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Why the same sex marriage debate will never truly end

In the end, they sang from the balconies. The House of Representatives had just voted resoundingly in the federal parliament in favour of changing the Marriage Act to allow same sex marriage.

After a long day in the public gallery, those gay marriage supporters who remained broke into song. Not the national anthem, as you might expect, but I am Australian. Following years of public debate, a $122 million non-binding plebiscite, a long parliamentary debate, and with politicians looking up from the floor, same sex marriage supporters sang and created a moment that was replayed by news outlets around the world.

Australia is now the 26th nation to legalise same sex marriage, joining countries such as Canada, Norway and Mexico.

Following the vote, Prime Minister Malcolm Turnbull expressed his pride that the decision came under his watch, invoking the 1967 referendum that recognised Indigenous Australians as full citizens.

But what happens next, now that same sex marriage is legal?

In the same ABC interview in which the Prime Minister expressed his pride, he could not help taking a swipe at his Labor opponents noting how they had ‘six years in office and did nothing about it.’

‘And of course, they [Labor] did everything they could to stop every Australian having their say and that was really bad,’ he told the 7.30 Report’s Leigh Sales.

Deakin University business and law lecturer Dr Chris Mahony says building a culture of human rights, unity and social cohesion is one of the key challenges following the same sex marriage plebiscite and parliamentary vote.

'Any commentator who would say this is the end of the discussion, that would raise a red flag about their credibility in my view.'

Dr Chris Mahony,
Senior Lecturer, Faculty of Business and Law, Deakin University

Dr Mahony, who is also working for the World Bank Group, says while a nation can change its laws, if there is not the political will from government and public support, then you can have a law that is not reflective of people’s experience.

And he cites the example of when South Africa turned its back on apartheid. In the aftermath, the African National Congress government brought in a new constitution that was very progressive. It embedded economic and social rights, such as the right to housing. It also introduced protections for the LGBT community and embedded them in the constitution, but those rights for ordinary South Africans didn’t manifest because they didn’t enjoy broader support across the population.

‘You still had these widespread practises of attempts to convert, forcibly convert people from same gender sexual orientation,’ he says.

What will change after the same sex marriage vote and what’s to come?

For once in the same sex marriage debate, the legal questions are relatively easy. Now the legal definition of marriage in the Marriage Act 1961 has been changed from being a ‘union of a man and a woman’ to a ‘union of two people’.

  • Same sex couples who have already married overseas will have their relationships recognised in Australia.
  • Attorney-General George Brandis has said couples must give a month’s notice of their intention to marry, so the first same-sex weddings will be able to happen from 9 January.
  • A church or other type of religious group that does not want to conduct a same-sex marriage, is not required to.
  • Australian Defence Force chaplains will also be able to refuse to solemnise a marriage.

One of the key issues that remains in dispute is that of protections for religious freedoms or ‘religious exemptions’. The so-called ‘baker debate’ questions whether a baker who is opposed to same sex marriage can refuse to make a cake for that wedding. This ‘freedom’ to refuse service is weighed against anti-discrimination laws that prevent businesses discriminating against people based on their sexuality.

Conservatives in parliament pushed for amendments to the same sex marriage laws so that religious freedoms would be protected. Opponents argued that allowing the baker to object would take away the newly won civil right allowing gay marriage.

In response, Prime Minister Turnbull appointed former Liberal Minister Philip Ruddock to investigate whether religious freedoms would be protected, with his findings to be handed down in March.

But Dr Mahony say legal questions around freedom of religion are inherently difficult as religious beliefs are inherently subjective as ‘they are beliefs not knowledge’.

‘The law itself, if it were to specifically say if you were to wish to withhold a good or service from a consumer based on their sexual orientation then that law in and over itself would be discriminatory, because it would elevate a subjective belief above and objectively identifiable right,’ he says.

So, is the same sex marriage debate over?

No, according to Dr Mahony. When you have a conclusion to public dialogue, such as that over gay marriage, social cohesion is not a binary thing. You never get to a situation of complete inclusivity, he says. And societies never completely move to a situation where you can say ‘now we are a tolerant inclusive society devoid of prejudice’, because ‘prejudices are developed within human being based on their own lived experiences and that’s going to change from generations’.

‘Any commentator that would say this is the end of the discussion, that would raise a red flag about their credibility in my view,’ Dr Mahony says.

And this is where building a culture of inclusion is critical, he says, ensuring people have rights not just in law but also in terms of their lived experiences.

‘The Yes vote is a caution against complacency and the next steps are about taking that symbolic step forward and using it to justify the many other steps that need to be made incrementally to build inclusion over a long period of time,’ Dr Mahony says

And part of that culture building, Dr Mahony argues, is a public education campaign. But he warns against a box ticking exercise or ‘victory lap’ saying any campaign must be drive inclusion and drive authentic dialogue with both sides of the arguments.

‘A binary point of no return has not been traced because law is enacted. Changing behavior and attitudes takes persistent effort, and often, a lot of time,’ Dr Mahony says.

Interested is studying about human rights and discrimination? Consider the range of law degrees at Deakin University. 

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Dr Chris Mahony
Dr Chris Mahony

Lecturer in Law, Faculty of Business in Law, Deakin University

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