The politics of difference: posting my ‘vote’ on marriage equality

In the High Court

As I sit in the High Court in Melbourne for the first time in September 2017 to hear the challenge to the postal survey, I am at once struck by the importance of this place and the gravity of the decisions made here, while at the same time, I feel critical of its ostentation and obvious colonial characteristics. The bench, complete with seven high-backed chairs, looms above those of us sitting in the public gallery. The roof elevates from behind us as if in reverence, and a row of windows set high in front filters light from above. The Coat of Arms of the Commonwealth stamps its authority on the wall, incorporating the badges of the states, propped up by the emu and kangaroo. It is confirmation that this court is a legitimate branch of the Australian Crown.

The shuffling of court staff stifles murmurs from the gallery. Around me are plaintiffs, activists, journalists, young lawyers, parents, friends, partners, observers – all keen for proceedings to start. We are in attendance to be witness to this moment, eager to know whether the government will be successful in its push to hold a public ‘vote’ on same-sex marriage. ⁴

In 2004, in retaliation for the increased recognition of same-sex marriage internationally, ⁵ the Howard government (with the support of other major parties) amended the Marriage Act 1961 (Cth) to specify that marriage must be between a man and a woman. ⁶ Since that time, 22 Bills had been introduced into Federal Parliament that addressed marriage equality, or the recognition of same-sex marriages registered overseas. ⁷ Only four of those Bills came to a vote (three in the Senate, ⁸ one in the House of Representatives) ⁹ and all were defeated at the second reading stage. Even though they were introduced by Members of Parliament representing all the major political parties, ¹⁰ none were successful in changing the law.

While the Labor Party had supported a free conscience vote on the issue since 2011, ¹¹ the Coalition required that members adhere to the party position to oppose same-sex marriage. In 2015, at a combined meeting of the Liberals and Nationals, called by Tony Abbott to debate the introduction of the first cross-party Bill on marriage equality, ¹² a conscience vote was again rejected. The Coalition, however, agreed that their position going into the 2016 election would be to put the matter to the Australian people through a national plebiscite. Should the plebiscite favour same-sex marriage, members would be free to vote according to conscience. ¹³

Following the 2016 re-election of the Coalition government, led by Malcolm Turnbull, two attempts to pass legislation to hold a compulsory, national plebiscite failed. ¹⁴ The Opposition opposed the plebiscite because of the potential damaging effects that it would have on the queer community, citing the experience of Ireland in 2015. ¹⁵ Determined to fulfil its election commitment, however, the government found a creative work-around that did not require legislative authorisation. To circumvent Parliament, it made provision to hold a postal plebiscite to be conducted by the Australian Bureau of Statistics and funded under the Appropriation Act 2017–18 (Cth) that allows money to be spent from the Consolidated Revenue Fund on ‘urgent’ or ‘unforeseen’ matters in the ordinary services of government. ¹⁶ The survey would be voluntary, and its outcomes non-binding on the Parliament.

That’s how I find myself quietly waiting in the High Court that, serendipitously, is sitting in Melbourne rather than Canberra due to renovations. The case being argued in the Court is not whether it is just to publicly scrutinise the lives of the queer community, or the harm this will cause, but whether it is lawful for the government to allocate the $122 million on the plebiscite without Parliamentary approval. ¹⁷ The emphasis on the technical rather than on the moral elements of the case is a feature of the law that I well understand, but find difficult to come to terms with at this point. Two cases against the Australian government are being heard together – one brought by Australian Marriage Equality and Greens Senator Janet Rice; the other by Andrew Wilkie MP, Felicity Marlowe (lesbian, mother and advocate for Rainbow Families Victoria), and Parents, Family and Friends of Lesbians and Gays (PFLAG). It is now up to the Court to decide if the postal survey will go ahead.

The lawyers eventually stream in, a flurry of black and white, arms full of folders. The courtroom settles, paperwork in its place, and we are instructed to stand. Three knocks resound, the Judges enter and, after we pay our respects to the Queen, all are seated. There is no Acknowledgement of Country.

I have never been an ardent supporter of marriage equality. Marriage was never really on my radar as I grew up. In fact, during my undergraduate years studying feminist theory, I understood marriage to represent the antithesis of freedom, embedding fixed ideas of heteronormativity and having implications for opportunities for women in society. But I guess times change.

I am an advocate for equality. I believe that excluding people on the basis of sexuality from taking part in an institution that holds considerable power in our society is unjust. I have been in a same-sex relationship for 14 years, and my partner and I have two young daughters. This, for me, is commitment enough. For others, being able to marry bears immense importance and, legally, it continues to be the strongest form of recognition of a relationship. There is also the argument that marriage equality will contribute to a broader understanding and acceptance of queer relationships – the emphasis these days being that we are, really, the same. Only a little bit different. We fall in love, work, pay taxes, buy houses (if we are lucky), juggle school drop offs, picnic in the park and settle into watching Netflix after our daily tasks are done. Why can’t we marry? We are just like you, aren’t we?

From the opinions of constitutional experts published in the newspapers, ¹⁸ I feel quietly confident that the Court will find in favour of the plaintiffs. While I think it is time the law changed, I would prefer that it was resolved in Parliament without a lengthy public campaign. But Parliament tried, didn’t it? Twenty-two times. And without a Bill of Rights in Australia, there is no recourse to the courts to resolve the issue. I am not keen for a postal plebiscite because I don’t want my life placed in the spotlight, or for the validity of my family to be debated by strangers at barbeques. I am intrigued, however, by the possibility of this exceptional move to align the public view with Parliament’s will to make law. In the ongoing discussions about whether it is the law or society that drives change, this is a unique scenario, at least in Australia. OPEN IN VIEWER

The case is argued over two days. At times eyes glaze over and heads nod in the gallery. The conventions of the High Court can be tiresome. What surprises me is the level of exchange between Counsel and Judges who often interrupt to clarify a point or put forward a contradictory view. This also provides some insight into their thinking and, as time goes on and their comments become more critical, I become more uncertain as to how the case will be decided.

On the day the judgment is to be handed down, I take the lift to the 17th floor. The foyer is full of people, the doors to the courtroom closed. It is loud and becomes claustrophobic as bodies are pushed closer and the space fills to capacity. Everyone is talking. Once in Court, I sit next to Sue. She became involved in the marriage equality campaign when her son wanted to marry his male partner. Because they couldn’t get married in Australia, they went to New York, but his grandmother who was too fragile to fly, couldn’t attend. By the time they returned to Australia, she had passed away. Sue is clearly still emotional. Why should her mother not be witness to her son’s marriage?

Following the protocols of the Court, Chief Justice Kiefel sets down the decision of the Full Bench. They are in agreement. The orders are delivered succinctly, sharply. It is cut and dried. ‘Section 10 [of the Appropriation Act], on its proper construction, did authorise the Finance Minister to make the determination’. ¹⁹ The Minister has acted within his right in authorising the $122 million advance for the postal survey. The plaintiffs are ordered to pay costs. ²⁰

We stand as the Judges depart. The mood is heavy as everyone takes stock. In the lift on the way down, one of the QCs remarks that at least she can go home and have some time with her children. ‘While for the rest of us, the fight continues’, counters Sue.

Outside, the media wait, poised with cameras and microphones. The plaintiffs emerge, speeches prepared, rainbow umbrellas up to ward off the rain. As Felicity Marlowe speaks, I am overcome by the moment. The emotion takes me by surprise as I come to terms with what just happened and what the coming months might bring.

At home

On the tram-ride back home, I text my family. ‘That’s good. Need to get it done’, says Jane, my ‘earthmum’. What makes this another level more complex for me is that my mum is also in a same-sex relationship with Jane. I grew up not talking much about my family, adept at omitting facts where necessary. I didn’t actively lie about things, but I wasn’t forthcoming with information and friends knew, somehow, not to ask. I had a dad which made it easier, but it wasn’t until university that I was comfortable to talk more openly. Even now, having consciously created my own family, I find it hard to admit in the same sentence that both me and my mum are gay. I am, ultimately, an example of what the anti-marriage campaign rails against. Gays bringing up more gays.

Mum and Jane feel less concerned about the impact the postal vote will have on the queer community and more pragmatic about just getting on with it. They have been around for long enough and fought harder battles. When they were my age, sodomy was still a criminal act and lesbians were basically non-existent in the eyes of the law. Many others in the queer community are caught in a philosophical bind – this debate testing the boundaries of their feminist, leftist and queer positionings on the institution of marriage. They’ll vote Yes, but with gritted teeth. As a scholar, I am interested in the motivations behind the marriage equality movement and this shift from an earlier radical politics, based on ideas of difference and freedom, towards a politics of social integration and normalisation. It is a move away from dissenting ideas based on gay liberation to a more mainstream, civil and social rights approach. I am also interested in the historical and contextual elements that have an influence on social, political and legal change. What has led us here? And why now?

For me personally, the process of the postal survey feels invasive and a little dangerous. I am concerned about the impact the debate will have on my family and the queer community, and the risk that is being taken for the sake of marriage. Yet, I am cognisant of the need to pursue the issue for the sake of equality. As Yes posters start colouring the streets and discussion trickles into the school yard, we have a conversation with our children as to what the postal survey is all about. We have books about different families like ours and even one that addresses marriage equality – so this discussion doesn’t come out of the blue. We play spot the Yes posters as we drive in the car, and when we walk down the street our girls shout out eagerly, ‘they’re voting Yes!’ It has become a game.

But this current social, legal and political encounter is far from frivolous. In Australia, there are an estimated 46,800 same-sex couples, with four and a half per cent of gay male couples and 25 per cent of lesbian couples having children living in their households. ²¹ It is estimated that up to 11 per cent of the population are of diverse sexual orientation, sex or gender. ²² Despite many improvements, our society is still marked by discrimination and heterosexism. ²³

While Jane concedes that the postal survey is not the ideal way forward, she is empowered by the opportunity to cast her vote – proud to have her say. ‘Let’s get it done’. When our ballots arrive, we fill them in with less enthusiasm. Not only is the language offensive as it silences the trans, intersex and non-binary, but it feels uncomfortable to tick a box as a way of endorsing our already very real relationship. However, we do so, and diligently post them off the same day. I continue to read far too much in the media. Archiving articles from both sides of the campaign as references for my PhD. I vacillate between feeling overwhelmed by the public support, and distraught at the deceptive attempts by antipathetic campaigners to undermine my way of life and the happiness of my children. Gay mental health services are working overtime and, as I witness my own vulnerabilities coming to the surface, I can understand why. While the comparison may be crass, I get a glimpse of what it might have felt like for Aboriginal and Torres Strait Islanders in the 1967 Referendum when the question of their recognition as fully human was hanging in the balance. The Australian public got it right then; my hope, at this point, is that we are on the bright side of history this time too.

At the State Library

On 15 November 2017, the day the results are to be announced, I wake early. I’m so nervous. While the polls all point toward a Yes outcome, I am not convinced. They got it wrong with Brexit and they got it wrong with Trump. There is every reason to be apprehensive. Outside, the world is operating as usual. People rush to catch the train, kids scooter off to school – it seems surreal. We manage to get our girls out the door and head into work, but, as we talk about what the day might bring, my partner and I start to unravel and it is clear we won’t be much use to anyone today. If the outcome is No, it will be devastating. Why did they have to put us through this? I’m angry, upset and anxious.

I am taken aback by how much this is affecting me. I have a wonderful family, amazing friends, a supportive community. Why does it matter to me what the general population decides? Why do I need the endorsement of strangers? It comes down, I think, to an inherent desire to be seen – to be recognised, respected and understood. I want the majority of Australian people and the law to see me as equal, to acknowledge me as different, but to treat me equally. It comes down to the fact that I want my children to be proud of our family and to celebrate who we are. I don’t want them to feel the need to skirt around the facts. I don’t want to be silenced, hidden, or to be an omission. Perhaps it is integration or normalisation that I am now sanctioning, possibly at the expense of queer liberatory ambitions, but this is my response, my lived experience. ²⁴ Who is the law for? It should be for all of us.

I head to the State Library of Victoria to share in a collective strength. Adorned with as many rainbow threads as I can muster, I meet a friend at the edge of the crowd. We grab hold of one another silently and make our way to the front. Everyone around us is clearly as nervous as we are. But the blue skies, positive slogans and myriad colours all signify optimism, and we cling to this.

As the Chief Statistician works his way through the logistical processes of the survey, the tension builds and we all grab hold of the person next to us a little more tightly. When the announcement is made that 61.6 per cent of the Australian population voted Yes ²⁵ we bury into one another and sob. What a relief.

What a relief.

Around us the crowd roars with cheer, paint sprays across the sky in rainbow colours and glittered hearts are thrown like confetti. Everyone starts jumping around and singing along to Kylie Minogue’s version of ‘Celebration’. Once I collect myself, I join in at the top of my voice, tears streaming down my cheeks – ‘celebrate good times, come on’.

The people had their say and 133 of 150 electorates voted Yes. ²⁶ This is significant.

At the School of Law

The thing is, the postal survey was just that – a survey. While the pressure was now on the politicians to translate the result into law, the real vote was yet to come. In a last-ditch effort to undermine the outcome, the conservative-right argued for changes to Liberal Senator Dean Smith’s Bill ²⁷ that would have effectively wound back anti-discrimination legislation to a bygone era in the name of religious freedom and conscientious objection. ²⁸ You can have marriage, but not equality. ²⁹ Following months of prolonged debate, the tedious rehashing of objections to same-sex marriage (and all manner of other things) in Parliament is excruciating – politicians now privileging their right to debate the issue ad nauseam. It should have begun and ended here. At school pick up, I am alerted to the fact that the Upper House has passed the Bill without amendment. ³⁰ We share the news with interested parents in the playground.

On the week the Bill is being debated in the Lower House, I attend a doctoral forum entitled ‘Time in Law – Law in Time'. The relevance of the symposium is not lost on me. The days have been dense with discussion about how law shapes and is shaped by temporal ontologies; what is meant by the ‘right time’ for law; and even how the temporality and materiality of law engages with alterity. ³¹ Will this be the codification moment – when the social, political and legal worlds align for marriage equality? When the lag between life and law diminishes?

I manage to project the final minutes of the parliamentary debate on the wall for the remaining delegates at the forum. It is evening, and despite the pull of my partner and kids at home, I have stayed at the Law School, keen to be present at the time the law changed. Following over 100 speeches in the House of Representatives, the Bill finally passes without amendment. Only four Members of Parliament have voted against it. The moment arrived. ‘Bodies rose from the seats, those on the floor of the House and those up there in the pews, as if gravity no longer had meaning’. ³²

Walking home in the rain, I reflect on my response to the passing of the Bill. While tears and emotions overflowed in Parliament, I felt strangely dispassionate. Perhaps it was because I wanted to be there in person, perhaps I’d reached saturation, perhaps I was exhausted. The journey has been one of contradictions for me emotionally and intellectually. As I open the door to my home, however, greeted with hugs and affection, I am moved by a sense of appreciation for what has ultimately been achieved for families like ours, for young people questioning their sexuality, for couples madly in love. The world seems much the same, but actually, from here on in, it will be a little bit different.

In public

I don’t know if it is just me but, since the Bill has passed, I think I see more gay couples holding hands in public. I notice more queer people on trams and in restaurants. We do seem more out, more proud. I get congratulated on the street by my neighbours and notice that shops continue to display their Yes posters in triumph. If, as being in public spaces seems to attest, this process results in more of our community feeling more comfortable in who they are, then it has been worth it.

While the laws regarding marriage have changed, this is only one part of a larger story. It has consumed focus and dominated discussion, but there are other issues. ³³ Queer people are still at greater risk of self-harm, suicide, depression and drug use, and continue to be marginalised and discriminated against in other areas of social, legal and political life. ³⁴ This current achievement might attend to a shift in some of these things over time, but it will also privilege those queers whose lives are deemed more conventional, whose stories more closely fit the ‘right’ narrative. This is a victory but, as Sue so aptly put it that day, ‘the fight continues’. As we celebrate what has been achieved, we must also acknowledge our radical foundations and reignite our curiosity for the queer imaginary that champions and celebrates difference in and of itself. ³⁵

But I who am bound by my mirror

as well as my bed

see causes in color

as well as sex

and sit here wondering

which me will survive

all these liberations. ³⁶