The 98 to 42 defeat of the Marriage Equality Bill in the House of Representatives this week has almost been overshadowed by the circus that surrounded the lead up to the vote, including Liberal Senator Cory Benardi's vile comments regarding bestiality, and Nationals Senator Ron Boswell's offensive remarks about same-sex parents.
But perhaps that is the way it should be, for there are multiple Bills relating to marriage equality in both the Federal Houses of parliament as well as at the state and territory level. The defeat of one Bill is just a minor hiccup in the unstoppable march towards marriage equality in Australia.
Our current raft of federal politicians seem to be out of touch with the views of mainstream society. Consistent polling finds that the majority of Australians support allowing same-sex couples to marry (around two thirds were in favour of marriage equality in the most recent poll). It is these figures that give marriage equality advocates confidence that change will happen, albeit not as soon as they might like.
None of the four Marriage Equality Bills at the federal level appear destined to be passed in the short term. Therefore, the best hope for marriage equality in the near future looks to be at the state or territory level. Late last month, Tasmania's Lower House passed a Marriage Equality Bill (13 to 11) which is due to be debated in the Upper House very soon. The result is likely to be a close one, with few willing to predict which way it will go. The Upper House consists of 15 senators, 13 of whom are independents, and lobbying from both sides of the debate has apparently been intense, with most members of the Legislative Council unwilling to publically disclose which way they intend to vote.
South Australia, the ACT and New South Wales are in the process of preparing similar initiatives to legalise same-sex marriage. There is no doubt that the legalisation of same-sex marriage at a state or territory level will end up in a High Court challenge which will be decided on complex constitutional law grounds about whether the Commonwealth has effectively 'covered the field' when it comes to marriage, or if the field it is seeking to regulate only heterosexual marriage. Leading constitutional law professor, George William's has expressed a qualified opinion that Tasmania's attempt to legalise same-sex marriage would likely be held to be constitutionally valid.
There is certainly precedent for countries to move towards marriage equality in a piecemeal fashion. For example in the United States, same-sex couples are allowed to marry in New York, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia, but the Federal Defense of Marriage Act (1996) means that marriages performed in these states are not regonised by the Federal Government and each state can decide for itself whether it will recognise same-sex marriages performed in other states.
Legalising same-sex marriage on a state by state basis is less than ideal, and comes with many problems. However, if the Federal government refuses to respect the right of same-sex couples to have their relationships recognised in the same way as opposite-sex couples, namely in the secular institution of marriage, then reform at the state level is the next best option. After all, marriage is a human right, not a heterosexual privilege.
Dr Paula Gerber is an associate professor at Monash Law School and deputy director of the Castan Centre for Human Rights Law