Marriage Equality

[Pushka]

Agree totally - sadly dinosaurs seem to be still alive and well in the Liberal party !!!

I think you might find this issue strikes a chord with many from all colours.

Which raises the obvious question: If it's about protections why can't the US put protections in place without changing marriage (like we have in Oz).....or alternatively, why should Oz allow gay marriage if we already have the protections in place without it?

I think the real answer is not just in protections - it is about gays trying to change perceptions of the wider population and enforce "acceptance".
I do find it amusing however, that the "progressive", typically non religious elements in society are clamoring to adopt an anachronistic religion based institution such as marriage.

I'm happy being married but quite frankly I couldn't care less if I wasn't. To me the whole argument seems to be about the "grass being greener....." so while gay marriage is almost certainly inevitable, it remains to be seen whether it turns out to be the idyll gays seem to think it to be.

Marriage is a legal reference not just belonging to a religion. You might be happy being married, or not being married, but you have exercised your choice in doing so. That is the whole point. Give people a choice.

We have friends in Canada who have decided not to marry, their choice, they can marry if they want. We have a relative who would marry his partner, but he has no choice. They have been together for many years. Why should it bother you what others decide to do?

 

[vetrade]

Why should it bother you what others decide to do?

It doesn't. I would vote in favour of gay marriage but I was trying to make the point that I think that the expectations many gays have regarding marriage will be disappointed in the fullness of time.

 

[N860CR]

I suspect when you say "Mainstream" society, you probably mean those in society that virtually oppose anything that doesn't meet a narrow ( mostly conservative) view of the way things were / are or should be !
That I would suggest will most likely never change

Unfortunately, there's an element of "mainstream" in every group of people we deal with on a daily basis. Plenty of gay people are openly discriminated against in everyday activities that other people simply take for granted. I've worked for two separate organizations where people I put forward for hire/promotion were rejected because "we don't want a gay managing that section".

Unfortunately, these things still happen. A small step towards some normality can only help.

 

[JessicaTam]

No quotes from the Old Testament, here?

Leviticus 20:13 summed it up. We have been looking at this the wrong way. Same sex marriage and the legalisation of marijuan_ go hand in hand:

Leviticus 20:13 – “if a man lays with another man, as with a woman, he should be stoned.”

 

[Pushka]

It doesn't. I would vote in favour of gay marriage but I was trying to make the point that I think that the expectations many gays have regarding marriage will be disappointed in the fullness of time.

OK, but I guess that is life in general.

 

[esseeeayeenn]

Anyone who says they don't like judge-made law doesn't understand the common law system we and most English speaking countries inherited from England. Judges make and apply judge-made law every day.
Without judge-made law you would have no protection against breach of contract or negligence or trespass or defamation, to name a few. Nor, in Australia, would we have anything approaching a right to free speech.

As for the U.S. Constitution, would anyone seriously suggest it must remain as literally intended by its authors?
The SCOTUS has rightfully acknowledged that it is a living document which must be interpreted according to current understandings. To do otherwise would be to shackle the U.S. to an anachronism.
A kind of legal fundamentalism. And we know the awful consequences of any kind of fundamentalism.

Finally, any adult with functioning genitals can have children. That's biology. Sexuality (though not freely chosen) is a matter of inclination and preference, not capacity. Gay people have always had children and always will. Now they will be able to make more stable legal arrangements to protect those children.

At last someone finally thought of the children!

 

[Katie]

My understanding of the U.S. Decision was to in fact give Gay couples the same rights under the law as they didn't in fact have the protection of a de facto relationship. So marriage aside, j suspect it's more about the protection one gets from the right to marry, rather than the act of getting married ( in a church) or not

Also, with marriages only being recognised in certain states, if a married couple were in a state where their marriage was not recognised (say while travelling), the husband or wife might not be recognised as such in a medical emergency. This is similar to when mixed race marriages were illegal/not recognised in many stats of the US 40+ years ago.

A friend in the US was kept from his "husband's"* hospital bedside for 6hrs in 1990 because the nurse on duty did not recognise their relationship status. At shift change, another nurse allowed my friend to go to his husband's bedside and spend what remained of his 2 or 3 days of life with him.

* I use quotes because he did when sharing this story recently. There was no option for them to be married at that time.

 

[JohnPhelan]

Of course all people should have the same legal protection for their partnerships. The argument is really about whether the word "marriage" should apply to both of the versions.

So (in Australia and many western countries) it's actually an argument about a word. Think of it that way and it takes a lot of the heat out of it ...........

 

[RooFlyer]

Anyone who says they don't like judge-made law doesn't understand the common law system we and most English speaking countries inherited from England. Judges make and apply judge-made law every day.

<snip>

I'm happy to bow to a lawyer's greater knowledge of the law, but if a Judge makes a law doesn't that law have to enter the statutes? I think Parliament has some job along the way, together with the Governor or Governor-General, don't they? And then at the next election the people and the parties decide if that law is an issue and vote accordingly? (But too bad for those negatively affected in the meantime.)

 

[RooFlyer]

Leviticus 20:13 summed it up. We have been looking at this the wrong way. Same sex marriage and the legalisation of marijuan_ go hand in hand:

Leviticus 20:13 – “if a man lays with another man, as with a woman, he should be stoned.”

Best comment so far :mrgreen: .

 

[esseeeayeenn]

I'm happy to bow to a lawyer's greater knowledge of the law, but if a Judge makes a law doesn't that law have to enter the statutes? I think Parliament has some job along the way, together with the Governor or Governor-General, don't they? And then at the next election the people and the parties decide if that law is an issue and vote accordingly? (But too bad for those negatively affected in the meantime.)

Quite simply the answer to all of that is"no".

The law of torts - including negligence, trespass and defamation - is mostly made by judges deciding cases. That's the doctrine of precedent. Those precedents are the "common law".
The laws governing contracts are also made by judges, in the same way.

Sometimes parliament intervenes by passing a statute impinging on these areas - such as proportionate liability legislation. These override "judge-made" law. But judge-made law doesn't have to be confirmed by parliament. It stands unless a statute contradicts it. And even statutes have to be interpreted and applied. There is another whole body of judge-made law on the interpretation and application of statutes.

The combination of statutes and common law means our judicial system is flexible. It avoids injustices which would inevitably result from the inflexible generalised application of statutes which cannot possibly be written to cater for every possible set of circumstances which might come before the courts.

That is what the decision we are discussing represents. A court interpreting the most important US statute - the constitution - and ensuring it responds flexibly and is relevant 200 years after it was enacted. Whether one agrees with the decision or not, the role of the court in interpreting the constitution is vital. It isn't usurping the role of the legislature, it is complimenting that as intended by a constitution which enshrined the doctrine of separation of powers.

 

[Happy Trails]

If marriage equality means I get a chance to wear the trousers, then I'm all for it.

 

[dajop]

Which raises the obvious question: If it's about protections why can't the US put protections in place without changing marriage (like we have in Oz).....

When you talk about US putting protections in place without changing marriage, that is whole different debate. By doing so, and coming from a situation where only 9 out of 50 states have any form of recognition of de facto relationships (or common law marriages), it is much more complicated and one could easily making the case that recognising defacto partners and affording the same rights as a married couple does more to undermine the institution of marriage than allowing gay couples to marry. I am sure the bible belt states it would be just as difficult politically to afford those "living in sin" the same rights as those who are married. Whereas the gay marriage debate as been framed successfully it seems in terms of freedom and equality.

.....or alternatively, why should Oz allow gay marriage if we already have the protections in place without it?

AFAIK (according to wikipedia), the areas of difference I understand are that defacto partners do not have or have restricted access to the following benefits that married couples have access to include workers comp. death benefits, pensions for spouses of defence force veterans and access to carers leave. That aside, domestic partnerships are not recognised outside of Australia, whereas there may eventually be mutual recognition of marriages in other jurisdictions (I am not sure what the US Supreme Court decisions means for recognition of gay couples married outside US, for immigration or other purposes). Incidentally, I was offered a role in the middle of the US some years ago, one factor that weighed heavily on my decision was that I could not bring my partner with me and it would create challenges and be terribly inconvenient, although if I had a partner of opposite sex the challenges could have been solved by getting married (ironically I did accept a job in Singapore, which has even less protection, but it is much easier for foreigners to find good jobs here and have companies sponsor their employment visa, which is what my partner did, aside from the fact it is much easier to commute back and forth).

I think the real answer is not just in protections - it is about gays trying to change perceptions of the wider population and enforce "acceptance".
I do find it amusing however, that the "progressive", typically non religious elements in society are clamoring to adopt an anachronistic religion based institution such as marriage.

I disagree it is about acceptance. Having a bit of paper recognising relationship does not do a lot for acceptance. It is also worth remembering as far as the institution of marriage, it has not always been about religion, and marriage came before Christianity or Islam. I think this quote from wikipedia sums it up:

Many cultures have legends concerning the origins of marriage. The way in which a marriage is conducted and its rules and ramifications has changed over time, as has the institution itself, depending on the culture or demographic of the tim

I'm happy being married but quite frankly I couldn't care less if I wasn't. To me the whole argument seems to be about the "grass being greener....." so while gay marriage is almost certainly inevitable, it remains to be seen whether it turns out to be the idyll gays seem to think it to be.

I actually don't think it makes much of a difference other than the legal aspects. We've been together 17 years, I don't know if I bit of paper would make any difference, the grass is the same grass, it's not going to be any greener or browner for that matter on the other side.

 

[RooFlyer]

Quite simply the answer to all of that is"no".

<snip for space>.

That is what the decision we are discussing represents. A court interpreting the most important US statute - the constitution - and ensuring it responds flexibly and is relevant 200 years after it was enacted. Whether one agrees with the decision or not, the role of the court in interpreting the constitution is vital. It isn't usurping the role of the legislature, it is complimenting that as intended by a constitution which enshrined the doctrine of separation of powers.

Thanks. I was going to say 'make a law outside common law' (as I get the difference), but no matter; the explanation was useful.

Its the bit about 'interpretation' that got the minority Justices hung up (and reflects my own view, you won't be at all surprised to know . ) In a thing such as marriage - millennia old in its form, and centuries old in the USA, to have its meaning overturned by a majority of one vote by a bunch of people who happen to be on the bench at the moment I think is a bit too much of an adventure. I'm much happier with our system where the decision would be by Parliament, or better by Parliament after a referendum (if needs be).

To again quote the Chief Justice (NYT, linked to above):

Chief Justice Roberts said the majority opinion was “an act of will, not legal judgment.”
“The court invalidates the marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs,” he wrote. “Just who do we think we are?”

Apparently 5 of the Justices thought they were just the ant's pants.

 

[OATEK]

Quite simply the answer to all of that is"no".

The law of torts - including negligence, trespass and defamation - is mostly made by judges deciding cases. That's the doctrine of precedent. Those precedents are the "common law".
The laws governing contracts are also made by judges, in the same way.

Sometimes parliament intervenes by passing a statute impinging on these areas - such as proportionate liability legislation. These override "judge-made" law. But judge-made law doesn't have to be confirmed by parliament. It stands unless a statute contradicts it. And even statutes have to be interpreted and applied. There is another whole body of judge-made law on the interpretation and application of statutes.

The combination of statutes and common law means our judicial system is flexible. It avoids injustices which would inevitably result from the inflexible generalised application of statutes which cannot possibly be written to cater for every possible set of circumstances which might come before the courts.

That is what the decision we are discussing represents. A court interpreting the most important US statute - the constitution - and ensuring it responds flexibly and is relevant 200 years after it was enacted. Whether one agrees with the decision or not, the role of the court in interpreting the constitution is vital. It isn't usurping the role of the legislature, it is complimenting that as intended by a constitution which enshrined the doctrine of separation of powers.

I find this response somewhat confusing. As I understand it in Australia, the constitution states that the Commonwealth has the power to make laws in relation to marriage (eg Part V, Sec 51, clause (xxi.)). The High Court could decide based on a particular set of pleadings that such laws are unconstitutional because they clash with some other part of the Constitution, but as we do not have a Bill of Rights, then this is not as likely to occur here as in the US. In an Australian case the High Court would not so much be making law, as invalidating law, requiring the Parliament to sort it out, as has happened from time to time. So I do not see exact parallels with the US.

In Australia it really requires a change of law by the Commonwealth Parliament, and arguing about common law precedents does not to my mind advance the matter.

 

[RailFlyer]

I wonder what this thread would be like if the internet (in its current form) existed 30-40 years ago? I wonder if the same % of people who in 2015 are trying to come up with reasons why gay marriage is a bad idea would have back then been arguing that homosexuality didn't even exist or if they did indeed exist that they should be put in prison for it.

Progress on both sides of the debate in my opinion! Glass half full.

 

[phily]

They do. There is surrogacy. AID. Adoption.

Similarly, there is also fostering, and we certainly need many more foster-carers. And yes, there are approved same-sex foster carers, and there has been since about 1985 in NSW. Same-sex couples may also have had children from a prior heterosexual relationship.

These are all legitimate ways of "having children".

 

[sergeyvzn]

In a thing such as marriage - millennia old in its form, and centuries old in the USA, to have its meaning overturned by a majority of one vote by a bunch of people who happen to be on the bench at the moment I think is a bit too much of an adventure.

marriage is indeed a very old institution...however, its form has changed many times over the millenia. Same sex marriage had existed before Christianity became the official religion in ancient Rome. You might be interested to read a bit more about it

https://en.wikipedia.org/wiki/History_of_same-sex_unions

So all the judges did was return to the old meaning of marriage. All new things are well-forgotten old things

One way or another, same sex marriages will become a mainstream thing in the Western society very soon; and hopefully it will happen in Australia sooner than later. Me and my partner have been together in a stable and loving relationship for 13 years... I left my country and crossed continents to be with him 13 years ago and even if we are not sure now we would like to marry we do want to have this opportunity. De facto status is fine but we feel we are being discriminated by law here when marriage is denied to us just because John Howard did not like it and went to great lengths to change the Marriage Act

 

[RooFlyer]

marriage is indeed a very old institution...however, its form has changed many times over the millenia. Same sex marriage had existed before Christianity became the official religion in ancient Rome. You might be interested to read a bit more about it

https://en.wikipedia.org/wiki/History_of_same-sex_unions

So all the judges did was return to the old meaning of marriage. All new things are well-forgotten old things

One way or another, same sex marriages will become a mainstream thing in the Western society very soon; and hopefully it will happen in Australia sooner than later. Me and my partner have been together in a stable and loving relationship for 13 years... I left my country and crossed continents to be with him 13 years ago and even if we are not sure now we would like to marry we do want to have this opportunity. De facto status is fine but we feel we are being discriminated by law here when marriage is denied to us just because John Howard did not like it and went to great lengths to change the Marriage Act

I 'liked' what you said, However if the Marriage Act was changed then it meant that a majority in the rReps and Senate agreed, not because the PM didn't like it (although I don't recall the issue myself); Libs can cross the floor, and did so against Howard on a couple of things. I expect our Parliament will allow gay marriage one way or another, eventually, and good luck to everyone who takes advantage of it.

Our Parliament passes all sorts of things I don't agree with, but as long as due process has been followed, I don't go manning the barricades. But if its a significant change, it should go via a referendum. After all, the pro-gay marriage lobby keeps telling us how most Australians are in favour.

FWIW people who want our Parliament to vote for gay marriage ASAP may wish to consider making the issue less partisan and confrontational. I still remember the Republican debate when the media was overwhelmingly in favour (even the wicked Murdoch press ), pro republicans were telling us how 'most Australians were in favour' of it ... monarchists were derided, sneered at and insulted; 'stupid' was one infamous epitaph hurled in a TV debate.

Republicans lost in every state and territory except the ACT, even though the wording of the question was approved by the Australian Republican Movement (take a bow, Mr Turnbull) and the 'model' was the majority one out of the Constitutional Convention.

I don't want to hijack this topic with republican etc (honest) but just to say that the more the media, celebrities etc clamour for a cause, no matter how noble, the greater the chance of the people getting their backs up and simply either voting no or resenting the outcome if forced upon them. More reasoned debate and fewer insults (not talking about you there, sergeyvzn ) both on this thread and in the public debate generally will advance the pro gay marriage cause no end, I think.

 

[sergeyvzn]

I 'liked' what you said, However if the Marriage Act was changed then it meant that a majority in the rReps and Senate agreed, not because the PM didn't like it (although I don't recall the issue myself); Libs can cross the floor, and did so against Howard on a couple of things. I expect our Parliament will allow gay marriage one way or another, eventually, and good luck to everyone who takes advantage of it.

Our Parliament passes all sorts of things I don't agree with, but as long as due process has been followed, I don't go manning the barricades. But if its a significant change, it should go via a referendum. After all, the pro-gay marriage lobby keeps telling us how most Australians are in favour.

FWIW people who want our Parliament to vote for gay marriage ASAP may wish to consider making the issue less partisan and confrontational. I still remember the Republican debate when the media was overwhelmingly in favour (even the wicked Murdoch press ), pro republicans were telling us how 'most Australians were in favour' of it ... monarchists were derided, sneered at and insulted; 'stupid' was one infamous epitaph hurled in a TV debate.

Republicans lost in every state and territory except the ACT, even though the wording of the question was approved by the Australian Republican Movement (take a bow, Mr Turnbull) and the 'model' was the majority one out of the Constitutional Convention.

I don't want to hijack this topic with republican etc (honest) but just to say that the more the media, celebrities etc clamour for a cause, no matter how noble, the greater the chance of the people getting their backs up and simply either voting no or resenting the outcome if forced upon them. More reasoned debate and fewer insults (not talking about you there, sergeyvzn ) both on this thread and in the public debate generally will advance the pro gay marriage cause no end, I think.

Oh I am a big monarchist actually, I love my Queen and watch her Christmas message every year religiously

However I disagree that if "media, celebrities etc clamour for a course, no matter how noble, ...people getting their back up and voting no or resenting the outcome". It depends on the course. If it is noble, people do tend to vote yes and like the outcome.
I think most would agree that equal rights are a noble course. As far as I remember opinion polls show about 70% of Australians accept same sex marriage so it;s just a matter of getting this message across the Parliament. The remaining 30% won't agree but well...when 'traditional" slavery was abolished in the USA many more disagreed but what do think of it now? Social change is happening, new generations will grow for whom marriage means something else than it is for us now...so whether progressive social change is forced upon us by judges or the Parliament or via a referendum, it does not matter really, it is just happening