virtually none.

In state law LGBT people are protected from discrimination in employment, housing and education. In federal law there are hardly any such protections.

Does this mean we are being treated "unequally" and that we should not have fought for state reform?

Of course not. State reform has been important in itself, and sooner or later the disparity between state and federal laws will force reform of the latter.

But what about attacks on state same-sex marriage legislation as "separate".

Civil union schemes in Britain, New Zealand, Denmark, France, Vermont, Tasmania and numerous other places can be accused of the same thing.

They give same-sex couples the opportunity to register for the same rights as married couples, without allowing them to call their union "marriage".

There are also other examples where the nexus of Australian federal and state law means same-sex couples are dealt with "separately".

The most obvious is that under state de facto relationship laws different-sex couples can access the federal Family Court to settle property and custody disputes, but same-sex couples have to resolve their disputes in the state Supreme Court.

Again the question is, should we not support state de facto relationship equality because when these relationships end different and same-sex couples are streamed into separate courts?

No, we continue to fight the discrimination in federal law that makes this necessary.

Given these examples, I don't accept that the "separate and unequal" argument is fair. But even those who believe it is, have to concede that the separation and inequality that comes with state same-sex marriage law is nothing compared to how separate and unequal LGBT people are under the law now.


~ State marriage equality is a symbolic reform with no material benefits

Opponents of state same-sex marriage legislation claim that it’s a waste of time because there are no immediate, practical or material benefits.

In those states like NSW where same-sex couples are still denied important spousal rights, marriage would bring these rights automatically.

But for the sake of argument let’s assume that same-sex couples could access these rights through the equalisation of de facto laws in every state, something I admit is more likely to occur before states enact same-sex marriage legislation.

In this situation would state same-sex marriage legislation be purely symbolic and therefore somehow superfluous?

The comparison critics of same-sex marriage legislation make is with say superannuation reform that will ease the financial burden on same-sex couples, or parenting reform that will provide parents and children with emotional and legal security.

I think a better comparison is with the reform of age of consent laws so that young gay men are treated equally, or, for that matter, the decriminalisation of all consenting, private, adult gay sex.

What were the material benefits of fighting for either of these reforms at a time when no gay men were actually being gaoled?

Were those laws purely symbolic and campaigns to change them a waste of time?

Of course not.

The reason for decriminalising adult gay sex was to remove the stigma that criminal status lumbered gay men with.

It was to remove a barrier to better public policy, better health programs, less discrimination, less violence.

They are precisely the benefits - de-stigmatisation, less governmental and social bias - that will flow from same-sex marriage.

Call these benefits symbolic or material, but either way they are very real.


~ We should be campaigning for federal marriage reform instead

It’s been nine months since the federal same-sex marriage ban was passed.

Have you heard or seen any serious discussion about the issue in the broadsheets or on TV chat shows?

Has any LGBT organisation been successful in convincing one federal MP to change their mind on marriage equality, or one mainstream non-government organisation to issue a statement of support for reform?

No, because the issue’s dead and no-one’s listening.

The only way to re-ignite debate on same-sex marriage in Australia, including the most important goal of equality in the Commonwealth Marriage Act, is to flag the power of the states to enact same-sex marriage laws.

Campaigning for state marriage equality isn’t a distraction from federal reform, it’s a step towards it.

The media coverage of the issue over the passed three weeks is all the evidence I need for this argument.


~ State same-sex laws will be difficult to pass, easily over ridden, and even if they are passed and not over ridden, their legitimacy will be contested in the High Court.

Yes, yes, yes.

So?

Should we not campaign for national sexuality and gender anti-discrimination laws because these laws have proven very difficult to achieve and already have equivalents in every state and territory?

Should the Keating Government not have passed the Human Rights (Sexual Conduct) Act in an attempt to over ride Tasmania’s former anti-gay laws because some states threatened to contest this law in the High Court?

Should the Northern Territory not have passed euthanasia laws because the Commonwealth intended to over ride them? Should the ACT not have passed same-sex couple adoption laws because the Commonwealth threatened to over ride them?

Sometimes law reform is right and necessary regardless of how long it takes, and how many enemies it accumulates along the way.

Indeed, the most important reforms often are the hardest to achieve.

The struggle for marriage equality in the US, Canada and Spain is raising up and bringing down governments, it is fracturing entire societies, and it is demanding untold sacrifices from those at the forefront of change.

Are we Australians about to baulk at a few legislative and judicial show downs?

I say, if it is to be a long drawn out process, fine. At least then the nation will have ample opportunity to discuss what marriage equality means, and come to accept the need for change.


~ Proposed state same-sex marriage legislation is poorly drafted, half-baked, homophobic and its constitutionality is contested.

Four lawyers were involved in the drafting of the Tasmanian Same-Sex marriage Bills. They were a mix of academics and court room advocates. Their combined legal expertise is unimpeachable.

There were several issues they, the Greens and the Tasmanian Gay and Lesbian Rights Group had to make policy decisions on. For example should state same-sex marriage laws rely on the Supreme Court to handle divorce proceedings or should a state Family Court be created. We went with the former, in the knowledge that these policy issues can be debated when the legislation is subject to a public inquiry.

As stated already, state same-sex marriage legislation cannot impinge on federal law if it is to be constitutional. This means if there is a potential conflict the state law must defer. For example, under state same-sex marriage legislation, a state same-sex marriages is automatically nullified if one party to that marriage then marries under federal law. The drafters of the legislation were not demeaning same-sex couples by inserting this clause. They are not "homophobic". They are simply acknowledging the reality that federal law prevails and that unfortunately it is homophobic.

Some critics believe that state same-sex marriage legislation should not be introduced until all the various views on its constitutionality have been sought out and aired.

Debate about the constitutionality of state same-sex marriage legislation will go on for a long time without resolution. It hinges on questions like was last year’s same-sex marriage ban meant to "cover the field" on marriage law, or just apply to federal jurisdiction.

The best hook for such a debate is the introduction of legislation that claims constitutional legitimacy. The issue then becomes, is there reasonable grounds to make this claim?

When acknowledged experts like Prof George Williams and Prof Kris Walker say there is, most reasonable supporters of equality would agree it’s time to act.


~ Australia is one nation and should have one marriage law

This argument was first put forward by NSW Premier Bob Carr.

Odd, given that his job depends on federalism and the opportunity that gives different states to make different laws.

What is there about marriage which makes it more a national concern than, say, education, health, housing, criminal law, traffic rules or any of the other matters on which the populations of the states express themselves differently?

If de facto relationship laws can be shaped by the different aspirations of the different states, why not marriage laws?

What Bob Carr was actually saying was "what has been should always be".

LGBT people do themselves a great disservice mimicking such a conservative position.


~ There should be more consultation with the LGBT community before state same-sex marriage legislation is introduced

Consultation makes more sense when you have something to consult about.

Give a community something concrete to discuss, a framework for debate, and that debate will be more focussed and effective.

The other benefit of initiating an LGBT community debate through legislation that is drafted and introduced is that the debate thus sparked reaches LGBT people who are not part of inner-city ghettoes or networks.

There’s a big world beyond the 2010 postcode area and the introduction of this legislation will help to access it.

I might have more sympathy for this view if it was also put forward by supporters of the principle of state same-sex marriage legislation. That it is only heard from people with a history of scepticism towards marriage equality leads me to suspect that when they say "consultation" what they mean is they want more opportunity to obstruct, delay, pick holes, and muddy the waters.

A nuance on the consultation argument is that Sunday’s forum shows there is a high degree of concern from many ordinary members of the LGBT community about this legislation.

I don't think so.

Several organisations that represent significant slices of the LGBT community support this legislation.

In large part the people who were loudest in condemning state same-sex marriage legislation on Sunday night were members of the NSW Gay and Lesbian Rights Lobby and the AIDS Council of NSW. Some of them were also members of the ALP.

There are people who questioned the legislation who are not thus aligned, and some people thus aligned who support the legislation.

But most criticism was orchestrated by ring-a-rounds and prior caucusing.

This was anything but widespread community concern.


~ A debate on same-sex marriage in NSW will stir up opponents of LGBT human rights and "side-swipe" parenting reform.

Absolutely yes, and absolutely no.

I’m not sure how often I have to say this before it sinks in, but…conservative party strategists in the Australian states are keen to replicate George Bush and John Howard’s election victories by stirring up socially conservative and evangelical opposition to LGBT human rights.

Their goal is to corral these voters in key marginal seats and wedge the ALP.

They don’t care what the LGBT issue is.

If they can’t find a proposed reform to pillory they’ll turn their gaze to one that’s already in place.

It started earlier this year when the WA Liberals proposed a roll-back of equality in age of consent of parenting laws, and it’s coming to a state election near you.

In NSW the wedge might be sexual diversity in education, or the push for parenting reform. Whichever is selected you can be sure that a besieged NSW Government will go to ground on these vital issues.

One way to stop this happening is to give anti-gay groups another issue they can get all worked up about, an issue that will actually benefit from all the heat and fuss, marriage equality.

Even if I’m wrong and LGBT rights won’t become a state election wedge, you can be absolutely certain that the NSW campaign for parenting rights will provoke a virulent campaign against "gay adoption".

The equivalent battles in the ACT, WA and Tasmania will look like child’s play compared to the tsunami of bigotry that adoption will unleash in "the first state".

Think about it for a minute. The conservative power-bases of Australia’s Uniting, Anglican, Catholic and Pentecostal churches are all in Sydney. It’s home to the most conservative elements of both major political parties and the media. Western Sydney, in particular, is what Queensland and Tasmania used to be – the national symbol of social conservatism. I have no doubt this will change thanks to the ground-breaking achievements of the Western Sydney's LGBT and other activists. But for now Sydney is the stone holding the rest of the nation's social policy down.

And it’s not about to be led quietly down the path of family diversity.

Again the answer is a marriage equality campaign.

Marriage is an ambit claim. It’s a political heat shield. However you say it, marriage campaigning protects and mainstreams other reforms. Experience across the western world shows this to be true.

Yes, marriage reform will probably stir up the anti-gay right in NSW.

And if that means they’re less likely to worry about parenting reform, and that reform is more likely to occur, it's probably not such a bad thing.

***

But beyond the immediate need to meet the challenge of the conservative’s election strategies and the NSW anti-gay right, there is a much bigger issue at stake here.

The fear that marriage reform will stir up homophobia goes to the heart of the differences on show last Sunday night.

Should we wait until society accepts our claims on justice before making them, or should we make these claims in the hope that by so doing society will come to accept them?

Put another way, should we shy away from reform because it will make waves, or should we use the energy of those waves to create change?

I’ve made it clear many times that I’m not scared of a few waves.

This is because I believe that LGBT human rights campaigning is as much about social as legal change. It is because I believe these two types of change are interconnected, with both helping to create the conditions for the other.

It’s also because I believe that people are basically rational and fair-minded and will accept equality if they are educated about its benefits. Reform doesn’t need to occur surreptitiously or incrementally. LGBT people don’t need to curry favour with powerful institutions so that reform can be forced down from above.

When people say equality campaigning is bad because it will "stir up homophobia" what I hear is that they have no faith in the power of LGBT people to tackle bigotry, and no faith in other people to side with us against it.

In the absence of this faith they turn instead to people they believe have the power to make change for us.

I believe this is what was behind Sunday’s polarisation.

As I’ve said, many of the opponents of state same-sex marriage legislation at Sunday’s forum were also members of the Labor Party.

Below all their criticisms of state same-sex marriage legislation was there simply the one big motive that they wanted to shoot down the reform before it has a chance to embarrass their party?

I’m sure that was the motive for some. But I’m also sure there’s something even more important going on.

Not all, but perhaps too many, of the LGBT people I know in the Labor Party believe all that is required for LGBT human rights to be recognised is the election of the ALP to government.

Working with the community, working with other parties and institutions, media campaigns, education, protesting – it’s at best a side show compared to the real business of getting Labor elected (even if that means compromising your commitment to equality on the way).

And when I burrow down to why they believe this, they say it’s because "Australians are so conservative", "people will never change", "queers are weak and need to get with the strength".

History screams this is not true. Tasmania screams this is not true. But it’s an article of faith that’s hard to shake.

The fundamental rationale put forward so far for introducing state same-sex marriage legislation is that it will ignite a debate we have to have.

If this proves to be true, if state same-sex marriage legislation does spark debate, and increase support for marriage equality and other LGBT reforms, then perhaps the Labor-loyal will begin to question whether their party’s electoral fortunes are the only barometer worth watching.

In fact, if I were them I’d be asking that question already.

At Sunday’s forum, and in subsequent e-chat groups, newspaper letters columns, and blog postings marriage equality has provoked more debate about LGBT human rights and how to achieve them than I’ve seen in years.

In their anger at marriage equality, opponents of reform have proved the point that reform is a lightning rod of divergent values, and a catalyst for political change.

They probably wouldn’t agree but they are the best argument there is for continuing to campaign for state same-sex marriage legislation.

***

In other news, Benedict XVI reveals his true, apocolyptically-homophobic colours, the New York Times mourns the passing of a gay hero, and the Fiji Director of Public Prosecutions is outed as profoundly anti-gay.