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Same-Sex Marriage: Division within the Gay and Lesbian Community

Lyndon Barnett - June 2005

In May 2005, The Greens organised a forum in the Newtown Hotel to raise awareness of the issues surrounding same-sex marriage. Representatives of three major NSW gay-rights lobby groups attended: The NSW Gay and Lesbian Rights Lobby (GLRL), Australian Marriage Equality (AME) and Community Action Against Homophobia (CAAH). The NSW Greens Senator, Lee Rhiannon and the Tasmanian Greens Assembly Member, Nick McKim addressed the community meeting.

It was billed as an open discussion of the issues, but it didn't quite go according to plan. Simon Margan from CAAH explains, "A group of noisy hecklers turned up and basically tried to disrupt the meeting. It was quite scandalous.” The group interjecting was from the Gay and Lesbian Rights Lobby. Luke Gahan, National Convenor of AME tells a similar story, “Nick McKim spoke of the Bill he had introduced in Tasmania and members from the GLRL tried to find fault with everything he said. They shouted him down. I felt really sorry for him.”

The episode served to indicate that the question of same-sex marriage has become a divisive issue within in the gay and lesbian community.

Traditionally, same-sex marriage has not been an issue for gay and lesbian lobby groups. “It just wasn’t prioritised that much, until it was banned,” Simon explains. “As soon as people can’t do something then, they react against it. There is no point complaining about something that we can do already. We only campaign against things where there is a problem.”

Same-sex marriage became a campaign issue on August 13 2004 when the Federal Senate passed the Marriage Amendment Act. This Act defined marriage as between a man and a woman, and also stated that marriage ceremonies conducted overseas between same-sex partners were not recognised in Australia. While same-sex marriage was never legally possible, the Federal Government had now passed an Act that made it illegal. And not surprisingly the major gay rights lobby groups objected.

Luke Gahan dubbed August 13 as ‘Marriage Equality Black Friday,’ setting up the lobby group AME to not only repeal the new Act but to lobby parliamentarians to legislate on allowing same-sex couples to marry in Australia. “In just under a year the AME has grown to over 500 supporters,” says Luke.

CAAH also took on the marriage issue as a focus for campaigns, "We reacted against it,” says Simon. “It is something that needs to be set right.” CAAH has been established in 2000 to campaign for the rights of the gay and lesbian community. “The first issue we dealt with was queer refugees. Whether being queer allowed you to seek refugee status in Australia, where people could be sent back to countries where they could receive the death penalty because they were gay.”

Like the other groups the GLRL took up the marriage issue having for 15 years lobbied for gay and lesbian rights issues including anti-discrimination, parenting and most recently the Australian jailed in Fiji for homosexual acts.

So the community was united against the changes in Marriage Act imposed by the Government.

The dissention between lobby groups arose in April 2005 over which parliamentary arena to facilitate marriage equality.

Dissent on the issue had its origins in the findings of a constitutional law expert who discovered a loophole in the Marriage Amendment Act. In April this year Professor George Williams of UNSW said that state laws were constitutional when they don’t overlap with Commonwealth laws and so the changes to the Federal Marriage Act had opened the way for states to pass their own laws without any overlap. Each state could constitutionally pass laws allowing for same-sex marriage, he argued.

Nick McKim explained the loophole to the Tasmanian House of Assembly on April 13 2005, “John Howard's amendments to the Federal Marriage Act made it abundantly clear that that Act only referred to marriage between a man and a woman. Having done that, Mr Howard inadvertently left the constitutional door open for the States to legislate for gay marriage, because there is no overlap and there is no conflict, because federal law only relates to marriage between a man and a woman.”

Based on the constitutional advice and with the full support of the Tasmanian Gay and Lesbian Rights Group, Nick McKim introduced the Same-Sex Marriage Bill 2005 into Tasmania Parliament on April 12. The Bill was debated the following day where it was concluded that a parliamentary inquiry should commence.

Following the Tasmanian lead, Lee Rhiannon tabled a Same-Sex Marriage Bill into the NSW Senate on May 4. It has yet to be debated in Parliament.

Lee Rhiannon’s Advisor, Kristian Bowell, explains the reasoning behind the Bills, “The Greens sexuality policy advocates full legal equality regardless of sexual orientation.  Same-sex marriage is a pillar of that equality. Given the Federal Government's opposition to same-sex marriage, it is appropriate to explore the possibility of sexuality law reform at a state level.”

In the same month in the ACT, Chief Minister, Jon Stanhope published a government-supported discussion paper on formally recognising same-sex relationships, including same-sex marriage in his Territory. The discussion paper calls for submissions and comments by August 2005.

The state-based Bills have the full support of AME and CAAH who see state based same-sex marriage as a positive step forward. Simon explains CAAH’s stance, “Our position is that we would like to see 100 per cent equality eventually, so anything that comes close to 100 per cent equality is good enough for us. If people are making the right moves in the right direction then we support that.” Luke Gahan the Convenor of AME has a similar view, “We are calling for same-sex marriage at a federal level because that would be full equality, however state-based legislation is a great step in the right direction.”

To generate community and parliamentary support for the NSW Bill, AME and CAAH have organised a National Day of Action for the anniversary of the ‘Marriage Equality Black Friday.’ On August 13 2005, they will march from Taylor’s Square to State Parliament. However the GLRL have not indicated whether they will be supporting this event. As Simon says, “The GLRL won’t endorse any of our actions. I don’t know what they are going to do for the up-coming August National Day of Action.”

The GLRL are pushing for same-sex marriage only at a federal level. They do not support the Greens initiative for state-based legislation. In a press release co-convenor, David Scamell said, “State-based marriage laws may give the right to marry, but they will not give our relationships full equality in the eyes of the law. It will make our relationships separate and unequal. Separate in that straight couples will be able to be married under federal law, while our marriages may only be recognised under NSW law. Unequal in that we will still face discrimination in many areas on a day-to-day basis.”

To debate strategies the GLRL hosted their own relationship equality forum in Newtown this month to facilitate community discussion on the federal issue. Simon says, “We [CAAH] went to the GLRL relationship forum but we did not heckle like they did at The Greens forum. They are pushing for federal legislation as opposed to state legislation. If it is not possible, it isn’t possible.”

In response to GLRL’s position, Kristian Bowell, Lee Rhiannon’s parliamentary advisor says, “Whilst the Greens acknowledge the good work that the Gay and Lesbian Rights Lobby has done in NSW, we disagree with them on their point of view and on tactics. When the Greens introduced a Same-sex Relationships Bill into Federal Parliament in 2004 the GLRL were unimpressed with that initiative as well. On that basis, it is unclear if the Lobby supports proposals that they do not initiate.We believe that if this legislation is passed it will take NSW a step closer to full equality and that in itself, is a positive outcome.”

Luke Gahan says that this division within the Gay and Lesbian community could threaten all efforts towards legalising same-sex marriage. He says that opponents of same-sex marriage are using GLRL’s comments as ammunition against the concept regardless of the political arena. Guy Barnett, a Tasmanian Liberal Party Senator who championed the Marriage Amendment Act in 2004, used the NSW GLRL press release in a letter to the Editor of the Hobart Mercury published on May 7. After citing the release, Barnett wrote, “I stand by my earlier comments that the Tasmanian Greens legislation is a distraction and a political stunt.”

Luke points to a possible solution to the current differences within the Gay and Lesbian community, “These competing views amongst the NSW lobby groups, demonstrate a definite need for a National Rights Lobby Organisation.”