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On my mind

19 October 2015
The marriage equality debate

Human rights advocate Senthorun Raj (BA(Hons) ’10 LLB ’13), talks about the marriage equality debate and different ways to recognise relationships.

I have spent almost a decade at the University of Sydney. From studying for an undergraduate Arts/Law degree to working on a PhD, I have been interested in the way academic work can reach beyond the institutional walls and strengthen our communities. My current research into law reforms designed to remedy violence against sexual minorities brings together my personal and political passions. I am – as others have jokingly described me – a “professional gay”.

From the age of 10, I was insistent I would study law. This had less to do with the finnancial or intellectual privileges of the profession and more to do with my desire to mimic the camp flair of the attorneys I had a crush on in television series Law and Order: SVU. When I came to university, discovering gender studies not only provided an intellectual solace for “coming out” as a gay man, it also transformed how I thought about my legal studies. As I became more involved in gay rights advocacy, I began to wonder whether the legal system – with all its promises of justice – inhibited or instigated social change.

This wondering has emerged in my research and advocacy on marriage equality. To begin with, I am inclined to support reforms that guarantee formal equality before the law. I think it is safe to assume that many people share that general inclination.

In a country where marriage is governed by secular laws, it is troubling that religious opinion continues to be cited as a reason to deny same-sex couples the right to marry.

Marriage is a dynamic institution. The proposition that marriage is a ‘natural’ phenomenon ignores the fact that the institution has been culturally and historically mutable. No longer does the law regard the legal personality of women as ‘covered’ by that of their male spouses nor does it provide men with immunity from criminal laws if they rape their wives.

Marriage does not mandate procreation and it certainly does not guarantee it. Claims that children will be “forced” to have two parents of the same sex also ignores the current situation in family law that recognises same-sex families (with the exception of adoption in a few states). Even if marriage were solely designed to provide stability for children, why then deny this purported stability to children being raised by two men or two women?

There is also little “sanctity” in a marriage definition that forces transgender people to divorce before having their gender identity legally recognised, or erasing intersex people from recognition entirely.

In navigating the opinions of those opposed to marriage equality, the public is often implored to “respect” the views of both sides. Respect is seen as the currency of civil debate. However, there is nothing “respectable” about shielding bigotry from critical scrutiny. Arguing that same-sex parenting is child abuse or that it creates a new “Stolen Generation” is not a demonstration of respect (let alone historical accuracy). Using religion as a cover for claiming homosexuality is an illness or sin is demeaning. Vilifying people on the basis of who they are or whom they love is dangerous.

Rebuttals responding to these arguments in favour of “traditional marriage” are quite simple. Yet, on the flipside, I’m also sceptical about some of the broader claims about social acceptance that are made in the push for same-sex marriage.

Homophobic or transphobic violence, discrimination, vilification and harassment are sadly still pervasive realities for many people. Positioning marriage equality as the “major issue” (or worse, the “only issue”) queer communities face obscures other institutional forms of inequality. Marriage equality does not provide refuge to transgender people who have been kicked out of home or have fled from domestic violence. Relationship recognition does not create inclusive classrooms or aged-care facilities that do not shame or stigmatise people for not being “normal”. Marriage does not stop us caging or returning asylum seekers to countries that criminalise homosexuality.

I do not wish to understate the enormously symbolic and emotional importance of marriage equality. I myself often fantasise about having a glitter-infused queer Hindu wedding. Yet we risk forgetting about the broader challenges for social justice by positioning marriage equality as the panacea for our homophobic ills.

In thinking about social justice, I am reminded of the people in our community who danced and rioted in the streets of Sydney in 1978 to resist moral persecution. They were not fighting for inclusion in the existing social system – they were disrupting it. They helped to highlight that love, intimacy, and kinship manifests in bonds that go beyond conjugal heterosexuality. It was not about marriage then. It was about building liberated, thriving, and mutually supportive communities for all people.

So, as we start rethinking marriage laws, it is also important to rethink how we recognise relationships. Fortunately, in Australia, people do not need to be married to secure rights, entitlements and obligations as a couple. Yet the elevation of marriage as the relationship archetype erases the many non-marital relationships that are secure and loving. Some even characterise unmarried, non-monogamous, or single people as deficient.

In an effort to claim equality, we must not dismiss “lifestyle choices” that do not mimic our own. The tensions that emerge in my activist, advocacy, and academic pursuits on the matter are not easy to resolve. However, by being mindful and critical of these frictions, I find the space for justice and community very promising.

Senthorun Raj is an advocate and academic working in the areas of criminal justice, refugee law, legal theory, and human rights. He is currently completing his PhD and teaching at the University of Sydney Law School.