...working for equal marriage rights for all Australians

Human Rights Consultation Toolkit

Marriage equality: a fundamental human right 

Marriage equality is one of the most pressing human rights issues in Australia today.

In other countries discrimination in marriage has been removed thanks to strong legal protections for rights like equality before the law.

But, alone amongst western countries, Australia lacks any explicit legal protection for basic human rights.

If we had such protections, our governments would be forced to take discrimination against same-sex couples more seriously.

The Australian Government has established a national inquiry into how the human rights of Australians can be better protected.

We urge you to write to the inquiry in support of a national charter of rights which will enshrine all the rights breached by marriage discrimination.

Please include your own personal account of why human rights in general, and marriage equality in particular, are important for you.

What rights?

The failure of the Australian Government to allow same-sex partners to marry violates a number of fundamental human rights including

• The right to equality before the law.
   

• The right to marry and form a family.
   

• The right to personal autonomy and privacy.
   

• The right to be free from discrimination on the grounds of sexual orientation.

These violations have been recognised by courts in several other countries. These courts have also found that civil union schemes are not an appropriate response to the human rights breaches caused by marriage discrimination.

“Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.”
- Massachusetts Supreme Court

“In contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights.”
- California Supreme Court

"Redefinition of marriage to include same-sex couples...is the only road to true equality for same-sex couples….Any other form of recognition of [their] relationships, including the parallel institution of [civil union or civil partnership], falls short of true equality. This Court should not be asked to grant a remedy which makes same-sex couples 'almost equal', or leave it to governments to choose among less-than-equal solutions.”
- British Columbia Court of Appeal

At the moment no Australian court has the power to consider the issue of marriage discrimination because we have no guarantees of fundamental human rights. It is left to enlightened public leaders to competently but powerlessly make the point.

“(The question of discrimination in marriage) has been addressed by the highest courts in New Zealand, Canada, South Africa and States of the United States. Acknowledging the right of religions to do as they please in their own spaces, upon what principle is a legal civil status allowed to some citizens but denied to others. In a secular nation how can such a denial be justified, except by history or religion? History alone is not a good enough explanation. Miscegenation laws until 1967 denied marriage to people of different races in parts of the United States. The Nuremburg laws in Germany denied marriage between Aryans and Jews. The law can do what it pleases, subject to constitutional and human rights. So we have not seen the end of this debate in Australia. The direction of history, at least in countries like our own, seems to be in favour of the abiding principle of the equality of citizens of all ages, races, colours, creeds and sexualities.”
- Former Australian High Court Judge, Michael Kirby

What you can do?

The National Human Rights Consultation is keen to hear from ordinary Australians whose human rights are breached.

This includes all same-sex partners who wish to marry but can’t, whose overseas marriage is not recognised in Australia, or who may not wish to marry but are concerned about the way marriage discrimination diminishes all same-sex relationships.

You can make a written submission to the inquiry by visiting its website, http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/
Share_Your_Views

You can also make a verbal submission at one of its community round tables. The schedule is here, http://www.humanrightsconsultation.gov.au/www/nhrcc/community.nsf/calendar

To help you write your submission the Australian Human Rights Commission has produced a general toolkit, as well as a toolkit specific to LGBTI issues. They can be found at http://www.hreoc.gov.au/letstalkaboutrights/info.html

In your submission please include your personal story about how the failure of the Australian Government to allow same-sex marriage directly affects you, your family and friends.

Remember, submissions need not be lengthy or written with legalistic language. The strongest submissions will be those that draw on personal experience. As far as possible, include the story of real people.

The deadline for submissions is 15 June 2009.