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Same-sex marriage – the Indian ‘Yes’ and ‘No’ Case

This month-end will close the postal vote on the issue of whether to change the definition of marriage to allow same- sex marriage in Australia. The law as it currently stands – recognizes the union of two people of the same sex as one couple or household but they cannot be legally married.

The definition of Marriage:

Prior to 2004, the Marriage Act of 1961 did not have a formal definition of marriage. Under Section 46 of the Marriage Act, it was recommended that the marriage celebrant would explain the nature of the client couple’s relationship.

The Act required duly authorised celebrants to explain  marriage relationship as below:
“Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”;

And in 2004, by an amendment the federal government then led by Prime Minister John Howard inserted SubSection 5(1) in the Marriage Act 1961 and defined marriage legally as below:

marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

While Australia was providing a definitive and traditional definition of marriage, some other countries in the world allowed and recognised same-sex marriages. That prompted some Australian couples of same-sex to go overseas get married and then come back as married couples. Obviously they wanted their marriages to be recognized in Australia.

And Prime Minister Howard, for the removal of any misgivings, also amended other relevant sections of the Marriage Act 1961 – Sections 88B and 88E and then finally inserted under Section 88EA as below:

88EA Certain unions are not marriages

A union solemnised in a foreign country between:

(a)  a man and another man; or

(b)  a woman and another woman;

must not be recognised as a marriage in Australia.


A lot has evolved since then.

The social milieu in Australia has become more and more open to accepting same-sex couples.

There has been a shift in the attitudes in the judiciary and the union of two people of the same-sex is recognised. Living in a union or de facto relationship, couples are able to assert the same rights as married couples.

Like married couples, same-sex couples are recognised by various arms of the government including the Centrelink, Immigrations department, Family Court of Australia.

Advocates of ‘No” vote say Australia has recognised the LGBTIQ community as well as other members of its society.

Particularly cited is special act passed by the Commonwealth Government in 2008 called “Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 where the issue of discrimination faced by the same-sex couples and their children, is addressed.

Almost all areas of Federal Australian laws were amended to accommodate requirements of the evolving Australian society and all those definitions where words like “spouse” , “husband” or “wife” were substituted with “partner” or “de facto partner” as required by the context.

Advocates for the Yes” vote say the laws fall well short of what is needed.

They cite examples of the difference between “proof” requirements of a de facto relationships (which most same-sex couples have because they cannot legally marry) and just a ‘marriage certificate’ sufficing – if the couple in question is married. They say they are condemned to be in such a relationship when majority of the LGBTIQ community or same-sex couples would like to ‘marry and commit themselves for life’.

The “NO” vote protagonists – led by conservatives like former Prime Minister John Howard, former Prime Minister Tony Abbott and the Catholic Church, the Coalition for Marriage and many others argue changing the definition of marriage has huge implications and consequences and hence it should remain – traditional – as a union between a man and a woman entered into voluntarily for life – to the exclusion of all others.

“At one level, insisting upon any particular definition of marriage may seem like pedantry. At another level, though, it’s important to maintain cultural and intellectual integrity… let’s find a way to solemnise what is intended to be a sacrificial love between two people of the same sex; … And if you change marriage, you change society; because marriage is the basis of family; and family is the foundation of community”, Tony Abbott wrote in a piece he wrote for the Sydney Morning Herald (September 13).

No doubt, marriage is the most significant and fundamental basis of family, which in turn forms the microcosm of our society.

For Australians of India/Asian descent, marriage, historically and culturally, has been of much greater significance for centuries.

The LGBTIQ community of Indian descent is much smaller (perhaps smaller than the Asian Australians) but not less significant in any sense.

Molina Swarup Asthana, a practising lawyer and an Australian of Indian descent has espoused the cause of the “Yes” vote. Representing a group called Asian Australian Alliance (“AAA”), Ms Asthana as its co-convener says:

“LGBTI Asian Australians are being treated as second class citizens as they are currently being discriminated under the law and are being excluded from the civil institution of marriage, which is a right that must be available to all Australians… LGBTI Asian Australians, their children and families must be protected under the law.”

“How could she make such a generic and sweeping statement” asks Mr Singh in a response to AAA’s media release.

Mr Singh who practices in Melbourne’s legal domain  requested not to reveal his first name.

Asthana and her group AAA urge Asian Australians to show good citizenship and leadership by voting ‘Yes’ to Marriage Equality and rejecting all forms of civil law discrimination… At the heart of this issue is the inherent dignity of all our family members and friends in our community who are LGBTI people

“As a lawyer, is she not aware of Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008?

“Other than the fact that they (LGBTIQ community) cannot call their union as ‘marriage’, the issue of discrimination faced by them and their children has been (largely) addressed by the federal government in that Act of 2008.

“And then she is admitting that the LGBTIQ people are potentially victims of cultural or religious discrimination. What does that have to do with this postal plebiscite? Mr Singh further asked.

Ms Asthana through her media release is urging all Asian Australians to vote ‘YES’.

On the other end of the spectrum, for “NO” vote, is Sri Lankan Australian Karina Okotel – the new poster girl for opponents of same-sex marriage.

Karina, federal Liberal party vice president (one of the five), unsuccessful senate candidate says she signed up to the “No” campaign because she cares about the rights of children, which would be threatened by same-sex marriage.

The 37-year-old is a lawyer and works for the Victoria Legal Aid. She is mother of 3 children – 3, 2 and a ten week old.

“[The No campaign is] not a campaign that’s uncaring or unkind, it is caring about the impact of future generations, religious freedoms, kids and freedom”, she said addressing the National Press Club in Canberra on September 13.

But her zeal to defeat the “YES” campaign’s argument that a relationship (and thus marriage) is all about “love”, let her down when she said:

“That’s a red herring. It was never just about that (love).

“In Sri Lanka, you see arranged marriages, they work. Marriage has always been about family and a stable environment for kids.”

One could argue – a marriage sans love – is like captivity.

Karina also warned Australians that the education environment for kids will change for the worse: “If same-sex marriage becomes lawful, then children will be taught about gender fluidity and sexual subjects in schools.”

“… surely children have the right not to be confused by adult agendas. And in legalising same-sex marriage, we would inevitably lose the freedoms to call this out because it would be viewed as discriminatory to do so.”

Briefly, Karina’s “No” case can be summed up as the Australian Christian Lobby’s as below:

  • Impact on Schools: Saying ‘yes’ to same-sex marriage means saying ‘no’ to parents’ rights.
  • Impact on Free speech: Saying ‘yes’ to same-sex marriage means saying ‘no’ to freedom of speech.
  • Impact on Religion: Saying ‘yes’ to same-sex marriage means saying ‘no’ to religious freedom.

Although Karina’s presentation lacked a natural flow, but what stuck a cord was the potential that children could lose their right to know and be parented by their biological parent.

Also thrown in the mix, are children-now-adults (Australian Millie Fontana and American Katy Faust) raised by same-sex parents who are firmly opposed to same-sex marriage.

Millie Fontana argues that allowing same-sex marriage will – in turn legalise “commercial surrogacy” which is illegal in Australia.

Katy Faust has been a campaigner against same-sex marriage for years now and Karina’s argument – vote “NO” to protect children’s rights – is quite likely premised on Katy’s thesis. Katy crystallises the argument saying “Children have rights … the onus needs to be on adults to conform to the rights of children rather than children fitting into an adult’s lifestyle”.

Katy Faust even asserts that children of gay parents are pressured into supporting them.

The traditional definition of marriage – which has been derived from  England, March 20, 1866 – in which JUDGE Lord Penzance defined marriage as the voluntary union for life of one man and one woman, to the exclusion of all others. The Judge further said marriage creates mutual rights and obligations, as all contracts do, but beyond that it confers a status and that of “husband” and “wife” and is recognised throughout Christendom.

Not surprisingly, the baton to canvass the traditional definition has fallen in the hands of very few conservatives who are being labeled  as “bigots”, with heterosexual majority keeping quiet in this debate.

“For fear of being called or labelled as ‘bigots’, the heterosexual majority in the “NO” vote camp, particularly from the Indian community have simply given up on that “status”,’ says Mr B. K. Thakur who came to Australia in the early 1960s.

“My age tells me, there will be only a very small chunk of Indians who would vote Yes”, adds Mr Thakur, much to the disappointment of Ms Asthana.

Viewed in the cultural context, even a small number of “Yes” vote is a big leap forward for Indian Australians – who though, from the land of Kama Sutra where historical references to homosexuality are abundant in literature and heritage, yet have denounced homosexuality for centuries.

-Nidhi Mehta with DM

 

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