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Finding a respectful course for the marriage equality debate

A panel talk hosted by Baker & McKenzie has explored the ins and outs of Australia’s political crossroads on marriage equality.

user iconMelissa Coade 22 September 2016 SME Law
Finding a respectful course for the marriage equality debate
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The Melbourne event was moderated by barrister and legal academic Dr Matthew Collins QC, who has published extensive commentary on how the end does not justify the means in the case of a plebiscite on gay marriage.  

Certain voices from the ‘no’ side “are apparently bent on using the cover of a plebiscite to advance specious arguments connecting same-sex marriage with the abuse of children, sexually transmitted diseases and drug abuse”, Dr Collins argued in a piece penned for The Conversation in March.

Dr Collins has also echoed concerns raised by retired High Court judge Michael Kirby that there appears to be a tradition of voting down plebiscites in Australia. Because a marriage equality law would not require amending the constitution, the barrister said he could see no legal reason for a plebiscite to be held.

“There have been only three national plebiscites in Australia’s history. Not one provides a useful precedent.

“Australian parliaments routinely legislate in respect of socially contentious issues without resorting to plebiscites or referenda,” Dr Collins said.

Sydney lawyer Craig Andrade participated as a member of the panel that discussed the role of corporate Australia and others in debating the issue respectfully.

The Baker & McKenzie partner and LGBTI ambassador said the initiative was part of the firm’s ongoing position on marriage equality in Australia.

He said the firm recently affirmed its stance on marriage equality as a signatory to relevant petitions and briefs in Australia and abroad.

"Baker & McKenzie, together with over 1,000 organisations across Australia, signed the Australian Marriage Equality petition in support of marriage equality.

"Our commitment to marriage equality in Australia follows on from the position the firm took internationally in signing amicus curiae brief in support of marriage equality in the US Supreme Court case of Obergefell v. Hodges,” Mr Andrade said.

Earlier this year Mr Andrade, who also leads the BakerLGBTI & Allies network, spoke to Lawyers Weekly about the next steps firms must to take for workplace diversity to be embraced in the most meaningful way possible.

"In the LGBTI space, Baker & McKenzie are focused on three things: our staff, on our clients, on the community.

“Across those three areas we ask ourselves, ‘What do we value? What’s important to us? What is our story? What is our narrative in how we’re going to try and make a difference in the lives of people across all three of those areas?',” he said.

The panel discussion canvassed a number of issues, including the concerns of corporate involvement in the current debate and the potential risks the plebiscite poses to the push for marriage equality, LGBTI Australians and their families.

An audience poll taken at the event found that 80 per cent of over 100 people in attendance preferred to wait three more years for the issue to be decided at a federal election than by way of a plebiscite.

While the federal cabinet has voted to hold the same-sex marriage plebiscite early next year, enabling legislation has not been presented to the Australian Parliament. Strong questions remain as to whether the bill would have the numbers to pass through the senate, with Labor threatening to block the vote.

Joining Mr Andrade on the panel were beyondblue CEO Georgie Harman, Professor Dennis Altman AM, PwC chief of staff, consulting Tanya Matthewson, and Commonwealth Bank executive David Brine.

The event was hosted in partnership with professional mentoring group Out for Australia.

Comments (6)
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    Commercial surrogacy was banned because it was unnatural and averse to the interests of children, the biological mother and all concerned. Gay marriage is a Pandora's box. The gay lobby will start campaigning for the legalization of commercial surrogacy if gay marriage is legalised because this gives their case legitimacy.
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      This comment is indicative of the type of fear monger and misinformation that would be spread in the event of a plebiscite on what is fundamentally a human rights issue.

      In a plebiscite on this issue, human beings who happen to be gay will have to contend with being derided as "unnatural" as a reason for denying them equal rights under the law for marriage purposes. If they have children, their children will be exposed to this kind of derision of their two mums or two dads, and their wider families as well will have to endure public debate on whether or not their son or daughter should be treated as an equal human being under the law (or whether they are some lesser form of life who should be treated differently).

      If two people love each other and are committed to each other then they should have the same right to get married as heterosexual couples do. I can think of no better environment for children to grow up in than having two loving and nurturing parents, irrespective of their gender.
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    "Homosexuality is trying to become heterosexual by "willing it into existence".

    This just shows the kind of misconceptions and misinformation that would be proliferated during a plebiscite on a fundamental matter of human rights. This kind of comment suggests that gay people are mentally disordered and are seeking to imitate heterosexual couples. The connotation is that gay people are lesser beings and therefore ought not be treated equally under the law as the relationships they form are something inferior to that between heterosexual couples. Often, the relationships between gay people are derided by opponents of marriage equality as nothing more than a "special friendship".

    The legal concept of marriage has incrementally evolved over time. Certainly in times gone by 'traditional' marriage was very different to how marriage looks like today. Not too long ago a Caucasian and Aboriginal Australian could not get married, rape was not illegal within the context of marriage, and furthermore women lost their individual legal identity and were required to "honor and obey" their husbands.

    If two people love each other then they should be afforded the opportunity to be recognised as a married couple and be treated equally under the law in this regard. Plenty of heterosexual couples decide not to have children - does that make their relationship and marriage any less than to those who decide to have children? If same sex couples wish to get married then this only strengthens the concept of marriage as a legal union by which two people who love each other commit to each other for life.
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    Why is it that John Howard didn't require a plebiscite to exclude same-sex marriage, but now it's necessary to spend millions of dollars on a public vote in circumstances where it is clear that the majority of Australians favour changing the definition of marriage to include same-sex relationships?

    Furthermore to suggest that the current definition of marriage exists because of the ability of a heterosexual couple to have children is ludicrous. Taking this argument to its logical conclusion, infertile persons or those who did not wish to have children, should not have the right to get married either.

    Parliament should just get on with its job and fix the mess created by the Liberal Government in 2004.
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    The plebiscite is important, not just because it was an election promise to uphold the will of the people, but also because it addresses the legal definition of marriage which is about law and families – these are much plainer and much more boring than the emotive propaganda slogans of "equality", "love" and "rights" (which are not relevant to changing the Marriage Act). Legal Marriage is solely a unique legal institution that joins law and biology. The rights, both written and assumed or extrapolated, exist to join a man and a woman and any children they may have. A gay man's relationship with another man is already equal in love, in status & in respect but it is not identical: they cannot have a baby without a woman. Building the assumption into law that men have babies is insisting that law reject objective reality simply because that reality offends homosexuals. That is the nub of this and why same sex marriage cannot be “equal” with heterosexual marriage. Giving straight marriage to gay people sounds like generosity, feels like doing good but it fundamentally redefines a legal institution and then leaves that institution perfectly in place with an incompatible definition. That is a grenade going off in family law and while we know where some of the shrapnel goes, some of the effects won’t be seen until courts are asked to rule. Jurisprudence has a terrible habit of making lovely intentions into legal nightmares. Religious marriages are legally recognised as part of a religious service (including references to God). The current religious marriage certificate has the seal/signature of the church leader along with the official seal of the Commonwealth of Australia. No secular registry required. Religious marriages are under the very Act that the same sex marriage advocates seek to amend - so the re-definition of marriage affects all religious marriages that currently exist because it removes the inherent religious component. One of the rights found to accrue to married couples is the right to have children. Since same sex people can only vindicate this right to procreate using a surrogate, a woman, the ability of the government to do anything to regulate surrogacy must be severely curtailed by this legal change. The rights that accrue to same sex couples create a right for opposite sex couples too. Marriage is therefore fundamentally changed more and more as these legal ripples flow through into Law. Homosexuality is trying to become heterosexual by "willing it into existence", but never the twin shall meet due to biology. Children are fostered or adopted into designer children for the confected lifestyle of their same sex parents....just luxuraly accessaries to a lifestyle choice. Evolutionists and feminists see through all this too - the former see that it doesn't "propogate the human species" and the latter see that any man trying to perform the role of a woman simply cannot cut it. Of course you are free to believe that the purchase of eggs, the rental of women, the removal of children from their birth mother are perfectly good ideas but honesty demands we face the consequences of making a bad trade unstoppable. We inevitably face another age of stolen children along with the damage that children face by not having a male and female input into their upbringing. Since same sex partners can never both be the biological parents of the child; they always require the State to vindicate their parenthood – that is all same sex marriage is. In the absence of “the natural” family, there can only be shallow, superficial, parent-indulging “legal parenthood”, with the State deciding between the various parties to the child’s birth and custody. This discarding of “the natural” for “the legal” will apply to all subsequent marriages, even of men and women, with “the natural” having no real meaning in law. This is a massive change that transfers huge, dangerous power to the government. Constitutions protect us not from the government we have, but the one we will have. The Marxist agendas are being exposed by people pushing for same sex marriage and “gender fluidity” - they see it as a way for governments to control families and parents are told to stay out of raising their children. We already see incestuous and polygamist marriages being pushed in other countries where same sex marriage has become legal. The "slippery slope" argument never goes away because it is undeniably real and relevant. It might be argued that this is an expansion of marriage, that the same sex couples can be given marriage without affecting the legal institution for other two gender couples. This is obviously not true as the changes effected in law by taking gender out of marriage but leaving marriage at the centre of family law are too obvious. Equality simply cannot be applied to same sex and opposite sex relationships in this way because the former lacks the biological capabilities of the latter – it is their biology that makes marriage unequal.....and any attempt to make man-man “sex-based” marriage (with multiple partners and group sex mixed in) exactly the same as a man-woman “family-based” marriage for life hits the iceberg of biology.

    There is no mention of “love”, “equality” or “human/civil rights” in the changes to the Marriage Act - there is just a re-definition of the Act to include same sex couples. Any other terminology are just emotive propaganda slogans coming from the Yes side. Labor are only interested in getting the bragging rights to say that they brought in “same sex marriage” (as well as protecting their far-Left voter base from running off to the Greens and NXT) and so they are considering blocking the plebiscite because if it goes ahead and the Yes vote win, then the Coalition gets the bragging rights. However, Labor is balancing this against how they will look as being undemocratic and elitist by not letting the people have their say (as was promised by the winning Coalition government at the federal election), plus they have a binding Yes vote on all MPs at the next election thereby chasing some (many?) Labor voters who don’t support same sex marriage away from them - so rejecting the plebiscite could be more damaging than supporting the plebiscite and potentially letting the Coalition get the bragging rights. This is all that Labor are thinking about - they actually don’t care at all about LGBTIQAP+ people or about the potential suicide risk to anyone. It is all just political game-playing for them and nothing else.
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    The real concern of a plebiscite is finally expressed here that the will of the people might still result in a no vote. An election is not a plebiscite on a single issue but multiple issues. Turnbull is said to have no mandate now for a plebiscite, so what is the margin required in an election for a mandate? Aren't we concerned about political elites ruling without reference to the disenfranchised public?
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