Many people think of rights as constitutional rights; as right determined by the constitution. This is very much in Australians thinking because of the domination of US-based television shows and movies. Constitutional rights are only one form of right. We do have other rights. Rights by legislation and law; rights by declaration; and of course, inalienable rights. Marriage in Ireland was a constitutional right and according to the Irish Constitution this could only be changed by a referendum. Marriage in Australia is legislatively defined.
Marriage as a “legislative right” came into effect when Howard, with the Parliament’s support changed the then Marriage Act to state “between a man and a woman” to thwart intended High Court challenges to the previous definition as “between two people.” I would argue, that by Howard’s action, he acknowledged marriage could be open to same-sex partners and he did not believe in same-sex people marrying. This was based on a prejudice and became an act of discrimination. This appears to be the arguable point in equal marriage debate.
What is not arguable is Australia’s agreement to the Universal Declaration of Human Rights (UDHR). This document is the guiding document on all human rights for signatory countries. Australia is not only a signatory to this Declaration, it played an important role in its development. I would say Australia is highly invested in the UDHR.
The UDHR establishes the right to equal marriage through a number of Articles. Article 1 states, “ All human beings are born free and equal in dignity and rights.” The key points here “all [people have] equal rights.” All people means all people.
Throughout history we have witnessed how national leaders have dictated how “all people” was to be defined. Once all people would have meant only white men! We have progressed our understanding of the meaning of “all people” to be ALL people – everyone. All people are born free; are equal in all respects and can access all rights. Not just some rights.
Article 2 states, “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” I draw your attention to without distinction to “sex” as well as “other status” in this Article. Not only do all people have equal rights, rights cannot be denied on same-sex attraction.
Article 16 relates directly to marriage: “(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” This Article does not dictate that marriage is between men and women, just that men and women have the right to marry.
So through legislation (arguable) there is a right to equal marriage. Through the Universal Declaration of Human Rights there appears to be a right to equal marriage. I now wish to draw on a third rights document, the World Association for Sexual Health’s (WAS) Declaration of Sexual Rights (2014). This document has undergone a number of iterations since its inception in 1997 in Barcelona.
The WAS Declaration of Sexual Rights clearly states that people have the right to equality and non-discrimination. In this first article, it is clearly states non-discrimination of any kind and includes sexual orientation and gender identity. The current Marriage Act clearly discriminates based on sexual orientation and gender identity of the intended spouses.
Article 11 directly addresses marriage. People have “the right to enter, form, and dissolve marriage and other similar types of relationships based on equality and full and free consent.”
“Everyone has the right to choose whether or not to marry and to enter freely and with full and free consent into marriage, partnership or other similar relationships. All persons are entitled to equal rights entering into, during, and at dissolution of marriage, partnership and other similar relationships, without discrimination or exclusion of any kind. This right includes equal entitlements to social welfare and other benefits regardless of the form of such relationships.”
This Article provides a clear statement to the right to equal marriage before the law.
Just to add to the library of Declarations, we can also draw on the International Planned Parenthood Federation’s Charter Guidelines on Sexual and Reproductive Rights. This is a later conception of sexual and reproductive rights focuses more on reproductive rights and women, and is applicable. It is similar to the WAS Declaration. The International Planned Parenthood Federation Charter provides two Articles which support the right to equal marriage: Article 3 – The right to equality, and to be free from all forms of discrimination; and Article 7 – The right to choose whether or not to marry and to found and plan a family.
Marriage is a human right. Under one United Nation’s declaration, to which Australia is a signatory, and two further declaration of sexual and reproductive rights – marriage is a right. So when it comes time to respond to the ballot, think about the human rights of all people and support equal marriage.
Dr Christopher Fox is:
- Senior Lecturer in Sexual Health (Sexology), Sydney Medical School
- National Chairperson of the Society of Australian Sexologists
- Co-Vice Chair of the World Association for Sexual Health’s Sexual Rights Committee
- Sex and Relationship Therapist, Sex Life Therapy, Melbourne
- A gay man in a relationship who cannot get married
- United Nations Universal Declaration of Human Rights – http://www.un.org/en/universal-declaration-human-rights/
- World Association of Sexual Health Declaration of Sexual Rights – http://www.worldsexology.org/resources/declaration-of-sexual-rights/
- International Planned Parenthood Federation Charter of Sexual and Reproductive Rights – http://www.ippf.org/resource/IPPF-Charter-Sexual-and-Reproductive-Rights
An abridged version appeared in the Mackay Daily Mercury.