Alliance Family Law comment: It always helps to look over your shoulder when discussing an issue where there are strong opinions; to have a look at what others are doing; to make sure you’re not going to be the one trying to hold back an inevitable tide. In the 12th century King Canute of Denmark felt he needed to demonstrate his lack of total power to his courtiers, his lack of control over the inevitable. So he took up station in a chair beachside to command the tide to halt. True to form then, it was Denmark, 700 years later in 1989, that saw the tide of gay union rising and became the first country to legally recognise same sex unions. Since then worldwide progress has been a slowly rising tide and many countries (Australia included) are now arguably starting to look as though they are getting their feet just a little damp.
Keri Phillips on Radio National’s Rear Vision program tracks the spread of gay marriage across the world:
A worldwide history of marriage equality
- Tuesday 16 June 2015 5:02PM
- Keri Phillips
Same-sex couples can now legally marry in 17 countries and similar laws are pending in another three. In the United States, where 36 states—plus Washington DC—issue marriage licenses to same-sex couples, the Supreme Court will shortly release a decision which could effectively legalise gay marriage nationally. Keri Phillips tracks the spread of gay marriage.
The Netherlands became the first country to introduce full legal marriage equality, according to Professor Lee Badgett, an economist at the University of Massachusetts, Amherst.
‘First, couples who lived together got the same rights as unmarried heterosexual couples who lived together, and then they created a registered partnership status, and then that gradually evolved to have more and more of the rights and benefits of marriage. It ultimately meant that you couldn’t really any longer say that you really had a good reason to treat gays differently.
‘There was also big political effort, helped along the way by the need to form a coalition government. One of the leaders of the key parties was an openly gay man who insisted that a pledge to enact marriage equality was put into the coalition agreement. So everything was aligned in 2001 to make this to happen first in the Netherlands.’
Twelve of the further 15 countries that have legalised same-sex marriage since then are in Europe and include Spain and France, where religious opposition through the Catholic Church was strong. Both countries already had an alternative status for same-sex couples and marriage equality was also part of the Socialist Party’s platform in each nation. Although there was a bitter fight over the issue in France, ultimately Socialist governments legalised same-sex marriage in both places (Spain in 2005, France in 2013).
In the United States, the roots of the campaign for marriage equality go back further than the first legal challenges in the 1970s, says William Eskridge, professor of Jurisprudence at Yale Law School.
‘Well, culturally you can see stirrings of marriage equality as early as the 1950s, when lesbian and gay couples, some of them long lasting and some of them raising children, began to form. Some of them—a very small minority, admittedly—aspired toward legal recognition of their unions, which in the 1950s and the 1960s was at best a pipe dream, and at worst a delusion.’
In the 1970s, however, after the famous Stonewall riots of 1969, lesbian and gay couples became much more open. More of them came out of the closet not just as lesbian and gay individuals, but also as committed partners.
Same-sex marriage activists scored their first significant legal success in the state of Hawaii in 1993 when the Hawaii Supreme Court suggested in the case of Baehr v Lewin that the denial of marriage to same-sex couples might be sex discrimination, forbidden under the Hawaii constitution.
The success of the Hawaii case generated a nationwide backlash against marriage equality, which culminated in 1996 with the adoption—by a huge, bipartisan congressional majority—of the Defence of Marriage Act. This law protected states against recognition of same-sex unions and locked in the permanent exclusion of lesbian and gay married couples from spousal obligations and benefits in the federal laws and regulations.
As in Australia, American family and marriage law exists on both the state and the federal level. In the years following the US Defence of Marriage Act, although most states passed constitutional amendments against same-sex marriage, many, like California and Vermont, also passed bills recognising the ongoing committed relationships of gay and lesbian couples.
A seismic shift occurred in 2003, when the highest court in Massachusetts decided that it was unconstitutional for the state to keep same-sex couples from marrying. Since the first marriages in Massachusetts in 2004, the US battle over marriage equality has taken place at the state level, with judgments in state supreme courts, bills passed in state parliaments and changes to state constitutions, sometimes through citizen-initiated referendums.
In 2009, the US Supreme Court began hearing a number of law suits and ultimately, in 2013, struck down a significant part of the Defence of Marriage Act, although it stopped short of determining whether gay Americans had a constitutional right to marry.
After that Supreme Court decision, couples and their lawyers filed lawsuits across the country. Courts began to rule that they could not see any reason to keep same-sex couples from getting married and that therefore it was unconstitutional to treat same-sex couples differently.
As a result, by October, 2014, the number of states that allowed same-sex couples to marry doubled, rising from about 15 to 30. Ultimately, however, some appeals courts decided to uphold some states’ bans on same-sex marriage. At that point, the US Supreme Court agreed to hear appeals against such bans in Kentucky, Ohio, Michigan and Tennessee.
Oral arguments were heard in April and a decision is expected later this month. If, as expected, the court finds bans on same-sex marriage unconstitutional, it will effectively legalise it nationally.
In the background to this long legal process, there have been enormous social and cultural changes in the US.
‘When I look at what’s been happening and the things that seem to make a big difference, some are clear-cut, like in 2012 when President Obama announced his support for same-sex couples having the right to marry,’ says economist Lee Badgett. ‘That kind of leadership and his example really was a game-changer I think. LGBT people in the US are also much more visible; there are lots more characters on television shows, there are many more famous people coming out who are public figures.
‘I think there was just a big cultural conversation, and as more and more states started to allow same-sex couples to marry, the main kinds of images that we would see in the news media were happy, excited couples who were thrilled to be able to get married. Those people have families and they have neighbours and they have co-workers, and when people saw them get married sometimes literally right there at their wedding ceremonies, I think it just got harder to think that this is something that’s going to bring down civilisation.’
Public opinion polls show that a majority of Americans believe that lesbian and gay couples who want to get married ought to have the same rights as straight couples, although about a third of the country is opposed. There is also marked regional variation. In the Deep South, for example, the numbers do not reflect the national figures.
‘I’d also make a generational point,’ says William Eskridge, ‘and I’m sure this is true for Australia as well. Older Americans tend to be unenthusiastic about marriage equality—divided. Americans under the age of 35 are overwhelmingly either in favour of marriage equality or okay with it. That’s a phenomenon that has driven a remarkable about face in American public opinion. Younger Americans are overwhelmingly unimpressed with the arguments opposing equal treatment for lesbian and gay committed couples.’
Ireland recently became the first country to legalise same-sex marriage by popular vote.
‘For me the main issue was the relationship between culture and politics and society,’ says Professor Tom Inglis, a sociologist at University College Dublin. ‘Irish culture has changed over the past decade or so and people are no longer bound by or fearful of church teaching. They are willing to make up their own minds as to what is right and wrong independent of the dictates of the church.
‘That’s not to say that the church is not a meaningful institution in the lives of Catholics, but it is at a level of a cultural heritage. People still like the feel of the church, particularly when it comes to ceremonies such as baptism, confirmations, marriages, funerals and so forth.
‘Politicians no longer feel it is necessary to be card-carrying Catholics in order to get elected. Most politicians didn’t actively take part for a yes vote or for a no vote. They stood on the sidelines and it was the same thing, actually, within the Catholic Church. Those priests with a younger congregation did not want to alienate those people by coming out with a strong exhortation to vote no. It was also a very civilised debate. There wasn’t any attempt to denigrate homosexuality.’
In Australia, support for marriage equality is also strong. A Crosby Textor poll commissioned by Australian Marriage Equality a year ago found that 72 per cent of Australians want same-sex marriage legalised. Given this level of support and the ease with which marriage equality was legislated for in countries similar to Australia—New Zealand, Canada and the UK—why hasn’t it happened here?
In 2004, it became a matter of public debate, sparked by reform in Canada, where Australian same-sex couples had begun to marry in 2003. On return to Australia, they asked the courts to recognise their overseas marriages. John Howard, then prime minister, saw this is as a danger to the traditional institution and his government introduced the Marriage Legislation Amendment Bill, incorporating the words —‘the union of a man and a woman to exclusion of all others’—into the Marriage Act and the Family Law Act. At the time, the Labor Party supported the amendments.
‘The centre left of Australian politics was slow to pick up on marriage equality as an important issue,’ explains Rodney Croome, the national director of Australian Marriage Equality. ‘It wasn’t until 2011 that the Labor Party changed its policy to support same-sex marriage and, even then, a conscience vote was allowed for MPs, which really, in terms of centre left parties in the western world, is unprecedented. I think the difference in Australia is that there is a minority of MPs in the Labor Party who are staunchly Catholic and are holding the party back on this issue.’
At the beginning of June, Opposition Leader Bill Shorten introduced a private member’s bill in the House of Representatives which would amend the Marriage Act, replacing the words ‘man and woman’ with the term ‘two people’. Shorten has offered to withdraw his marriage equality bill if the Liberal Party introduces its own.