PPAU Policy: Marriage (revisited)

Policy
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Here is our current policy:
https://pirateparty.org.au/wiki/Platform#Marriage

The gist is that we take the term “Marriage” 100% out of law and replace it with the word “Civil Unions” (which is legally the exact same thing but available to any couple).

As much as I 100% agree with most of Pirate Policy policies I think that on this one we missed the mark (which really bugs me) and I fear that we could end up on the wrong side of history on this one.

I agree that ideally (like in a utopian world) that the State should not be involved in the Marriage business. However, given that the the State is already in the Marriage business (since at least 1961) and a big deal has been made of it, it would be an injustice for the Government to pull out without offering same-sex/intersex couples the same option to also get “Married”.

The current PPAU policy addresses this from the perspective that technically (in legislation) everyone has the same legal rights as Marriage but under the “Civil Union” name (which would be equal going forward, as all couples including hetrosexual now become Civil Unions).

However this policy as simple as it might seem has one major flaw: Giving it a different name other than “Marriage” is a huge insult to Same-sex/Intersex couples who want to get MARRIED. This is a big deal and not in line with our principals of non-discrimination.

By giving it another name you denying people the right to a “Marriage” in name (and the baggage that that specific term means). A “Marriage” in it’s current name is important for a number of reasons:

  1. Everyone (before a currently proposed Civil Unions come in) gets a “Marriage” but same-sex/intersex couples miss out on Marriage completely. It does not address past wrongs.
  2. Same-sex/Intersex couples would feel like they get a second-rate “Civil Union” instead of a full blown “Marriage” that they deserve.
  3. A “Civil Union” and a “Marriage” is not really the same because the terms have different connotations - they mean different things - even if the actual law behind the two is the same, many Australians don’t look beyond the name of it.
  4. Having CIvil Unions does not really cause the state to exit the Marriage business completely. This Civil Unions business is just as bad because the state really should have no place to dictate the terms of our personal relationships at all.
  5. Calling Marriage by another name would only be to appease anti-Same Sex marriage supporters, it’s like giving in to discrimination.
  6. The institution of Marriage (from an acknowledgement by the state perspective that it’s a “Marriage”) is very important to a lot of people.
    • Now I don’t necessarily agree with this because I don’t want the government up in my business, but some people actually LOVE the government itself (not necessarily the party in charge). They fill in their census papers with glee. Following government orders/laws feels like a national service to Australia (like Australia = Australian Government) and in return they feel special when the Government acknowledges them in a letter, or a census or their Marriage. It’s like saying “On behalf of Australia, congratulations on your marriage we are so proud of you here is your certificate”. I don’t care for this myself but for some people having this recognition from their Government is very important.
  7. The institution of marriage is actually quite antiquated for many modern couples, including Hetrosexual couples, who increasingly are having families without getting married even though they would be eligible to do so. They just don’t believe in it.

The solution:

  • Comprehensively review all other legislation to remove references to the Marriage Act. Laws should only take into consideration De-facto relationships.

    • For example, Centrelink and the Family Courts don’t even take marriage into consideration on it’s own, only if they are in a relationship, a de-facto relationship already carries the same weight as marriage and it’s not necessary to formalise the relationship in the eyes of the law.
    • The law needs to catch up that there is no real-world difference between Marriage and De-facto. “Marriage” traditionally has the expectation of monogamy and aside from the obvious point that the government should have no business in who we sleep with, the traditional expectation doesn’t even hold any weight anymore as it’s common place these days for Married couples to be non-monogamous and for non-Married couples to be completely monogamous. There really is no point in legally making special treatment for Married couples over De-facto ones.

  • Marriage Act should be maintained in it’s current name of “Marriage”

  • Marriage Act should be opened up to Same-sex couples and people who are Intersex (obviously)

  • Marriage Act should not compel any celebrant to perform any Wedding they don’t want to (which I believe already is the case)

  • Religious Institutions are completely free to completely ignore the Marriage Act, like it is totally meaningless to them.

  • If the couple wish to have something inscribed on their Marriage Certificate (i.e. “Under the rites of Christianity”) this legally has no meaning under law except for novelty purposes and who can put it on there.

    • For example, there could be a list of “approved clauses”, which religious institutions can nominate and providing that all conflicts are resolved on naming rights, then can also control who gets to use their clause or not.
    • Such areas of control include which couples can use it (even if discriminatory). Maybe the couple seeking it isn’t even part of that religion or aren’t adherent. Maybe they don’t want individual priests using their name against their own policy. Maybe they just want to reserve their name and not let anyone use it because they reject the use of the Marriage Act.

  • Marketing Exercise to make clear that nobody is obligated to have a Legal Marriage under the Marriage Act and it does not prevent them from having a religious marriage under the terms of their religion without being registered with the state (as already is the case)

    • Religions which don’t believe in SSM should be ecstatic that the government is not regulating what they can do. Particularly with religion on decline the last thing they would want is for regulations and other beliefs to be pushed onto them by anti-religion folks.

  • A separate “Civil Unions” Act which primarily acts as a bridge for in case legal recognition of marriage is required by another country. The requirements between the two are almost a complete copy of each other. This would be useful for a couple who may be religiously married or just de-facto but not legally married, but might need some kind of recognition for some purpose in another country, or still crave some kind of recognition of their marriage from the state but don’t believe in the government “marriage” (i.e. because it doesn’t match their definition of marriage, or just don’t want to get “Married” yet even though they are already de-facto), or maybe they want to be both Married and Civil Unioned. Totally optional and opt-in to do this at all. edit: and a clear definition on “who is de-facto” can be slipped in there too (based on current Centrelink relationship test criteria)

Under this way there is absolutely no downsides for a religious institution to not to accept the “Marriage Act”. In practical terms Religious Marriage can either be De-facto or registered as Civil Unions for legal purposes - but without any conflict in naming. Same-sex & Intersex couples get full blown Marriage rights (as well as Civil Union) and absolutely no discrimination in any part of the law. They get a good feeling inside that the Government approves of their Marriage. Even not being married at all (religiously/legally) but in a committed relationship gets full treatment under the law.

edit: the new Marriage Act could be also be renamed to something like “Marriage and Equality Act” so that it

  1. still defines “Marriage” in law, but further buffers it from the old “Marriage Act” to make it clear that it’s a new leaf from the old policy and also makes it easier for religious folk to distance themselves from this new legislation (which is totally optional).
  2. There would also need to be some provisions to allow people (who might object to the new Act) to not continue their legal Marriage originally made under the Marriage Act 1961.
  3. Also include something in there which acknowledges LGBTI couple issues but I don’t know what exactly.
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No, that is not the gist at all.
It’s not a rename.
We are cleaving it in two.

We are saying that the government should never have been involved in defining your marriage; that what makes a marriage is and has always been between you, your partner, and maybe your religion and your god.

You still get to call it a marriage or whatever other name you damned well please, because that is your business, not the governments.

The flip side, is that there are certain legal implications to a union of two people that may be rendered more simple in law by a formal declaration that you are indeed a couple. This is a civil union, and it’s legally more clear than defacto assumptions.

On a final note, you may notice that we did not declare that civil union were to be exclusive. Make of that what you will.

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It says:

Replace the Marriage Act 1961 with a Civil Unions Act

They shouldn’t have, but now it’s too late, it means a lot to many people now so The Marriage Act needs to stay as The Marriage Act, or at least have the word “Marriage” in it to recognise that the Government has taken on the task of determining (in law) who is “married” and who is not (not who is civil unioned or not). If they relinquish this task of controlling marriage in law then that is not fair to all those who have missed out “marriage” when marriage was still something they offered.

Agree 1000% and this point is being severely under-marketed.

The flip side, is that there are certain legal implications to a union of two people that may be rendered more simple in law by a formal declaration that you are indeed a couple. This is a civil union, and it’s legally more clear than defacto assumptions.

These implications should be determined and stamped out without relying on Marriages or Civil Unions. If De-facto is not clearly defined then it needs to be, because what is clear is that we can no longer rely on Marriage (or Civil Unions) to act as a clear indicator of “who is a couple”.

Many long term committed couples are no longer getting married at all in this modern age, and we can’t rely on them to register their relationship for legal purposes.

“Marriage” a determination of relationship status was a simple/crude solution to social problems in a bygone and primitive era. For Example, before DNA tests “marriage” could be very useful tool to assume paternity of a child is the husband by making it taboo for the woman to sleep anyone else.

Thankfully personal freedom and liberty has gained traction and arrangements like FWBs, Swinging, Co-parenting and just plain old long-term couples who never actually “tied the knot” are quickly becoming commonplace. (Which by the way, goes against so many religious values, but it’s not up to Religious Institutions to force onto everyone else anymore, and that’s the reality of what’s really happening in Australia. Marriage is essentially obsolete to many couples).

From a more practical sense for the party, Marriage Equality in The Marriage Act is going to happen eventually (even after this current government stalls it for as long as possible, it will come in a future government), and if we still have a policy that is still calling for Civil Union after this already happens, it will make us look unaccepting of Same-sex/ couples who got what they wanted (full blown Marriage rights), but we are bitter and would want to take that landmark win in recognition away from them. (which is probably not true knowing that the Policy was written before SSM, and also denies their landmark win).

It’s kind of like Mabo (Native Title Act) which is a landmark case for Aboriginals to recognise the aboriginal system of land ownership as valid in the eyes of the law.

It would be like the Pirate Party making a policy that Aboriginal land ownership should not be recognised in Law because that would be legitimising Australian Law, when they should not be subject to Australian Law because they are here first.

Maybe that’s a point, but I guarantee that you would upset a lot of people by taking away the recognition which they worked so hard for to achieve.

Even if it’s a law that the government should not have power over we still need to make it fair, but just remove the overreach of power in it.

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Why would this be? If the marriage act was gone, intersex couples could get a full blown marriage any time they wished, and it would be no less valid than anyone else’s. Marriage would go back to being a common right, like free speech, that’s available to everyone.

There’s no particular reason why one group should be able to own marriage and put walls around it. There’s also no particular reason why the government should be needed to validate someone’s union.

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In a perfect world Marriage would have never been a legal instrument, I don’t disagree with the person in the picture, but what I’m saying is that it’s too late to go back.

My vision for a new Marriage Act is essentially one of being for ceremonial purposes. It would have no teeth to carry any legal weight outside itself, the “walls” required to enter it are stripped down to bare minimum and it’s optional - either on an opt-in or opt-out basis (edit: and it’s already possible to have a Marriage Certificate made “with the rites of [religion]” so it would be possible to have marriages made under certain religions to be opt-in to the new Act and others to be opt-out)

If were to even attempt to roll back marriage from law, then all that Civil Union stuff has got to go too and just make a De-facto definition when it’s needed for other legal reasons… which is what I’m advocating for (but unfortunately we can’t control other countries who expect us to have a common law formal registration of marriage to interface with their laws, so a Civil Union would still be needed for that)

Here’s another quote you can make into an image:

Would you go, “People of the hating gay people club, our exclusive club codified in law which discriminates against gay people has had a good run for over 50 years. We have had a good run in making the gays angry about not being able to get into it because they think that we’re all about “love”. Since it looks like we won’t be able to keep the club running like this for much longer, let’s dismantle it than to ever let a gay person ever get in!”
– Simon Gnieslaw

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Replace the act, not marriage.

Marriage is and always was between people, and maybe their religion/god. The Australian government does not own it. They have to right to it. The government has no business telling us what it may or may not be to us, and they can damned well stay out of our bedroom.

This is a fundamentally libertarian stance.

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There is a need for registration for some state services - like couple’s payments, legal arrangement for the purposes of wills and so on. A civil union allows for this, and because civil unions are a concept invented by the state for this specific purpose, there is some validity for the state to be involved.

It is state takeover of marriage that I object to. No political party or religion should be acting as gatekeeper over rights that we have collectively inherited from the dawn of our history. And, again, removing marriage from state control does “let gays in”, along with everyone else. This is better than having the political class selectively extend permission to gay people to marry while continuing to leave others out in the cold.

Why is it “too late to go back”?

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People excluded from marriage by our overreaching government have specifically complained about cases like being excluded from the death bed of their loved partner, because the hospital had no way to know that they should override the will of other next of kin who did not like the relationship. What are they going to do, a quick evaluation of whether your defacto relationship is real? No, that’s not practical. By declaring your intentions ahead of time, these cases are clear, and institutional decisions can be made on the spot.

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Then it is no longer a matter of law, and has no place in legislation.

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Registration can not be relied upon. It could even be plausible that there could be a hetrosexual couple that does not get married despite having never ending love for one another, because they found some loophole which gives them a benefit which makes it advantageous to not be married in the eyes of the law.

For all those examples you listed, a Civil Union (hopefully we provisions for De-facto for people who don’t want to register) could be an appropriate instrument to use (as could other instruments). I have no problem with that. But those would be merely legal instruments to exercise a legal function, not a declaration of love in the eyes of the state.

This is less about law and more about love, with the blessing of the country (as opposed to a blessing of a deity, or nobody else’s blessing for an atheist couple).

Because people crave government recognition. It’s not equal for the government to recognise some but not others.

The name of it is important, not just the legal meaning.

I would be fine with having an Equal Marriage Act and then phasing it out in the future because government shouldn’t really be in the marriage business at all.

But it is essential to correct past wrongs in law by making it right in law.

For example: Aboriginal and Torres Strait Islander Peoples Recognition Act 2013

Perhaps there is a fundamental point in that, but by the same logic we should add repeal of Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 to Indigenous policy. I’m sure that would go down well /s

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Then it’s our Pirate purpose to teach them what freedom looks like. Stop craving approval from your master or it will always be so. Instead demand your rights back.

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Even if the legislation has no effective power over you anyway and it’s only purpose is to make a lot of people feel better who actually care about that sort of thing while those who don’t care about it can simply ignore it?

(I don’t necessarily disagree with your stance, it’s just a matter of how far is it worth going in the principle of it)

It’s a point that should be taught but not something even remotely realistic that everyone would agree on. Not everyone has pirate values no matter how awesome it is and some people like Laws and Government.

It would be hypocritical of us to force our values onto others.

For us, no Marriage legislation wouldn’t mean much.

For others, it could be a life changing experience.

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As much as this non-legislation might look like a friendly veil of government approval, it would also stand as a veil of government authority over your personal life. A veil, behind which to construct the next round of control.

So, no.

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I don’t see how an entire optional construct could have any authority.

If the Marriage Act was completely repealed, whose to say that a future government wouldn’t just reinstate it. It really doesn’t change anything. I’d rather have something which sets the benchmark.

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Sets the benchmark for an oppression that should not exist.

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How is some harmless legislation oppressive exactly?

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I’m loving that you are having vision.
Please keep doing that, and telling us about it.
Please also keep challenging.
That’s how free people behave.

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It stakes their claim to the right to interfere. It says they are involved and an important part of the process. It’s like claiming divine rights over peoples lives. It’s symbolic.

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likewise to yourself.

I agree with your stance.

It’s just that I think that on this issue more weight should be placed on people’s feelings/well-being over libertarian ideals of less government (where every piece of legislation no matter how harmless = more government).

Extreme Libertarianism isn’t even part of Pirate Party Principals:

  • Greater protection for speech, privacy, and personal sovereignty;
  • An end to the encroachment of stifling intellectual and state monopolies and creation of a freer and more participatory culture;
  • Educational reforms with a focus on developing creativity and life skills;
  • State systems which embody principles of secularism and non-discrimination;
  • Improved government transparency and a re-casting of state institutions: we seek a state which supports and enables, rather than one which controls and constrains;
  • A simpler tax code and basic income guarantee which removes disincentives from the poor and increases the rewards for work, enterprise and efficiency;
  • Greater transparency and respect for human rights in our international engagement;
  • Investment in digital connectivity, community-based clean energy generation, and a strong national science plan - the critical components of an innovative 21st century economy.

I see it more as inviting the government into your personal life because you want them to be there. As I’ve said, many people are already skipping marriage on purpose and thus the clasp of government in their relationship. I think that it’s very important that Marriage is kept optional.

Unfortunately at the time that I got married (under religious rites which I willingly entered into) I thought that it was a legal requirement to send marriage forms into VIC Birth Deaths and Marriages. If I knew then what I know now I would have skipped the Government bit and kept it strictly between my wife, I & our god (who we choose to bring into the relationship).

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Ahem. This is nowhere near extreme libertarian.
This is personal sovereignty. Right there on the first line.