You are not a homophobe, but you are wrong: An open letter to Katherine Harper

Julian Gutierrez
Aug 25, 2017 · 5 min read

Dear Katherine Harper [“As a 30-year-old woman, everyone expects me to vote ‘yes’. But I won’t be”],

You are not a homophobe. You are not a hate preacher. You have laid out your opinion on the topic of gay marriage in a way that suggests you are a reasonable person, acting in good faith, who bears no ill will towards homosexual people. I hope that you will see my arguments against your position as a similar act of good faith.

Despite the noises from some on this topic, the forthcoming postal survey is not about whether marriage itself is a “right”. It is about changing a thirteen year-old law to make sure that all couples, whether hetero- or homosexual, have equal access to formal recognition of their relationship as “marriage”.

Currently, the Marriage Act 2004 specifically discriminates against same-sex couples by defining marriage thus: “Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

Whether you consider marriage a “right”, or a privilege, or some other concept, the fact remains that marriage is formally recognised by the law in Australia. When a heterosexual couple marries, they receive a legal document from the government in the form of a marriage certificate.

On the other hand, while a same-sex couple may live their union in precisely the same way as the heterosexual couple, committing to and celebrating it in the presence of family and friends, the government will deny them a marriage certificate. In this sense, the same-sex couple’s “marriage” is denied recognition by our legal system solely on the basis of the sexual orientation of the individuals involved.

You are right when you say marriage is not “the sole means of bestowing the legal rights of a relationship.” Currently, same-sex couples in Australia can, at best, be recognised by the law as “de-facto”. That is, though they may potentially enjoy some of the legal privileges of married couples, they must first go through the rigmarole of proving their relationship status to the government. This stands in contrast to a legally married couple who would simply present their marriage certificate to access these privileges.

When would this matter? In the event of a tragic accident, that results in the death of your partner, could you imagine being the surviving partner and having to go through the process of proving your relationship? This could take weeks or even months. It could delay or deny you the ability to contribute to funeral arrangements, or access Centrelink bereavement payments, or superannuation, or financial accounts, or life insurance.

Granted, a heterosexual de-facto couple would go through the same process, but the point is that, as the law stands, they do have the option to marry if they choose, thereby obtaining the marriage certificate that makes all these problems go away.

The Act goes on to be even more specific in its discrimination: “Certain unions are not marriages. A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia.

So even a same-sex couple who wed in Ireland, or in the USA, or in England, would have their relationship downgraded to de-facto if they migrated to, or even visited Australia. The potential consequences of this discrimination are well-documented.

This kind of discrimination by the law is inconsistent with most other laws and societal norms that, rightly, do not discriminate on the basis of sexual orientation, gender, race or other immutable characteristic.

It is not fair to say that the exclusion of same-sex relationships in the definition of marriage is “too much change to the core fabric of Australian society…”. The Marriage Act’s definition has only been in place since 2004, when it was introduced by the Howard government. Before 2004, there was no definition of marriage in the act.

I appeal to your senses as someone who was brought up with liberal values. What business does the government have in specifically intervening to deny homosexual people access to the same formal recognition of relationship given to heterosexual people? What business does one section of society have in restricting how another section live their lives?

To give you an example of a “bedrock of Australian society”, here’s part of Chapter 5, Section 116 of the Constitution of Australia: “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion…” So what business do activists such as the Australian Christian Lobby have in the lives of same-sex couples who wish to marry under civil law? To be clear, churches are not being asked to marry gay couples. Nor should they. They should be free to practice their religion without meddling from the government.

You “wonder what ethics will arise to compete with the Christian values of hard work, selflessness and community.” I would ask, are these exclusively Christian values? Have we not seen, and do and will we not see, every day, the results of the hard work, selflessness and community put in by the multitudes of immigrants to Australia from non-Christian countries? Have those Australians who no longer practise any religious faith somehow given up on these values?

What I’m not OK with is the shutting down of our right to sensible public debate and considered decisions.” You are absolutely right to not be ok with this. I’m not ok with it either.

I certainly grant that some proponents of marriage equality have engaged with this topic in a far less-than-graceful manner. Indeed, in some quarters it has been downright disgraceful. You’ll find no argument from me that this behaviour is extremely unlikely to change anyone’s mind.

But I would implore you not to respond to the behaviour of a small minority of activists with a “No” vote. I implore you to defeat those who seek to shut down debate by continuing to contribute to the public discussion in the very reasonable way you already have. And, in the tradition of another great bedrock of Australian society — the fair go — I implore you not to take out your rightful annoyance with these activists by punishing a broader set of Australians. Homosexual Australians are people who would simply like to enjoy the same recognition of their relationships as every other Australian is able to enjoy.

With this in mind, I respectfully ask you to change your intention, and vote “Yes” on the postal survey.

Sincerely,

Julian Gutierrez

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