Human rights and advocating for social rights, although inter-related, are not the one and same thing. The human rights are stated in such a manner that the social, economic and cultural aspects are altogether treated as invisible. The Vienna Declaration in 1993 presented to the world a plan for reinforcing human rights on an international level (Declaration 2013). There were around seven thousand representatives who had participated, including people from the academic fields, and treaty bodies along with more than 800 non-governmental organisations. All of them had come together at Vienna to discuss and share their views and experiences.
The concern about human rights came into prominence after the issue of slavery gained attention. The World Wars saw an outrageous violation of human rights, and it led to the formation of the League of Nations in 1919, and finally the United Nations in 1945, after the League collapsed. Treaties were signed, and human rights flourished on an international scale (Conte and Burchill 2016).
Background and history of same-sex marriages
Regardless of the countless events in mythology or history, same-sex marriage has always been considered as not real –– even dictionaries and most constitutions define marriage as a union between a man and a woman instead of describing it as a consensual union between two individuals regardless of their sex. People who are sexually not straight have come out of the closet mainly after the 1969 Stonewall riots, and they have thus demanded that their marriages be given the same status as different-sex marriages (Dines 2016). Those opposed to this concept have termed it as oxymoronic, calling it a violation of the essence of marriage, and have faced backlash from the people who consider that it should be legalized. Be it the West, or be it any part of the world, same-sex marriages have always faced social stigma mainly because the homosexual community is a minor one. Interracial marriages are an everyday occurrence in Australia; it is still unclear as to why same-sex marriages are not recognized by the State. Same-sex couples often undertake the social and cultural practices related to marriage to validate their relationships, regardless of the fact that their marriages are not accepted legally.
Newspaper articles from the 1930s prove that gay men were marrying each other in Australia despite the practice being illegal (Joseph Patrick McCormick 2017). The institution of marriage is ever-evolving, its original meaning has ceased to be of value and it has accommodated several interpretations when and as required by society. Till the 19th century, marriage implied unequal rights for the two individuals involved –– the woman, or the wife, was the subordinate one, and was required to be dutiful and obedient to the man, or the husband, who had the responsibility of taking care and providing for the family. As the years progressed, the focus of marriage shifted from it being a divine union to a relationship based on mutual love, understanding and the satisfaction of the desires of the flesh and blood. The concept of love was thus introduced –– it was not there before –– marriages were seen as either business deals between prospective families, or as a match made in Heaven, like the Christians believed. Same-sex marriages can be traced back to as early as the Roman empire before the spread of Christianity, when Nero and Elagabalus were married (Osowski 2013). There are quite a few documentations of gay marriages but almost none of lesbian relationships, and this is understandable, as women had little or no freedom at that time.
The Government’s take on the issue
There have been about eighteen unsuccessful attempts at legalising it at both territory and federal levels; Australia recognises marriage as a lifelong voluntary union between a man and a woman (Webb, Chonody and Kavanagh 2017). In 2013, the Australian Capital Territory had passed a law that favoured same-sex marriages; it was however declared null and void by the High Court, as federal laws still prohibited same-sex marriages and they would therefore be final and binding, regardless of what the state laws are. Under the federal law, same-sex relationships are categorised as de facto. Most states recognise civil unions and allow domestic partnerships between same-sex couples. However, they are barred from getting married due to the prohibitions that were imposed by the Howard government in 2004 when it amended the 1961 federal Marriage Act (Keogh 2015). Section 88EA also denotes, that same-sex marriages conducted on foreign land will not be considered as a legal marriage in Australia. About 21 bills on this matter have been issued in the Australian parliament till date, but none have been passed or made into any law. The Australian Senate even rejected the Coalition government’s proposal to hold a referendum in November 2016.
The present Prime Minister, Malcolm Turnbull, supports the cause. He had advocated a Same-sex Marriage Bill in 2016, and the referendum was to be held in February 2017, but the Labor Opposition and the other minor parties declared that they would not support it (Anderson, Georgantis and Kapelles 2017).
Bill Shorten, Julie Bishop and Tanya Plibersek are among the notable politicians who have publicly declared their support for same-sex marriages.
Refusal to allow same-sex marriages as a violation of human rights
The government’s failure to hold a plebiscite regarding same-sex marriage is an example of how the Parliament is being unsuccessful in safeguarding the fundamental rights of the Australian citizens. The High Court in the country has limited power when it comes to passing any Bill of rights. The question of same-sex marriage should not be a matter of controversy, as it is nothing but another interpretation of the right to marriage equality. A January edition of the Sydney Morning Herald remarked, that all the citizens of Australia were equal before the eyes of law according to the 26th Article of the International Covenant on Civil and Political Rights, and thus the issue of same-sex marriage is pointless –– a legally recognised marriage should be the right of every couple, and it should not be affected by their sex, sexual orientation, or gender identity (Guarino 2017).
The Universal declaration of Human Rights may not authorise or sanction the recognition of same-sex marriages, but the principle of equality states that one cannot bar anyone from marrying someone according to their choice.
The prevalent notion is that homosexual people are psychologically damaged, and there are some people who even go as far as to declare that their children would be brought up in a negative environment (Webb and Chonody 2014). It is not just in Australia; gay people all around the world are subject to violence and are treated as lesser people. Even though the government recognises same-sex unions as de facto relationships, the people are not given the freedom of being able to legally sanction their marriage.
Article 1 of the Universal Declaration of Human Rights states, that all people are born free and have the right to equality and dignity, and that they should treat each other with respect and compassion (Abrams et al. 2015). However, this right is violated when gay and lesbian couples are treated badly and are humiliated. It is nothing new when narrow-minded citizens hurl insults at them simple because of their personal preferences. Article 2 of the same Declaration states that all human beings are entitled to the rights outlined in the Declaration, and they are to be treated equally without any discrimination on the basis of race, colour, sex, religion, language or political views.
Articles 3, 5, 6 and 7 state that all human beings have the liberty to lead a secure life, and shall not be subject to degradation or torture of any kind, as they are all equal in the eyes of law. The failure to recognise same-sex marriages is a gross violation of these laws –– the fact that those couples are not given the liberty to marry the person of their choice simply states that the government fails to follow this Declaration as outlined by the United Nations (Wilkinson 2016). There have been incidents where gay couples have been tortured and degraded and treated like as if they are not normal human beings.
Article 12 states that all people are entitled to their own privacy; what happens within the four walls of their homes is the concern of the people involved, not the government. It is therefore quite obvious that the issue of same-sex marriage is equal to encroaching on the private lives of the couples. Article 16 is the main right that is being abused; the article states that all men and women regardless of their ethnicity have the right to enter into a consensual marriage with anybody they wish to (Harris et al. 2014), and their family is entitled to the protection of their government –– it has been nowhere specified that the marriage has to be between a man and a woman.
Advocacy around the matter
The LGBT (Lesbian, Gay, Bisexual and Transgender) community has been vocal for the past many years in the matter of legalising same-sex marriages. In Australia, the AME (Australian Marriage Equality) is a group of volunteers driven by the same cause who support its legalisation. They are working to end the social stigma and the legal limitations on this matter in Australia. It was founded in 2004 by Luke Gahan and Geraldine Donoghue just before the Howard government amended the Marriage Act 1961. Gahan has been open about his life; he has declared himself to be the youngest gay person to get married and divorced in Australia (Gahan 2016). At present, he is actively involved with the LGBT community in addition to being a sociologist at Melbourne.
The AME took to television and newspaper advertisements to advocate the issue. After the ban on same-sex marriage, they had organised a campaign for it in May 2005 (Lea, de Wit and Reynolds 2014). They have held meetings with the Archbishop and the Parliament as well –– the Catholic Church in Australia has been active in condemning same-sex marriages, and the political parties have given varying opinions regarding this matter.
Senator Cory Bernardi had equated same-sex marriage with bestiality and polygamy; this had sparked an outrage within the AME and Bernardi has faced criticism from Rodney Croome, who has repeatedly emphasised on the fact that the countries where same-sex marriages are legal have not considered legitimising polygamy or bestiality because they are completely irrelevant to the issue at hand. Results released from polls have revealed that marriage equality was the fourth-most important issue among the section of population aged 18 to 25 (Webb and Chonody 2014). Also, 65% of Australians have supported marriage equality –– there is a big difference between the opinion of the government, and the acceptance level of the general public when it comes to same-sex marriages.
Effects and failures of the advocacy
Even though the plebiscite was never held, the matter of a free vote on the issue of same-sex marriages was feasible, but the idea never managed to see the light of the day. The Parliament has declared that the matter should be solved with seriousness and by not treating it like a trivial matter, as there is a considerable population of gay and lesbian people in the country.
After repeated efforts, the Australian Capital Territory had introduced the right of same-sex marriage in 2013, but it was overruled by the High Court. AME called it a temporary defeat. They however rejected former Prime Minister Kevin Rudd’s proposal to hold a plebiscite in June of that year. After the United Kingdom legalised same-sex marriages in 2014 (Clements 2014), many British couples got married at the consulates in Australia –– this was seen as a success by the AME.
Same-sex marriages on an international level
The status of same-sex marriages has undergone numerous changes across the world, and has been influenced by the religious, cultural and social norms of the concerned regions. In 2001, Netherlands became the first country in the world to recognise marriage equality. By 2017, numerous other countries had legalised it, including Belgium, Portugal, Brazil, the United Kingdom, the United States and Finland (Trandafir 2014). In Africa, same-sex marriages are not viewed favourably, and South Africa is the only country that recognises it legally. Cambodia lifted the ban on gay marriage in 2011, and the local governing bodies have the freedom to issue marriage certificates to same-sex couples. In China, however, the interpretation of its constitution has led to believing that only monogamous and heterosexual marriages will be given legal status. Taiwan replaced its terms on marriage with neutral ones, and marriage came to be implied as a social union between two consenting individuals, rather than emphasising on the involvement of a man and a woman. It is also legal for couples to adopt children in the country (Horton 2016).
Recommendations for the protection of human rights of the affected individuals
The Australian government needs to understand the need for legalising same-sex marriages in the country. It will not only reinforce the fundamental human rights of individuals, but will also provide the much-needed security to the LGBT community and protect them from unnecessary harassment. In all of Oceania, Australia has always been quite advanced when it came to the concept of same-sex relations, and it is therefore time that their marriages get the legal status they deserve.
A large section of the Australian population supports the legalisation of gay and lesbian marriages. The strongest supporters are the younger generations, although a majority of the elderly, aged 55 or older, have expressed their supportive views as well. Women are more likely to advocate and support for marriage equality rights, and the overall support has seen an increase since 2013. Growing awareness on the matter of human rights has contributed to this, and it all depends on the government now as to what steps are to be taken regarding this issue.
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