But it wasn’t always this way.
In fact, there was actually a time when Australia did have marriage equality – without most of us even realising it.
The legislation that frames and defines marriage in this country is the Marriage Act 1961. It was designed to take marriage out of the hands of the states and territories, and turn it into a commonwealth matter. There were nine separate systems of marriage law in Australia before the Marriage Act, so streamlining it made sense.
For all intents and purposes, the Marriage Act provides a good, solid framework covering off on the major aspects of marriage. It deals with the ways in which wedding ceremonies can take place (privately or publicly, provided there is a celebrant along with two witnesses). It sets the minimum marriageable age – 18 (unless there are “unusual and exceptional circumstances” in which case a 16 or 17 year old can get married with the permission of their parents and a court order). It outlines the requirements to become an authorised marriage celebrant, both religious and nonreligious.
In 2004, the Marriage Act was amended in two significant ways by the Howard government. The consequences of these amendments, are at the core of the marriage equality debate we’re having today.
Firstly, it defined marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” The second amendment saw to it that any Australian same sex couples married overseas (the sneaky devils), would not have their marriage recognised once they came home.
So, how did the Marriage Act define marriage before 2004? Well, it didn’t really. The language in the original legislation was designed to be descriptive, rather than defining. Delivering the second reading speech, the federal Attorney-General at the time Sir Garfield Barwick said,
“…it will be observed that there is no attempt to define marriage in this bill. None of the marriage laws to which I have referred contains any such definition.”
Which means that in theory, any two Australian adults – regardless of their genitals – could have gotten married in Australia until from 1961 until 2004. Unfortunately, this was never put to the test.
Australian politicians were seemingly a lot more progressive on this issue back in the 1960s, than they are in the 21st century. Take these remarks made by Attorney-General Barwick, where he stated that the main purpose of the marriage legislation was to:
“Produce a marriage code suitable to present day Australian needs, a code which, on the one hand, paid proper regard to the antiquity and foundations of marriage as an institution, but which, on the other resolved modern problems in a modern way.”
So not only did the politicians at the time not feel an urgent need to strictly and exclusively define marriage, they were also aware of the need to balance preserving the tradition of marriage within an evolving and changing society.
All of this raises a few interesting questions. Firstly, why did a white, wealthy, heterosexual male politician choose to define marriage almost half a century after the initial legislation was passed? And when choosing to define marriage, was it done with the initial ideals of the legislation to ‘resolve modern problems in a modern way’ in mind?
And of course, the marriage equality question of the year in 2016 – if the definition of marriage was changed once before without a plebiscite, why oh why do we need one now?