Marriage Equality



About this Item
SpeakersFaehrmann The Hon Cate; Ficarra The Hon Marie; Nile Reverend The Hon Fred; Khan The Hon Trevor; Sharpe The Hon Penny; Maclaren-Jones The Hon Natasha; Secord The Hon Walt; Clarke The Hon David; Mitchell The Hon Sarah; Green The Hon Paul; MacDonald Mr Scot; Shoebridge Mr David; Westwood The Hon Helen; Gallacher The Hon Michael; Phelps The Hon Dr Peter
BusinessBusiness of the House



MARRIAGE EQUALITY
Page: 11916

The Hon. CATE FAEHRMANN [11.06 a.m.]: I move:
      That this House:

      (a) supports marriage equality, and

      (b) calls on the Parliament of the Commonwealth of Australia to amend the Commonwealth Marriage Act 1961 to provide for marriage equality.
I read the following email:
      I am almost 70 and have been in a monogamous loving relationship for half my life. We have experienced many examples of discrimination over that time both commercially and legally. A few years back I was seriously ill in the local Catholic-run public private hospital. My other half told them he had been my partner for 30 years but they tried to deny him access because he was not related. It was not the first time. It is time we were treated equally before the law. We will be together for the rest of our lives. Our greatest wish is to marry before it's too late.
This email is from Peter, one of the more than 2,000 emails members have received in recent weeks urging them to support this motion—a motion of great importance in moving this nation towards full equality for all people. The motion gives in-principle support for marriage equality and calls on the Commonwealth Parliament to amend the Marriage Act 1961 to provide for it—that is, to remove discrimination and allow people to marry regardless of sex, sexual orientation and gender. I have every confidence that this debate will be conducted with civility and thank members in advance for their careful consideration and respectful contributions.
    I believe that as a Parliament and as legislators, mothers and fathers, sisters and brothers, sons and daughters, friends and community members we need to acknowledge that marriage discrimination is having a real impact in the community and causing pain to many people by restricting what should be a most basic freedom: the freedom to marry the person you love. Marriage equality is not a Federal issue; it is a moral issue. The question before us is whether an individual should be discriminated against because of who they love. I firmly believe that this Parliament has an obligation to make representations to the Federal Parliament to give a voice to the majority of citizens in New South Wales who support marriage equality. This motion gives us that opportunity.
      When the former Howard Government amended the Marriage Act in 2004 in a political manoeuvre to wedge the Labor Party, a renewed campaign for full equality was ignited. At that time a new definition was inserted into the Act to specifically exclude same-sex couples and to forbid Australia to recognise any same-sex marriage solemnised overseas. The country went backwards. Now fast forward to 2012 and we can be proud that we have come a long way and that this Parliament has been instrumental in removing most of the wall of discrimination that for so long has caused division, distress, violence and more. New South Wales can be very proud of its history of removing discriminatory laws, of being a leader in the areas of anti-discrimination legislation, adoption laws and relationship recognition.
        In September last year the Tasmanian Parliament voted on a motion identical to this motion and it was passed. The motion was passed in a State whose equality law reform is much more recent than New South Wales. Today I hope that we join Tasmania in providing leadership to Australians on marriage discrimination. This motion should be seen as a significant step towards the removal of one of the last bricks in that wall of discrimination that this Parliament has so rightly and proudly dismantled over the years. How can this Parliament now not support calls for marriage equality when we accept that all families should have the legal protection provided by same-sex adoption legislation? How can it not support the rights of parents to marry, if that is their wish, or for the children in those families to know their parents' love is just as rich and equal as the love of anyone else's parents in their street or school?
          If this motion passes it will be considered part of a natural progression of laws that removed all unjust discrimination. History shows society's steady progress towards a more tolerant, fair and fully equal society with women securing the vote, the civil rights movement, First Australians being given the vote and the decriminalisation of homosexuality. There are currently three bills before the Federal Parliament to provide for marriage equality. These bills would bring Australia into line with countries such as Canada, the Netherlands, Sweden, Belgium, Norway, Spain, South Africa, Argentina, Mexico and a number of States in the United States of America. The sky has not fallen in any of these places and we know it will not when the motion is passed in Australia.
            Some members have suggested to me that marriage discrimination is not a priority. I believe that if the community who is suffering the discrimination is shouting to Parliament that it is their priority, then it becomes a priority for their representatives in Parliament. I will explain why it is their priority. Marriage discrimination is, at its root, homophobia. It is institutional homophobia. It should be very simple for us to understand that institutional homophobia feeds personal, interpersonal and cultural homophobia in our society. What must be absolutely central to members' deliberations on this debate is the impact of homophobia in the community. Some members will be aware of an organisation called Twenty10. This relatively small not-for-profit organisation supports young people of diverse genders and sexualities, with services ranging from counselling to crisis accommodation.
              Twenty10 has been in operation for 20 years. It is an essential service that has helped thousands of questioning young people overcome some difficult challenges, such as family rejection, social isolation, violence, homelessness and some of the most severe discrimination imaginable. These are young people like those who were surveyed for the Writing Themselves in [WTi] reports. The studies were conducted by Dr Lynne Hillier and others from La Trobe University into the health and wellbeing of same-sex attracted young people. Twenty-year-old Christopher states:

                  I would say a gay person who says that they have never even thought about suicide is lying. Not being able to act on any of your desires, having to actively hide your true self, often having to pretend to hate the very thing that you are; all of these things equates to a deep feeling that you don't deserve to live, or failing that, a deep desire to end the suffering.
              I pose this question to all members: How can we expect our children in the playground and our colleagues in the workplace to challenge homophobia when the laws governing and recognising families and love sanction transparent discrimination? What chance do we have of improving the lives of vulnerable young people, when our leaders and parliaments fail to take a stand against such discrimination? We cannot get around the fact that marriage laws which discriminate send a clear and devastating message: Not only are you different, but you are not worthy of this special institution which is held by so many to be so sacred. The message is clear: You do not qualify; you are not good enough.
                I know that many members in this place are married. When they think of their wedding day they will recall it was the ultimate expression of their love and the ultimate validation and recognition for them and their partner in front of their families and friends. Same-sex attracted people are just as capable of love and commitment as heterosexual people. The marriage laws currently send a loud message that says same-sex attracted people are less stable, less resilient and of less value to their partners, families and friends—and of less value to society. That kind of negative message justifies homophobia in our communities and, even worse, builds on the devaluation, fear and self-doubt that same-sex attracted people can experience every day. Twenty-year-old Tracey in the Writing Themselves in report stated:
                    My mum called me a lesbian when I was 15 in a derogatory way. My sister told me I will burn and I am an abomination … The government needs to show an example to them by allowing full equality for all Australians.

                It is my firm belief that every single member in this place has a responsibility to those suffering the effects of homophobia; especially young people. I believe we have a duty to stand up as leaders and send a strong message—not just a message to young gays and lesbians, but also to their families and friends, to all in the community—that says discrimination is not okay. It is time for full marriage equality for all, regardless of gender or sexual orientation. We have a responsibility to send a strong message to the community that says love between two consenting adults is a wonderful thing that we, as a community, support. Some members will no doubt argue that allowing same-sex couples to marry poses a threat to the institution of marriage. But I am yet to hear a rational argument as to how that will occur. I am not alone in those thoughts. Recently the Hon. Michael Kirby was speaking to the Senate Legal and Constitutional Affairs Committee and stated:
                    I have never had a satisfactory explanation of how my loving relationship with my partner in any way damaged the institution of marriage, or would, if marriage were available to us.

                It is precisely because the institution of marriage is held in such high regard that people want access to it. It is precisely because, for many people, marriage represents the deepest expression of a couple's love and commitment for each other that some same-sex couples want to marry. Kristie states in her email:
                    In April I flew to New York with 20 friends and family to marry my partner of four years. I can personally tell you that marriage means something to me and to my partner and my friends and family. All of who live in a society that views marriage as the ultimate symbol of commitment to a loved one. I am not interested in making up a civil union ceremony, I consider it a compromise.

                Lorraine states in her email:
                    My elder daughter is gay and she has a lovely partner. They obviously love each other. My younger daughter recently married and enjoyed what is an important cultural event in our society. The joy and excitement experienced not only by them but also by family, friends and the wider community of neighbours and work colleagues is testimony to this. Please let all loving couples have access to the institution of marriage.

                It is clear that the institution of marriage will be strengthened by accepting diversity within the community, removing discrimination and allowing access to people who want it. The institution of marriage has always been changing and it has changed significantly in the last 20 years. The Australian Bureau of Statistics states that of registered marriages in 2010, 31 per cent were religious ceremonies, down from 58 per cent in 1990. In other words, in 2010, 69 per cent of marriage ceremonies were conducted by civil celebrants, up from 42 per cent in 1990. From the 20 years from 1990 to 2010, the proportion of babies born outside registered marriages rose from just over one-fifth, or 22 per cent, to just over one-third, or 34 per cent, of all births.

                I ask those who are considering voting against this motion today: What harm will occur by allowing two women or two men, who are deeply in love with each other and committed to each other, to marry? What harm will occur to families, to our society, or to our religious institutions? It is simply not necessary to sanction discrimination in order to respect tradition or even to ensure religious freedom. Personal religious beliefs should not impose on the freedoms of others. Or to put it more lightly, it is fine if people do not want same-sex marriage; they do not have to enter into one. But please allow others the joy, the love, the validation and the sanction that they are able to enjoy in their marriage or in other marriages that our society has blessed.

                The amendments to be moved by the Hon. Trevor Khan will address this issue. But they go further: calling on the Commonwealth Government to ensure that churches are not forced to solemnise same-sex marriages if they do not wish to do so. I will be supporting those amendments, reluctantly, to give the motion its best chance of success. Unfortunately, there is still a long way to go with regard to exemptions allowing religious organisations to discriminate. I feel that we will have that debate in this place another day. Thank you to the people in the gallery who have come to hear this debate today.

                First, I thank Alex Greenwich for his inspirational leadership on the Australian Marriage Equality campaign. It is worth noting that Alex has recently returned from Argentina, where he married his long-term partner, Victor Hoeld. I am sure Alex and Victor enjoyed the holiday and the wedding, but what a tragedy they are not able to solemnise their love in this way in their home country. I also thank Rodney Croome, the legendary campaigner from Tasmania, who along with some of my Greens colleagues helped transform the most homophobic State in Australia into the most accepting, within one generation. I also thank Peter Stahel in my office for his hard work over many weeks and his determination in seeing this motion succeed.

                I give my special thanks to the Gay and Lesbian Rights Lobby, Community Action Against Homophobia, also in the public gallery, ACON, Parents Families and Friends of Lesbians and Gays, the Gender Centre and all the other groups, activists and ordinary community members who have come out in support of marriage equality. Thank you to the campaigners who have sacrificed so much over decades in the struggle for equal rights, as well as to the newly convinced, who have come around in recent times. And thank you to so many people who have had the courage to share very personal and very moving stories with me and other members over the past few weeks. Jeff Kennett recently said on Melbourne radio:
                    If people are living a happier life in a gay relationship which ends up in marriage, then why would I in any way want to prevent it? I don't oppose gay marriage.

                He later went on to write in the Herald Sun:
                    The reality is that all the anti-discrimination laws are baseless if society deliberately discriminates against those law-abiding citizens who seek marriage, but are discriminated against by a law on the grounds of sexuality.

                Those who have come on a journey through these issues, and grappled with their personal beliefs and values, should also be congratulated. I look forward to some of you being on the right side of history today. Today's conscience debate is enormously significant, because in Canberra the Leader of the Opposition, Tony Abbott, refuses to allow Coalition members of Parliament a free vote. I therefore congratulate Barry O'Farrell, John Robertson and Andrew Stoner on their leadership in allowing members to examine marriage equality on its merits in this instance. Let me finish with the words of two campaigners. The first is of Shelley Argent, AM, the National Spokesperson for Parents Families and Friends of Lesbians and Gays:
                    Our lesbian daughters and gay sons want no more or less than their heterosexual siblings, which is just be equal. And we as their parents also want equality for them...

                    Marriage equality will remove the feeling from our sons and daughters that they are seen as second rate citizens with second rate relationships and provide them with the same rights and responsibilities, privileges and choices as their siblings, colleagues and society.

                The second is Katherine, who says in another of the emails:
                    The reason this issue is so important to me: My great cousin Klaus was with his male partner Rudy for 40 years. Rudy was ill the last 5 years of his life; Klaus cared for him 24/7, they made a home, and had a wonderful loving relationship. Klaus passed away 2 weeks ago. They always wanted to be married. Please, they should've had that right. Don't let anyone else suffer because they're in love.

                I think about the wish of 70-year-old Peter, mentioned at the beginning of my speech: to marry before it is too late. I urge all members, if they have not already, to read some of the personal stories and personal messages that have come through in emails. I commend the motion to the House.

                The Hon. MARIE FICARRA (Parliamentary Secretary) [11.23 a.m.]: In 2004 our Federal Parliament, with the support of the major parties, defined marriage as "the union of a man and a woman to the exclusion of all others voluntarily entered into for life". This was reaffirmed in early 2010. Proponents of same-sex marriage argue that groups of people in the community feel they cannot participate in marriage because as the law currently stands marriage is defined in a way that precludes same-sex relationships. They say it is unfair that their sexual orientation should bar them from a level of commitment, intimacy and companionship that is permissible to heterosexuals.

                I sympathise with their position, as do many others; I believe it to be based on a desire for recognition, a social acceptance by being allowed to marry. However, I cannot agree with the argument of discrimination. After the 2010 Federal election, more than 80 pieces of legislation were amended to protect homosexual rights and entitlements—equivalent to those of heterosexuals in areas such as laws of inheritance, tax, employment, superannuation, pensions, aged care, workers compensation, health care, veterans' entitlements, spouse accompaniment on travel and many more areas of financial equality. The only thing that homosexuals do not have at present is marriage; although in some States, including New South Wales, they can enter their same-sex partnerships into a relationships register, which does provide a form of public recognition. The Federal Labor Attorney-General, Robert McClelland, was quoted as saying:
                    In keeping with election commitments, the changes do not alter the marriage laws.
                Today, in 2012 I say there has been no election commitment to change the law governing marriage in the State of New South Wales or in our nation. Is same-sex marriage a burning issue with New South Wales voters? I sincerely doubt it. They want us to get on with managing our State better in areas of public transport, infrastructure, health, education and roads, to name but a few. The gay community is like any other community, with its own range of differing views. Many homosexuals I know feel this issue is a divisive and unwelcome one; and if given the opportunity to be able to marry their partner, they would not do so. There are a range of opinions across communities and across our State, let alone our party rooms.
                  Why is the law involved in what are essentially personal and private relationships? The State has always needed to promote permanence and exclusivity to protect the rights of children and their ongoing security. What is of fundamental interest to a government is any relationship between adults that has the capacity to produce children. The State rightly has a special interest and responsibility with regard to children as the future of our society—the parens patriae responsibility of the State. For centuries the only reason why marriage has been made permanent and exclusive in the eyes of the State is the need to protect the rights of children and their future security; this includes the protection of their identity. Identity is very important to us all, but especially to children—not only from a psychological point of view but also in terms of status and citizenship.
                    Identity comes from one's parents, a man and a woman, and there is no other way possible. Even throwing into the equation assisted reproductive technologies, the fact remains we will always need an ova and sperm—a man and a woman. I believe that the State has a strong interest in trying to secure relationships that produce children and encouraging people to marry for the purpose of having children—a proven strong societal base for harmony and growth, physically and mentally. I strongly believe that a committed relationship in marriage between a man and a woman is by far the best protection for the identity of the children it produces. A child needs to know that only this man and this woman can be his or her father and mother.
                      I would never want to stop access to reproductive technologies, as more often than not it is utilised by married couples finding it difficult to conceive and the outcomes are wonderful. However, extending the rights of homosexuals to access these reproductive technologies and having their relationships legally recognised as a marriage can lead to myriad societal problems. Foremost for me as a legislator is my responsibility to protect the rights of children as the legislative base of our society. With same-sex marriage, adult needs, desires, hopes and aspirations become the focus to the exclusion of the rights of children as the centrepiece of our concern and nurturing.
                        We are seeing situations involving assisted reproductive technologies where two men can engage a woman to carry a pregnancy for them and give up her child at birth. One of the men may be the father of that child, having provided his sperm. Part of the child's identity is with the birth mother, who is not a part of the ongoing relationship in the majority of occasions. All sorts of emotional and physical complications can arise. Children who are part of a gay relationship either came from a previous heterosexual relationship or came through technology assistance involving someone else for biological reasons. How about we put children at the centre of our collective concern?
                          Our society has been based on Judeo-Christian values, institutions and teachings. The history of marriage in our society has a Judeo-Christian origin. The question we now face in a multicultural and multi-religious society is: What sort of relationship should be adopted as an institution for the sake of children? We know what happens when marriages break down: extra burdens can be placed on the State, often involving welfare, and individuals and families suffer emotional and physical trauma. The State has an interest in supporting marital relationships. I wish to quote from an enlightening article in the Australian on 23 July 2011 by Margaret Somerville, an Australian-Canadian ethicist and Samuel Gale, Professor of Law at McGill University, Montreal. The article is headed "It's all about the children, not selfish adults", and it states:

                              SAME-SEX marriage forces us to choose between giving priority to children's rights or to homosexual adults' claims.

                              The dangers of same-sex marriage to children's human rights are amplified by reprogenetic technoscience. Developments like IVF, cloning and surrogacy pose unprecedented challenges to maintaining respect for the transmission of human life and the resulting children, because they open up unprecedented modes of transmission. When the institution of marriage is limited to opposite-sex couples, it establishes a social-sexual ecology of human reproduction and symbolises respect for the transmission of human life through sexual reproduction, as compared to asexual replication (cloning) or same-sex reproduction (for instance, the future possibility of making a sperm from one woman's stem cell and using it to fertilise another woman's ovum).

                              Recognising that a fundamental purpose of marriage is to engender respect for the transmission of human life: excluding same-sex couples from marriage is not related to those people's homosexual orientation, or to them as individuals, or to the worth of their relationship. Rather, the exclusion of their relationship is related to the fact that it is not inherently procreative. Same-sex marriage is symptomatic of adult-centred reproductive decision making. But this decision-making should be child-centred.

                              This means we should work from a basic presumption that children have an absolute right to be conceived from natural biological origins, that is, an untampered-with ovum from one, identified, living, adult woman and an untampered-with sperm from one, identified, living, adult man. This, I propose, is the most fundamental human right of all.

                              Children also have valid claims, if at all possible, to be reared by their own biological parents within their natural family. If not raised by them, they should know who their parents and other close biological relatives are. And society should not be complicit in depriving children of a mother and a father.

                              Pointing out the deficiencies of traditional marriage and natural families is often used to argue for same-sex marriage. The issue is not, however, whether opposite-sex couples attain the ideals of marriage in relation to fulfilling the needs of their offspring. Nor is the issue whether marriage is a perfect institution: it's not. Rather, the issue is whether children, in general, and society are better off if marriage remains between a man and a woman. I believe they both are.

                              We also need to consider the wider effects of legalising same-sex marriage. It can result in restrictions on freedom of conscience and religion, and freedom of speech. We've seen that happen in Canada. Complaints filed before Human Rights tribunals or courts have sometimes resulted in substantial penalties. Those targeted have included civil marriage celebrants for refusals to conduct same-sex marriages; a teacher and an author of a letter to the editor; a Roman Catholic organisation that rescinded an agreement to rent a church hall for a lesbian wedding reception; and school trustees for their decision not to include books on homosexual families on a reading list for kindergarten students.

                          Some supporters of same-sex marriage have argued that in the event of marriage being redefined, religious faith-based communities will be protected or exempted from being required by law to perform same-sex marriage. We heard earlier that such amendments are proposed as part of this debate. Such proposals fail to understand the immensely powerful role and influence of the law in our society. An exemption would apply only to religious celebrants and would offer no legal protection to the vast majority of faith-based providers holding a belief that marriage is a union of a man and a woman.
                            If the definition of marriage is changed, in refusing to teach and uphold the new definition many Christian and other faith-based denominations would be teaching inconsistently with the State and, arguably, they would be teaching in a way which was discriminatory. These are, indeed, real legal consequences of what we have before us in this Parliament today. I hope that members take that into consideration when they vote on this motion, because it is opening up a whole new legal sphere, as we have seen in other countries. I am confident that I speak for mainstream New South Wales and, indeed, mainstream Australia, in opposing the motion before the House and reaffirming my strong commitment to marriage being a union of a man and a woman, to the exclusion of all others, voluntarily entered into.

                            Reverend the Hon. FRED NILE [11.36 a.m.]: I speak in opposition to this motion, which I cannot vote for or support. However, I have received a report of a decision made by the European Court of Human Rights. The report states:
                                The European Convention on Human Rights does not require member states' governments to grant same-sex couples access to marriage. The European Court of Human Rights repeated this ruling in the case of Gas and Dubois v France, a judgment decided last week in Strasbourg involving a French lesbian couple in a civil union.

                                The European Court of Human Rights decided that this was not an instance of discrimination, nor of the violation of the right to respect of one's family and private life because there is no right to gay marriage under the European Convention for Human Rights …
                            Because of that decision I move the following amendment to the motion:

                                That the motion be amended by omitting paragraph (b) and inserting instead:

                                (b) notes that on 16 March 2012 the European Court of Human Rights ruled that denial of same-sex marriage is not an instance of discrimination or the violation of the right to respect of one's family and private life because there is no inherent right to homosexual marriage.
                            One underlying issue in this debate that concerns me is the political timing of the motion. The motion is obviously designed to put maximum pressure on the Hon. Tony Abbott, the Federal Leader of the Opposition. Both the Labor Government and the Coalition gave a promise before the last election that they would not support any move towards same-sex marriage. Sadly, the Labor Party has broken that election promise, although the Prime Minister is still holding to it. Tony Abbott believes that because the Coalition went to the election with that as an election promise it should not change its policy mid-term. He has required the Coalition to uphold that election promise and Coalition members will not be allowed a conscience vote.
                              If Tony Abbott's policy is successful it is clear that the three bills that have been presented to Federal Parliament through the Senate and the House of Representatives will be defeated. If the conscience vote is removed the outcome will be more uncertain. The point is that this motion is designed to put pressure on Tony Abbott and members of the Federal Liberal Party to break their election promise. I do not believe that is fair to the voters of Australia who vote on the basis of those promises and expect them to be upheld. I have known Tony Abbott since he was a student at university and I hope that he will stay firm to that election promise. This motion is designed to put pressure on the Federal Coalition to change its policy. I therefore urge all members of the House, particularly members of the Coalition, to bear that in mind when they vote. They must put aside their personal positions and see the need to maintain and uphold the Coalition's election promise.

                              Members know that I have been consistently opposed to moves to legalise same-sex marriage since the 1970s when I became involved with various organisations such as the Festival of Light Community Standards Organisation. When the Christian Democratic Party was established it became the policy of our political movement to oppose same-sex marriage. I have endeavoured to uphold that policy in my statements and activities. That is not just because I have some sort of reaction to homosexuals, or even to same-sex marriage. My position is based on my Christian faith and belief. I cannot move away from that: it is a foundation of my life. I believe that a marriage between a male and female is not something with which politicians should trifle. I believe it is an institution that has come to us as designed by our creator, Almighty God. God planned that the human race would have males and females and that males and females would be able to get married and, with God's blessing, also have children—although having children is not dependent on marriage. The Book of Genesis, one of the earliest written documents, in discussing the creation of Adam and Eve states at 2:24:

                                  Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.
                              Two men or two women obviously can never become one in marriage. To further demonstrate that point, the verse I have quoted does not say, "shall leave his father and his father", or "leave his mother and mother", or "shall cleave to another man". It says "shall cleave unto his wife", and we know that "wife" means female. Some people may say that is something in the Old Testament that is thousands of years old, but Jesus Christ, the founder of the Christian faith, deliberately repeated those words when he was asked about marriage by the Pharisees. Matthew 19:3 states:

                                  The Pharisees also came unto him, tempting him, and saying unto him, Is it lawful for a man to put away his wife for every cause?

                                  And he answered and said unto them, Have ye not read, that he which made them at the beginning made them male and female,

                                  And said, For this cause shall a man leave father and mother, and shall cleave to his wife: And they twain shall be one flesh?

                              Those of us who have been married have had the experience of a husband and wife becoming one, as was the intention of God. I believe it is important for the Parliament to uphold what has been a historic definition of marriage for thousands of years in all societies and in all religions. We should uphold God's plan for creation, marriage, family, children, procreation and the continuation of the human race. An argument made by those who promote same-sex marriage is that it is their private right that they wish to have and it will not have any effect on anyone else, the church or the community. The answer to that is to look at places where same-sex marriage has been legalised to see the dramatic impact it has had on those communities. Massachusetts was one of the first States in the United States to legalise same-sex marriage. However, over 30 States in that country have passed referendums opposing any change to the institution of marriage between a male and a female. That has only been overthrown in some States because of the action of a judge, which is undemocratic. It is totally opposite to the definition of democracy if a judge can overrule a referendum in which the majority of citizens voted to have marriage only between a male and a female and to have that enshrined in their constitution.

                              I will give some examples of the impact that same-sex marriage has had in Massachusetts. Brian Camenker says there was a school-wide assembly at his children's high school to celebrate same-sex marriage. It featured an array of speakers, including teachers who announced that they would be marrying their same-sex partners and starting families either through adoption or artificial insemination. Literature on same-sex marriage was handed out to all the students. By the following year at that school same-sex marriage had entered the elementary school curriculum. Kindergarteners were given picture books telling them that same-sex couples were just another kind of family like their own parents. It cannot be argued that same-sex marriage merely concerns the private right of two males or two females to be married. It in fact causes a change to the way all of society comprehends marriage and it impacts particularly on children in the education system.

                              In 2005 David Parker, the parent of a kindergartener, strongly insisted on being notified when teachers were discussing homosexuality or transgender people with his son. The school had him arrested and put in jail overnight. Children in second grade at the same school were required to read a book entitled King and King which tells the story of two men who have a romance and marry each other and also features a picture of them kissing. When parents Rob and Robin Wirthlin complained they were told that the school had no obligation to notify them or to allow them to let their child opt out of the exercise. These examples demonstrate that decisions we may make in the name of tolerance must be carefully weighed up against their impact on our society. What impact would legalising same-sex marriage have on the institution of marriage? I believe it would undermine that institution. We must consider also what impact it would have on our children.
                                In 2006 those two families filed a civil rights law suit to force schools to notify parents and allow them to opt out their elementary schoolchildren when homosexual-related subjects were taught. The Federal judges dismissed the case. The judges ruled that because same-sex marriage was legal in Massachusetts the school had a duty to normalise homosexual relationships to children, and schools had no obligation to notify parents or let them opt out their children. Acceptance of homosexuality had become a matter of good citizenship.
                                  When the law changed school libraries across the State, from elementary school to high school, were required to have shelves of books on same-sex marriage, et cetera. Over the past year homosexual groups have been using taxpayers' money to distribute a large, slick, hardcover book celebrating homosexual marriage entitled Courting Equality to every school library in the State. This is a serious matter that we, as members of this Parliament who make laws and have responsibilities to all citizens of New South Wales, must seriously consider. We must also seriously consider the impact of decisions we make in this House and how we vote. I call on members to vote against the motion and to support the amendment.
                                    The Hon. TREVOR KHAN [11.50 a.m.]: I speak in favour of the motion. However, I will be moving an amendment to reflect the spirit and intent of three bills that currently are before the Federal Parliament, including The Greens Adam Bandt's bill. This House adopted a motion in formal business today that acknowledges past religious intolerance in Britain and expressed the support of this House for tolerance, diversity and religious freedom. Consistent with that motion, I believe it is essential for this House to send a clear message to all those who are presently engaged in the debate that there are two important principles that cannot be ignored and indeed must be embraced and proclaimed.
                                      The first of those principles is religious freedom. All people have a right to religious freedom in this country. That is an important freedom and one that we should all hold dear. It is the freedom that protects not only the various denominations of the Christian faith but also the Jews, the Muslims, and other groups in our society. It is also one of the fundamental tenets for those of us who accept that Australia is a secular and tolerant society. The second principle that my amendment seeks to encourage is tolerance—tolerance for a diversity of views. Sadly, all too often in debates such as these views are expressed in absolutes with little regard for the views of others. As Henri Poincaré once said:

                                          To doubt everything or to believe everything are two equally convenient truths; and both dispense with the need of reflection.
                                      This issue is one for thoughtful reflection, not bellicosity. What I ask this House to endorse is simply a civility in our discourse. I therefore move:

                                          That the question be amended by inserting after paragraph (b):

                                          (c) notes that Article 18 of the United Nations Universal Declaration of Human Rights provides that "everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance",

                                          (d) calls on all participants in the debate on marriage equality to treat those with differing views with respect, dignity and tolerance, and

                                          (e) calls for any amendments to the Marriage Act 1961 (Cth) to ensure that religious institutions are not forced to solemnise marriages they do not wish to.
                                      I prepared a lengthy contribution to this debate that was based largely on my submissions to two inquiries by the Federal Parliament. However, recently the mayor of a town in my area said to me, "Trev, why are you so uptight about this? It's a no-brainer, it's going to happen, so say what you feel." Of course, he was right. The polls are consistently showing support of more than 60 per cent of people in our communities for marriage equality. More importantly, the age groups with the highest marriage rates—those aged between 18 and 35 years—consistently are showing support at approximately 80 per cent. So it will happen because eventually, as politicians, we will bow to the will of the people.
                                        Before I proceed I must acknowledge a few people. Firstly, I congratulate the work of Alex Greenwich, Rodney Croombe, and others at Australians for Marriage Equality as well as Shelley Argent from Parents and Friends of Lesbians and Gays [PFLAG]. Over the past few years their work has been essential for harnessing the fundamental decency of Australians in support of this cause. I also acknowledge the work of the New South Wales Gay and Lesbian Rights Lobby, and particularly Senthroun Raj, Justin Koonan and Lainie Arnold. I also acknowledge those who have worked so hard on this issue in this place. While there have been many, I particularly note the hard work of the Hon. Cate Faehrmann, the Hon. Penny Sharpe and the Hon. Helen Westwood. On the Liberal side, I specifically note the long and tireless efforts of you, Mr President, the Hon. Don Harwin.

                                        I must also specifically note the willingness of the Premier, the Hon. Barry O'Farrell, to allow a conscience vote, not just on this motion but also previously on issues such as the Relationships Register Bill and the Adoption Amendment (Same Sex) Bill. I thank him for being the first Premier of this State to attend, along with his wife, Rosemary, the Sydney Mardi Gras. At this point I also note the willingness of a former Premier of New South Wales, Nick Greiner, and a former Premier of Victoria, Jeff Kennett, to throw their support behind the campaign for marriage equality. In my own party I specifically acknowledge the past efforts of the former member for Orange, Russell Turner. I acknowledge the Minister for Education, Adrian Piccoli, not just for his statement on the need for tolerance and acceptance but also for his continuing support for the Proud Schools Program.

                                        There will be members of this Chamber, particularly on my side, who will struggle with this motion for a variety of reasons. But, in truth, one of the questions in their minds will be: How can we support a motion introduced by The Greens? Surely what we are doing is simply helping to advance their radical agenda. I say to them that support for marriage equality by conservatives is both rational and sensible. The British Prime Minister, David Cameron, addressed his party's conference last year and said of marriage equality:
                                            Yes, it's about equality, but it's also about something else: commitment.

                                            Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other.

                                            So I don't support gay marriage despite being a Conservative. I support gay marriage because I'm a Conservative.

                                        Likewise the American columnist David Brooks wrote in 2003:
                                            Today marriage is in crisis. Nearly half of all marriages end in divorce. Worse, in some circles, marriage is not even expected. Men and women shack up for a while, produce children and then float off to shack up with someone else.

                                            Marriage is in crisis because marriage, which relies on a culture of fidelity, is now asked to survive in a culture of contingency.

                                            Freedom is a wonderful thing, but the culture of contingency means that the marriage bond, which is supposed to be a sacred vow till death us do part, is now more likely to be seen as an easily cancelled contract.

                                            ... we are not animals whose lives are bounded by our flesh and by our gender. We're moral creatures with souls, endowed with the ability to make covenants, such as the one Ruth made with Naomi:
                                            "Where you go I will go, and where you stay I will stay. Your people will be my people and your God my God. Where you die I will die, and there I will be buried."
                                            The conservative course is not to banish gay people from making such commitments. It is to expect that they make such commitments. We shouldn't just allow gay marriage. We should insist on gay marriage. We should regard it as scandalous that two people could claim to love each other and not want to sanctify their love with marriage and fidelity.

                                        This motion essentially is about how people are prepared to treat other people. This is an issue that affects people in every town and suburb across the State. It affects men and women in every age group and every profession, trade and occupation. A couple of months ago a young man who grew up in Inverell in north-western New South Wales wrote to each of us, stating:

                                            I was raised in a devoted Christian home in rural NSW … where differences were public embarrassments not something to be embraced.

                                            Coming out at 16 in 1996 was the greatest risk I have ever taken and I would be lying if I said this news was well received. It took my family over 5 years to even admit to themselves that I was gay, much less accept it.

                                            I met my partner … over 8 years ago. In that time my heterosexual brother and two heterosexual sisters have all met, married and divorced (or separated) from their legally married wife (and) husbands.

                                            It's ironic that according to society and those opposed to marriage (equality), who said homosexual relationships aren't stable, (that) in my family … this is far from the case!

                                            I never believed that my parents would ever accept me or my relationship with (my partner). Two years ago, as the last of my sisters filed for divorce from her husband, my dad said to me that he never thought my … relationship would be the one of all his children's relationships that would stand the test of time.

                                            He thanked me for proving him wrong and changing his opinion on not only the gay community but also on marriage (equality).

                                            My father has since acknowledged that he REGRETS not attending … my commitment ceremony in 2006, adding that "I pray I will be given the opportunity to right my wrong and see my eldest son legally marry the man he loves".

                                            This is why I (and my father) support marriage (equality).

                                        That young man and his father's rapprochement are emblematic of society's growing understanding and compassion. It is time for all of us in this place to soften our hearts and accept that the expression of love and commitment through marriage should be available to all couples, irrespective of sexuality.

                                        The Hon. PENNY SHARPE [12.01 p.m.]: I contribute to this debate to add my support to the campaign for marriage equality in Australia. I do so as someone who believes that every person who calls Australia home has the right to be treated equally before the law. Pursuing equality is one of the reasons that I wanted to become a member of Parliament in the first place. The Australian Labor Party's commitment to a fair go is one of the reasons I am proud to be part of it. Equality before the law is not a luxury to be given by legislators; it is a principle that elected representatives have the responsibility to progress.

                                        Later this year members of the Commonwealth Parliament will make the decision whether they will recognise the right of our gay, lesbian, bisexual, transgender and intersex citizens to equality before the law. This debate will be a historic moment in the history of gay, lesbian, bisexual, transgender and intersex law reform in Australia and the ongoing strides for equality. It is a history forged in the protest movement of the 1970s and the establishment of groups such as the Campaign Against Moral Persecution—better known as CAMP—and carried on by the many gay, lesbian, bisexual, transgender and intersex organisations that have continued to fight over recent years. I acknowledge those who are in the gallery today.

                                        When the Campaign Against Moral Persecution was established gay men were considered criminals and could be put in jail for up to 14 years for the crime of buggery. The medical profession defined gay men and lesbians as sick and in need of treatment. It is the refusal of our gay, lesbian, bisexual, transgender and intersex citizens, their organisations and supporters to accept second-class status that has led to the protests, campaigns, lobbying and many, many years of work that have made reforms in the last decades a reality.

                                        We have come a long way. In 1984 the Wran Government decriminalised homosexuality. The Hawke Government in 1985 recognised same-sex couples for immigration purposes and in 1986 declared discrimination against gays and lesbians in the workplace a breach of human rights. In 1992 Labor ended discrimination against gay men and lesbians in the Australian Defence Force and in 1993 Labor passed the world's first sexual privacy laws. From 1999 to 2010 the New South Wales Labor Government and other members equalised the age of consent, recognised same-sex parents and removed discrimination in all New South Wales laws, which now guarantee that same-sex couples are treated equally in all areas of New South Wales law. Federally, the Labor Government removed discrimination against same-sex couples in 85 laws. Progress also has been made in relation to discrimination against transgender people. But there remains more work to do at a State and Federal level to progress equality for our transgender and intersex citizens.

                                        In 2011 the campaign for marriage equality took an important step forward when the Labor Party changed its platform to support marriage equality for all Australians. As all members in this Chamber are aware, the Labor Party will grant a conscience vote to its members when the Stephen Jones private member's bill is debated later this year—as Labor also does here today. I congratulate Premier Barry O'Farrell and Deputy Premier Andrew Stoner for allowing members in the Liberal Party and The Nationals a conscience vote on this motion today. I hope that those on the conservative side of politics in Canberra will be granted that same right under Tony Abbott and Warren Truss, although at this point I acknowledge that looks unlikely.

                                        I acknowledge the members on all sides of this House and from most of the political parties represented here who will give their support to this motion. I recognise the Hon. Cate Faehrmann, who was prepared to test the Legislative Council's support for marriage equality. Marriage equality matters. Try as many might, until it is made law it will be an issue that will not go away. As my colleague Penny Wong said recently:
                                            There is nothing so persistent as the aspiration for equality.

                                        Marriage equality matters to the majority of Australians who say through opinion polls they support it. It matters to the hundreds of thousands who responded to the Federal parliamentary inquiries to say they support marriage equality. It matters to the over three million people who watched the GetUp! video in support of marriage equality. It matters to the hundreds of people who emailed me urging me to support this motion. It matters to the gay and lesbian, bisexual, transgender and intersex kids who are growing up being told that that there is something wrong with them and that they are not worthy of equal treatment before the law. It matters to the intersex members of our community who can be denied marriage or required to divorce if their intersex is discovered. It matters to transgender members of our community who are told that they have to choose between having their gender recognised or divorcing their husband or wife.

                                        Marriage equality matters to the mums and dads who want to celebrate the marriage of all their kids, gay, straight, transgender, or intersex. It matters to our families and friends. It matters to the children of gay, lesbian, bisexual, transgender and intersex parents who want to know why their parents are treated differently and question whether that means there is something wrong with them. But specifically and most importantly, marriage equality matters to all the couples who want to celebrate their love and commitment to each other through marriage. It matters to my young friends Curtis and David. Curtis and David have been together for eight years, since they were both 18. Curtis and David knew they wanted to spend their lives together after only one year together. Curtis' mum and dad are both ministers of religion in the Salvation Army. Curtis' parents not only accept Curtis' relationship: they want to see their son marry. As Curtis puts it:
                                            David and I are both Christians and go to church together in the Inner West. Our congregation accepts us and can't wait to be a part of our wedding, as do all of our family and friends.
                                          Curtis has a sister who has been in a relationship with her boyfriend for almost eight years. Curtis said:

                                              Last week they got engaged and are getting married in September. I am over the moon for them both but it's hard to ignore the fact that they can get married while David and I can't!

                                              Sometimes it feels like your relationship is not as stable or secure as other people's because you can't get married. Despite this, David and I have stuck together through thick and thin, good times and bad, over the last eight years.

                                              I feel that we, along with our friends and family, should be able to honour our commitment to each other just as equally as many of our straight friends have been privileged to do through marriage.
                                          Marriage equality matters to this mum who told me:

                                              I am a straight, Christian mother that works for a Religious Organisation and I see marriage equality as a legal and human rights issue not a religious one.

                                              My son grew up with a strong spirit and a kind nature, very similar to his straight brother.

                                              He is a gentleman and anyone that has him as a friend would count themselves lucky and I feel very wealthy and blessed to have him as a son as I do my other children (all mum's would understand that last comment—you have to treat them all as equal and not favour one over the other).

                                              … So why doesn't my gay son deserve the same right or choice to marry as his brother and sister do … ?
                                          Marriage equality matters to a man I know who lives in Parramatta with his partner. He said:

                                              I have a very different experience from those around me. Denied to me are several simple pleasures that are not denied by law but by social convention, which prevents me from holding my partner's hand in public, and kissing him without worrying who might see, fearful of a reprisal of violence.

                                              Supporting marriage equality is more than just about civil rights, and it is more than just about justice or any matter constrained by the law. It is a simple statement of legitimacy, one directed at the larger community. It is not for the state to tell me the value of myself and my partner and our relationship, because I already know the value of my family. Instead it is time for the state to send a clear unequivocal message to my neighbours, my peers, and my fellow humanity that it finally recognizes that same intrinsic value.
                                          To allow loving couples the ability to wed the one that they love will hurt no-one. Legislating for marriage equality will have zero effect on anyone else's marriage. It will provide legal stability and recognition for two people who are seeking to commit to each other for life. If we truly believe that citizens should be equal under the laws of our country, then we cannot sustain an argument that says certain citizens are less equal than others.

                                          In recent times our parliaments have passed laws that have advanced equality for gay, lesbian, bisexual, transgender and intersex citizens. These laws have made a huge difference to the lives of our brothers, our sisters, our families, our neighbours and our workmates. We can visit our partners in hospital. We can make decisions on behalf of our partners if they become incapacitated. We can keep our homes if our partners die. Our children are legally protected and recognised as our children. Children are able to find loving adoptive families that they otherwise would have been denied. In New South Wales same-sex couples are treated equally before the law. I hope that when the Commonwealth debates the bill for marriage equality our elected representatives will again rise to the challenge of progressing equality for all couples, no matter whom they love.

                                          The Hon. NATASHA MACLAREN-JONES [12.09 p.m.]: I thank the House for the opportunity to contribute to this debate and place on the record the Liberal Party's strong legacy of supporting equal rights for those in same-sex relationships under the law and particularly in relation to their financial status. In 2004 the Federal Coalition Government under former Prime Minister John Howard recognised same-sex relationships on the basis of fairness and equality to ensure financially dependent siblings of interdependent relationships were awarded the same financial security as those of opposite sex relationships. Clearly, this motion calls on the Commonwealth Parliament to fundamentally change the Marriage Act—a Commonwealth Act, I remind members, over which this Parliament has no jurisdiction. Marriage is the most important institution that must be defended. The Act's current definition of "marriage" is:
                                              the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
                                          This definition was inserted into the Marriage Act in 2004 to prevent confusion. I have received numerous emails and have spoken to a wide range of community organisations and constituents as well as friends, many of whom are gay. Without doubt, this issue attracts a difference of opinion. This divide also exists within the gay, lesbian, bisexual and transgender community as well as the heterosexual community. Furthermore, many people conveyed the importance of civil unions as another form of partnerships beyond de facto relationships rather than marriage. In recent months I have received a high volume of correspondence from individuals defending the institution of marriage and concerned by a push from a vocal minority to change the structure of the traditional family unit. The institution of marriage is sacrosanct and has served us well for centuries. Marriage is focussed on providing stability for a child and goes beyond cultures, religions and even social trends. This social institution protects the right of a child to be born into a relationship between a man and a woman.

                                          A child has the right to a mother and a father, and individuals should take responsibility for the children they conceive. I am not saying that only married couples should have children. Many children are born into families in de facto relationships or whose parents are not in a relationship. Nonetheless, those children are loved and well cared for as part of a loving family, and they must remain the primary focus of any caregiver. Family is one of the most important foundations of our society and altering the definition of marriage will not improve a child's quality of life or the family unit. Whilst talking about equality in this debate it is important that we recognise the valuable contribution of all families in producing and raising young Australians who go on to contribute to society. As I have stated previously, those entering into marriage do so knowing that their relationship will be legally recognised by the community, and this must be respected. I do not support any change to Commonwealth law that discriminates against the rights of those who have chosen to enter into a marriage. Therefore, I cannot support this motion.

                                          The Hon. WALT SECORD [12.12 p.m.]: I take this opportunity to speak to the motion on marriage equality. While laws relating to marriage in Australia are Commonwealth responsibility, the question of gay and lesbian marriage is now debated widely in our community and around the world. About 10 countries recognise same-sex marriage, including South Africa, Canada, the Netherlands and Argentina. In the United States, Maryland is set to become the eighth jurisdiction to grant same-sex couples the right to marry. Massachusetts, Connecticut, New Hampshire, New York, Vermont and the District of Columbia all recognise same-sex marriages. The Maryland law is scheduled to take effect in January 2013. However, earlier this month North Carolina joined about 30 other States by banning same-sex marriage, while President Barack Obama and Vice President Joe Biden indicated their support for gay marriage.

                                          That said, in recent years Australia and New South Wales have undergone considerable gay law reform. In Australia the Federal Labor Government introduced more than 80 amendments to give same-sex couples equal rights before the law regarding issues such as superannuation and taxation. In 1999 the New South Wales Carr Labor Government introduced reforms to State relationships laws in relation to property interests if a relationship broke down. This included amending the definition of "de facto spouse" to include same-sex cohabiting couples. In 2008 the New South Wales Labor Government introduced further same-sex relationship reforms, including providing for a consistent definition of "de facto partner" that incorporated same-sex partners across most of this State's laws. As a result de facto couples have the same access to a wide range of legal rights and entitlements. In New South Wales on 1 July 2010 the Keneally Government commenced the operation of the New South Wales Relationship Register to make it easier for unmarried couples, homosexual or heterosexual, to prove they were in a committed or de facto relationship and have access to legal entitlements.

                                          Last year in New South Wales 420 same-sex relationships were officially registered with the New South Wales Registry of Births, Deaths and Marriages. Australian people have strong views about gay marriage with more than 60 per cent supporting the concept. However, younger Australians overwhelmingly support the right of same sex couples to marry. This suggests that an element of social norms is influencing our views on a legal rights issue. As those norms shift over time, the legal position will be less coloured. Therefore, I believe marriage equality is inevitable in Australia. I have grappled with this issue for a long time. Members of this Chamber will be aware of my views on a range of subjects. I support Aboriginal reconciliation, I am an advocate for the elderly and other minorities, and I believe in education against genocide, prejudice and racism. This leads me to my position on marriage equality.

                                          Over the years, one factor that informs my view is my personal racial background. I am the product of an interracial marriage: my father is a Mohawk-Ojibway Indigenous person and my mother is an Anglican Anglo-Canadian of European descent. As a child growing up in rural Canada I saw firsthand the prejudice towards my parents' relationship. At that time, when I was a very young child, no doubt some people felt that Indigenous people and Europeans should not marry—particularly, an Indigenous male and a European woman. If Canadian law had purely reflected some of the views of the community and that generation my parents' marriage would have been illegal. For the record, while interracial marriages were not banned, they were highly unusual and it is safe to say that they were frowned upon.

                                          Indeed, not so long ago in this country—in fact, up until the 1930s—State officials were allowed to determine who Aborigines could or could not marry. In Queensland these restrictions were to limit black and white unions, and in Western Australia it was to prevent so-called "half-castes" from marrying other Aboriginal people. It was not until 1967 that the Supreme Court in the United States ruled that a ban on inter­racial marriages was unconstitutional and removed that stain from American society. The reality of today is twofold. Firstly, my parents remain happily married and have been exceptional role models to their family and our community. Secondly, we all agree that withholding the right to marry on racial grounds is repugnant. In my view the parallels on the prohibition on inter-racial marriage and same-sex marriage are clear. We can no more deny someone's right to enter a civil union based on their gender or sexual orientation than we can on their skin colour. Therefore, not having the right to marry restricts a person's full citizenship.

                                          On human rights grounds, all Australians must be treated fairly and equally, regardless of their sexual orientation. All people are equal before the law and should be entitled to the same fundamental rights. Therefore, I believe allowing same-sex couples the right to marry removes a legal and social discrimination: it supports full and equal citizenship. If we prohibit one section of the community from marrying another it violates their human rights. Therefore, I support the motion before the Chamber that the Federal Government should amend the Commonwealth Marriage Act 1961 to provide for marriage equality. This motion is similar to the one passed successfully by the Tasmanian House of Assembly in September 2011. However, I stress that just as I am cautious about the role of personal beliefs in determining laws I am equally cautious about any attempt for the law to impinge on personal religious beliefs.

                                          I acknowledge the strongly held views against same-sex marriage on both sides of this Chamber and on the crossbenches. I also agree that sanctioning gay marriage will not remove homophobia and discrimination in our society. Many people, particularly those of strong faith, believe that a marriage can only be between a man and a woman. I therefore strongly agree that religious institutions should not and must not be forced to officiate marriages that they do not wish to.

                                          I conclude my comments with a brief personal note. On 18 August 2006 I attended a same-sex civil union celebration in Sydney between two male friends, Mr Justin Di Lollo and Mr Marek Craker. It was conducted under United Kingdom law at the British Consulate-General with the assistance of the British consul-general, as Mr Craker is a British citizen. In total, the couple has been together for more than 16 years. They are still together in a loving and committed relationship. I ask: On what grounds could I possibly deny their right to enjoy the same public recognition of their commitment as I, a heterosexual, have access to? The issue of marriage equality for same-sex couples is about the granting of full citizenship. We all deserve the same and equal recognition under Australian law. In conclusion, I acknowledge my colleagues the Hon. Helen Westwood and the Hon. Penny Sharpe for their hard work and commitment to this policy area. I commend the motion to the House.

                                          The Hon. DAVID CLARKE (Parliamentary Secretary) [12.20 p.m.]: The law of Australia defines marriage as a union between a man and a woman to the exclusion of all others. It was a law that, when passed, was supported by the Labor, Liberal and National parties and it is a law that I support and will continue to support. It is a law that represents what the view of marriage by mankind has been since the commencement of the recording of history. It has been accepted as such by every culture, every society, every civilisation and every major religious and faith-based tradition at every point of time in the history of the world.
                                              Marriage, that is a marriage between a man and women, is a public institution and is, as the anthropologist Claude Lèvi-Strauss stated, "a social institution with a biological foundation". Its heterosexual nature is pivotal to society because it is the relationship by which, traditionally, mankind has reproduced itself. Its heterosexual nature is pivotal to society because it is fundamental to a child's right to be raised, where practical, by a mother and a father. It is the Government's duty to ensure that this fundamental right of children is protected and the law in this nation reflects, as it does presently, that fact. If the heterosexual nature of marriage, as presently defined by law, is altered to encompass homosexual relationships the basic right of children to be raised, where practical, by a mother and a father will be torn to shreds.

                                          I do not doubt that it may well be that there are children raised by same-sex couples who are cared for and loved as much as any child raised in a heterosexual union. But the scientific evidence, I believe, shows that, on the whole and with all facts considered, a heterosexual relationship is the most conducive to the welfare of a child. Some people contend that public opinion has turned in favour of same-sex marriage and that the majority now favour such relationships. However, in the United States of America it is my understanding that when the issue has been tested by a democratic vote in various States, including liberal California, the citizens have invariably rejected same-sex marriage. A recent national survey in the United States found that a majority still opposed such relationships. If the issue were put to voters in Australia I believe it would be defeated.

                                          Invariably those who advocate same-sex marriage do so in the name of human rights. However, it is worth noting that the European Convention on Human Rights does not require member state governments to grant same-sex couples access to marriage. The European Court of Human Rights has determined, even in recent days, that it is not discriminatory to refuse same-sex couples access to marriage or a violation of the right to respect one's family and private life.

                                          I note that the Hon. Cate Faehrmann has said she will support a proposed amendment that will ensure that religious institutions are not forced to solemnise marriages that go against their religious conviction. The Hon. Cate Faehrmann made the point that she did so reluctantly and only to assist the passage of her bill. The member's obvious reluctance to respect the right of religious institutions not to be forced to solemnise same-sex marriages because it would infringe their religious convictions greatly troubles me. The Greens talk of human rights but apply it selectively and only when it suits them. The Greens are not so much for human rights when it does not suit The Greens and the reluctance of the Hon. Cate Faehrmann to accept this proposed amendment greatly troubles me.

                                          I am aware that our time for debate on this matter is limited and others wish to speak. I will finish by saying that I cannot and will not vote to approve of same-sex marriage, not today and not any day. It is an abuse of the right of children to be brought up by a mother and father, where possible; it is a contradiction of the natural law; it will lead invariably to the abuse of human rights of others; it is against my own religious conviction; and I believe that if given a chance to vote a majority of the Australian community would oppose it too.

                                          The Hon. SARAH MITCHELL [12.25 p.m.]: I speak on the motion moved by the Hon. Cate Faehrmann relating to marriage equality. I say at the outset that as a member of The Nationals I am very pleased that Coalition members have been granted a conscience vote on this motion. This is the third conscience vote that I will have participated in since becoming a member of this House. All three matters have been challenging and have required me to make considered and personal decisions. While it may sound simplistic, I reached my decisions on the previous conscience votes based on what I thought in my head and what I felt in my heart. My decision on the motion before the House is made on the same basis.

                                          Until recently issues regarding marriage and marriage equality were not something that I often thought about. That is not to say that I am ambivalent about the issue. In fact, for as long I can remember I have held the same view on marriage equality that I hold today. Until recently I never thought that I would be in a position to have any influence or make any contribution to a debate on marriage equality other than stating my views in conversations with my family and friends. As such, my interest in the issue has been generally limited to those discussions which, while heated at times, were always tolerant and respectful. I note that the words "tolerance" and "respect" are included in paragraph (d) of the amendment moved by my colleague the Hon. Trevor Khan, which states:
                                              (d) I draw the attention of the House to paragraph (d) of the motion which calls on all participants in the debate on marriage equality to treat those with differing views with respect, dignity and tolerance.

                                          I accept that members of this House will have differing views from mine on this issue. I have listened to their contributions with tolerance and without judgement, and I will respect them when we leave the Chamber today. I ask that they extend the same courtesy to me. As I said, until recently I had not often thought about issues around marriage and marriage equality. My interest has not been aroused by debates on marriage equality in parliaments across Australia but rather by an event in my own life. In fact, I can remember the exact day when issues relating to marriage and marriage equality increased in relevance for me. It was Saturday 9 April 2011, the day I was married.

                                          Marrying my husband, Anthony, was the best day of my life, closely followed by the day he asked me to be his wife. At that point we had been together for four years. We shared a home, finances and our lives. We were an acknowledged couple in the eyes of our families, friends and community. We were also, for all intents and purposes, in a legal union according to the laws on de facto relationships in this country. There was no reason for us to change any aspect of our relationship in order to spend the rest of our lives together as a couple. But for us that was not enough. We wanted to be married and we had the opportunity to do so. After Ant proposed, technically, nothing in our day-to-day life changed but, in reality, everything in our life changed. We had taken the first step towards making a lifelong public and legal commitment to each other in the form of marriage.

                                          Our wedding day was full of laughter, tears, joy, well wishes from loved ones and, if I am honest, probably a little too much champagne. Since our wedding day every day has been even better than the one before. We are completely committed to one another and to our marriage. We are hopeful about our future and excited about the years that lie ahead. I now know how wonderful marriage is and how incredible it feels to be part of a married couple. Because of my experiences over the past 12 months I now understand the inherent need to be able to legally marry the person you love. For this reason I support marriage equality and I will support the motion.

                                          I am fortunate to have many close gay friends and family members. If I did not support this motion I would not be able to look them in the eye. I would feel as though I valued my relationship above theirs. In good conscience I could not do that because I want each and every one of them to be able to experience marriage, as I have. I want them to experience a wedding day full of laughter, tears, joy, well wishes from loved ones, and too much champagne. I want them to realise that every day since their wedding has been even better than the one before. I want them to be completely committed to their spouse and to their marriage. I want them to be hopeful about their future and excited about the years that lie ahead. I want them to experience how wonderful marriage is, and how incredible it feels to be part of a married couple.

                                          In supporting this motion today, I know that there will be members of this House, of my party, of my community and even of my own family whom I respect enormously but who I know will not agree with me. But I also know that there will be members of this House, of my party, of my community and of my family who will wholeheartedly agree with me for offering my support today. I have made my decision based on what I think in my head and what I feel in my heart. My conscience tells me to support this motion.

                                          The Hon. Dr PETER PHELPS [12.30 p.m.]: I rise to say, extremely briefly, that I believe paragraph (b) of the motion is ultra vires the constitutional limitation of this Parliament. I do not support paragraph (a) because I believe that marriage should be privatised. As my speech is in a form that enables it to be incorporated, I seek leave to have it incorporated in Hansard, to allow those who do not have such speeches to be able to speak in this House.

                                          Leave granted.
                                              This motion comprises two clauses, the first in relation to marriage, and the second in relation to the Federal Parliament. I will start with clause (b). This clause is, in my view, ultra vires this Parliament, for a variety of reasons. This is the Parliament of New South Wales. It is not the New South Wales debating society. The Constitution of this State directs us very specifically on the role of the New South Wales Parliament. I quote from section 5 of the New South Wales Constitution:

                                              The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever ...

                                              I repeat: "subject to the provisions of the Commonwealth of Australia Constitution". I also remind members of section 52 (xxi) of the Australian Constitution:

                                              The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to ... marriage;

                                              Let us be quite clear on this point: the Australian Constitution explicitly reserves the legislative agenda on marriage to the Federal Government. Now while there has been some mixture of responsibilities, the inexorable trend in the courts since the Engineers Case and continuing to this day, with Pape's Case, has been to extend the reach of the Federal Government.

                                              Is anybody seriously arguing that there is a discernable trend, in the High Court, to not only grant the unenumerated powers to the States, but to actually start giving the States those powers reserved for the Federal Government? Yet this appears to be the conceit which lies at the heart of part (b) of this motion.

                                              To exemplify how presumptuous the motion, as written, is—how would we feel if the Federal Parliament sought to direct us as State members to vote a certain way on a certain issue? Would we be happy with that? Or would we think it arrogant and hubristic?

                                              Or perhaps a more appropriate analogy would be this: imagine if a local council sought to direct us to vote a certain way on a matter in which the council had no interest or legal standing. Would we consider that a valid use of the council's time, or would we consider it to be an impertinence? I think I know the answer, and I am sure that other members do too. We mock Marrickville Council mercilessly when it attempts to engage in foreign policy—a power, it should be remembered, which is reserved to the Federal Government under Section 51 (xxix). Why should we not now be mocked for falling into that same trap?

                                              While there are a broad range of matters that fall within the purview of State government, there are many matters which do not and, yet, are the subject of notices of motions before this House. This is one of those occasions. We all have views on a range of important topics. But this is a State Parliament, and not, as I said earlier, a debating society. Members interested in debating matters which are not relevant to the administration of the state of New South Wales will know of a range of other outlets for such a conversation.

                                              But this Chamber is not the place to do so. After all, what is next? I have strong views on the defence forces of the Commonwealth, but are we to look forward to motions on the utility of Main Battle Tanks, or Air Warfare Destroyers, or F-35 fighter-bombers in this place? And just because you feel strongly about something, it does not make it any less ultra vires to the peace, welfare and good government of this State. If you are concerned about Federal issues there is an option—leave this place and run for office at a Federal level. I understand that the Hon Cate Faehrmann is planning to do just that, and I congratulate her for giving it a go. I hope she gets the numbers to win her preselection—she will certainly be a substantial improvement of the last two Greens preselected from New South Wales.

                                              But do not drag into this Parliament issues which are, constitutionally, the unchallenged and exclusive preserve of the Federal Parliament. For this reason, I will be voting against the motion in the form in which it has been presented to us here today.

                                              But if we intend to violate the intent of the Constitution, why not look at the concomitant part of marriage—namely divorce? Let me remind members that divorce is, like marriage, the exclusive preserve of the Federal Government. Section 51 (xxii) states:

                                              The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to ... divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;

                                              I have strong views on the divorce laws of this country, and the detrimental effects that these have on children. Shall we have a debate on those too? Shall we look at the grounds for divorce, and to Garfield Barwick and his Matrimonial Causes Bill? Why are we not debating whether, as Barwick suggested:

                                              ... the operation of the Family Law Act, so far from tending to maintain the institution of marriage, tends to endanger it. The breakdown of family life in recent times owes something, I think, to the introduction and operation of the Family Law Act.

                                              Should we even have a one-size-fits-all rule for divorce? Or perhaps we could go even further and ask ourselves: why does the government seek to involve itself in the issue of marriage and divorce in the first place? After all, the British government saw no need to concern itself with such matters until the 1750s. In other words, for seven-eighths of the Christian era the State did not give a damn about who was marrying whom.

                                              And this leads me to my own view on this matter: privatise marriage. What do I mean by that? Simply this—that the institution of marriage is, fundamentally, a private contract, voluntarily entered into by two adults. So why does the State need to get involved at all? In the comments that follow, I acknowledge—and will quote liberally from—the brilliant work done by David Boaz, in Slate magazine, in 1997.

                                              Why should the government be in the business of decreeing who can and cannot be married? Why should anyone have—or need to have—State sanction for a private relationship? As governments around the world contemplate the privatisation of everything from electricity to Social Security, why not privatise that most personal and intimate of institutions, marriage?

                                              When I say privatise marriage, I refer to two slightly different things. One is to take the element of State sanction out of it completely. If couples want to cement their relationship with a ceremony or ritual, they are free to do so. Religious institutions are free to sanction such relationships under any rules they choose; no-one's private life would have official government sanction—which is how it should be.

                                              More importantly, and this is where the element of divorce comes in, marriage is to be treated like any other contract: the State may be called upon to enforce it, but the parties define the terms. When children or large sums of money are involved, an enforceable contract spelling out the parties' respective rights and obligations is probably advisable. But the existence and details of such an agreement should be up to the parties.

                                              Some say that marriage is a formal, public institution that only the government can grant. But that is a totally a historical view. The fact is that in the early Middle Ages all that marriage implied in the eyes of the laity seems to have been a private contract between two families. For those without property, it was a private contract between two individuals, enforced by the community sense of what was right.

                                              By the sixteenth century the formally witnessed contract, called the "spousals," was usually followed by the proclamation of the banns three times in church, but the spousals itself was a legally binding contract. As I mentioned earlier, it was only with the Earl of Hardwicke's Marriage Act of 1754 that marriage in England come to be regulated by law. So why did it come about? As legal historian Leah Leneman has written:

                                              "The only thing necessary for a legal marriage was the free consent of both parties, as long as they were of age (twelve for girls, fourteen for boys), were not within the forbidden degrees of kinship, and were free of any other marriage. Neither the consent of parents nor the presence of witnesses were required. A marriage could be established by ... the statement of consent by both parties, or by ... a promise of marriage in the future, followed by sexual intercourse. Because such things happened in private, various types of evidence came to be accepted in disputed marriage cases, such as letters in which the man wrote, or referred, to the woman as his wife, "habit and repute" (that is, the couple cohabited and were considered by their neighbours and relations to be husband and wife), and so forth.

                                              A "regular" marriage was one for which the banns were publicly proclaimed and which was carried out in the parish church, but an "irregular" marriage was as legally binding. This was true in both England and Scotland before 1754, and in both countries the eighteenth century saw a marked rise in such marriages. Although a minister was not requisite, most couples preferred to have some kind of ceremony and "certificate," so there emerged "celebrators" of irregular marriage who made a living out of this trade. Such "celebrators" did not ask awkward questions and were quite willing to forge names or dates to please their customers. So their certificates alone could never prove a disputed marriage, but they formed part of the evidence.

                                              The "irregularity" lay in the ceremony, not in the status of the couple once married, and there was no stigma attached to being married irregularly rather than regularly. The difficulty arose when one party claimed to be married and the other denied this. The national consistory court ... was the only one in Scotland that could determine whether a legal marriage existed, though litigants could appeal to the higher civil court, the Court of Session, and from there to the House of Lords. The process was termed a "Declarator of Marriage" and could be brought by either sex. Although most were brought against a living spouse, it was permissible to bring such a process against a surviving heir who disputed the validity of the widow or widower's claims.

                                              After a series of difficult cases in the early 1750s:

                                              ... the Lords to press[ed] for new legislation to prevent clandestine marriages, something Lord Hardwicke had long advocated ...

                                              Under Hardwicke's Act, from 1754 onwards only marriages for which the banns had been proclaimed and which took place in a parish church, unless under special license, were legal, although marriages conducted under Scottish law were also recognized in England.

                                              Hardwicke's Act was, therefore, the logical culmination of a long struggle against marital irregularity, which was only really a problem when allegations of bigamy and/or divorce proceedings arose.

                                              But the law of unintended consequences inevitably rears its ugly head when governments intrude into areas that they should not; and, since that time, government has continue to intrude upon the marriage contract. In Australia, we had a standard formula, inherited from British law. Then, over successive generations, legislatures and courts have started unilaterally changing the terms of the marriage contract. Since the mid-1970s we have had no-fault divorce. The new arrangements applied not just to couples embarking on matrimony, but also to couples who had married under an earlier set of rules.

                                              Many people felt a sense of liberation; the changes allowed them to get out of unpleasant marriages without the often contrived allegations of fault previously required for divorce. But many people were hurt by the new rules, not the least of which were children who were left confused and hurt by the arbitrary dissolution of their family.

                                              There were women who had understood marriage as a partnership in which one partner would earn money and the other would forsake a career in order to specialise in homemaking. There were men who, expecting 1950s picket-fence stability, found their wives leaving them for the elusive—and often illusory—freedoms promised by second-wave feminism.

                                              So why not privatise marriage? Make it a private contract between two individuals. If they wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and maintenance in the event of divorce, they could do so. They could specify divorce actions were only possible under fault-based principles. Less traditional couples could keep their assets separate and agree to share specified expenses. Those with assets to protect could sign prenuptial agreements that courts would respect. They might be time-limited, with a review of the contractual relationship after a period of years. Marriage contracts could be as individually tailored as any other contract in our wonderfully diverse capitalist world.

                                              For those who wanted a standard one-size-fits-all contract, that would still be easy to obtain. Newsagents could sell marriage forms, just as they currently sell statutory declarations. Couples would then be spared the surprise discovery that outsiders had changed their contract without warning. Individual churches, synagogues, and temples could make their own rules about which marriages they would bless—or not. And that "not" is vitally important. Government should not be in a position, through anti-discrimination Acts or whatever, of forcing private bodies to accede to the will of outsiders.

                                              Privatisation of marriage would allow people to marry the way they want to: individually, privately, contractually, with whatever ceremony they might choose in the presence of family, friends, or God. Under a privatised system of marriage, courts and government agencies would recognise any couple's contract—or, better yet, eliminate whatever government-created distinction turned on whether a person was married or not.

                                              Marriage is an important institution. But the modern mistake is to think that important things must be planned, sponsored, reviewed, or licensed by the government. The contemporary debate over marriage unfortunately revolves around a collectivist, statist premise. I fundamentally reject that premise. I refuse to take part in the debate, if that debate is going to be skewed by such a priori assumptions.

                                              My own view is this: let us get the government out of marriage and allow individuals to make their own marriage contracts, as befits a modern, secular society that rejects statism and places the freedom of the individual as its fundamental objective.
                                            The Hon. PAUL GREEN [12.31 p.m.]: I thank all members for the way that they have conducted themselves. The different views that have been shared here today are valuable. I hope the debate will continue at this level. I rise on behalf of the Christian Democratic Party to speak briefly to the motion. I am sure the House finds it of no surprise that the Christian Democratic Party does not support the motion moved by the Hon. Cate Faehrmann regarding the acknowledgement of same-sex marriage. We agree with the Prime Minister on maintaining the current definition of "marriage" under the Marriage Act 1961, which affirms marriage is "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life". Many of us have core values. I know that members of this Chamber have differing core values, but those core values frame our worlds, as we have heard from the Hon. Sarah Mitchell and others. Those core values frame our worlds—some religious, some from life experience, some for other reasons.
                                              Today I stand here to represent many of my constituents and their world view and their core values—the core values that come from the Judeo-Christian faith. Many of those are the same core values that have shaped many of our current laws and our country's laws. My constituents find the institution of marriage to be one deeply religious and spiritual act under the blessing of God. Our biblical world views teach us that marriage is created by God, for relationship and procreation, and that this is what underpins our entire society. I appreciate that there are others who have different views—views to which they are entitled, as that is what we call democracy and freedom of speech. It is my deep conviction to my faith that Christ is the head of my core values and those of the church I represent, not the Parliament. I will vote according to that conviction and my core values.
                                                The Hon. SCOT MacDONALD [12.33 p.m.]: I support the motion. I place on record that we are dealing with a Federal matter. However, the motion is important. I think it goes beyond being symbolic; I think it adds momentum on the issue and puts pressure on people to think more clearly and deeply about same-sex marriage as the issue moves towards a Federal decision. My motivation is mainly love and regard for my family, friends and community. I too say, as the Hon. Sarah Mitchell said so well, that I could not look gay friends and family members in the eye if I did not support the motion. That applies particularly to my family. I have some gay cousins, and they are beautiful people. I could not look them in the eye and say they are any less worthy. One has children; and, as far as I know, they are bringing them up in a very responsible and proper way. So, for me, this matter is deeply personal. I appreciate that every member has family friends. As I say, that is one of my primary motivations.
                                                  I cannot countenance any discrimination in our community, real or imagined, technical, legal or whatever. In some ways this motion on same-sex marriage is even more important for those who live in regional areas because, as the Hon. Trevor Khan mentioned, it is often difficult to come out; there may not be in regional areas quite the same level of tolerance and diversity that exists in the rest of the country—although I think that attitude in regional areas is breaking down. In the Armidale Express a poll, driven by a certain headline, showed support for gay relationships at more than 80 per cent. That is very gratifying. Of course, there are some interesting blogs on the issue.
                                                    However, in regional areas children of persons in gay relationships have a history of alienation, discrimination and bullying. Correspondence I have received shows they look to people like me and parliaments, State and Federal, to frame this debate; and if they see acceptance and tolerance I think their lives will be better. I have met quite conservative parents of gay children. I thank the Hon. Cate Faehrmann for that, but I think I had been on a bit of a journey on this issue. To see parents of gay children who had suffered opening up in an appealing and heartfelt way and seeking support for same-sex marriage was quite compelling for me.

                                                    I do want to add something of a Liberal perspective on same-sex marriages. That might seem a bit strange, but I came to this Parliament about a year ago thinking that one of my guiding principles will always be that people should have opportunities and that we should not diminish those opportunities. I would like to think we can change what has been happening to some gay people and their suffering as they have moved into education and training: they have found in the workplace and other environments people who have demeaned them. Some gay people have had to change careers or had less fulfilling lives or careers as a result. From a peculiar sort of liberal perspective, I do not think that is good for our society. This is a fantastic country because we broaden outlooks and give opportunity to everybody, marking Australia as one of the best countries in the world. We give people of all backgrounds or colour the right and the opportunity to have a productive and fulfilling life. I regard same-sex marriage as a continuation of that. That is a little of the Liberal perspective.

                                                    I want to address briefly the church perspective. I have had discussions with the Hon. David Clarke on this issue. We may disagree on some things, but I appreciate that he engaged me positively in a debate about this matter. He was one of the first to say to me, "I respect your views, even though we may disagree." As an infrequent churchgoer, I think the church should, and will, embrace same-sex marriage. As I said to the Hon. David Clarke, Jesus washed the feet of the least well off in his society. We have those who point to the Bible and interpret parts of it to support their view that marriage should be between a man and a woman, but I believe that actions speak louder than words. The Jesus that I have a little bit of knowledge of—and I bow to those who are far more knowledgeable about this than I am—washed the feet of everybody, the least powerful, the poorest and the those who had been most discriminated against. I think actions speak louder than words, and I think He would embrace this motion today.

                                                    It is also compelling to me that back in the Vietnam war days when debates were raging about lowering the voting age from 21 to 18 people then said that if you are good enough to fight for your country you are good enough to vote. We have gay people and homosexual people in our defence forces. If it is good enough for them to put their life on the line, to be wounded or to die, it should be good enough for them to enjoy all the rights and advantages that we confer on members of our society, including equal marriage. I thank everybody for their heartfelt contributions. I have not seen any hostility displayed on this issue, and I appreciate the people who engaged with me in a positive and respectful way. I support the motion.

                                                    Mr DAVID SHOEBRIDGE [12.40 p.m.]: In 1958 Reverend Dr Martin Luther King said:
                                                        When any society says that I cannot marry a certain person, that society has cut off a segment of my freedom.
                                                    It is with that in mind that I support this motion moved by my Greens colleague calling for this House to support marriage equality. I acknowledge that those who have contributed to this debate from both sides of the argument have done so from their own conscience. However, many of those who have opposed marriage equality have sought to support their position from their personal understanding of their religion. For me, the best way to address that argument based on religion is to look at the lessons of history where the same argument has been used to prevent couples of mixed race from marrying. The balance of my speech I have in a written form and I seek leave to incorporate it in Hansard.

                                                    Leave granted.
                                                        In June 1958 Mildred Jeter, a woman of African and Rappahannock Native American descent married Richard Loving a white man in the District of Columbia in the United States. On her marriage, Mildred took her husband's name and was known from then as Mildred Loving.

                                                        After their marriage the couple returned home to the State of Virginia where they set up house.

                                                        They were promptly arrested and prosecuted. Their "crime" was known as "miscegenation" or inter-racial marriage. At the time this was a felony under the Virginia Criminal Code, punishable by imprisonment of between one and five years.

                                                        The Sherriff who arrested them, Garnett Brooks, did not care that they had a legal marriage in Washington DC, because he knew that it was wrong for such people to marry. In his State of Virginia, inter-racial marriage was an offence "against the peace and dignity of the Commonwealth." Sherriff Brooks' public comment was that:

                                                        "The Lord made sparrows and robins, not to mix with one another."

                                                        On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to a year's imprisonment. The trial judge then suspended the sentence for a period of 25 years on the condition that the Lovings leave the State of Virginia and not return together for 25 years. He said in his judgment:

                                                        "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

                                                        They were run out of town for the crime of marrying the person they loved.

                                                        In 1963 the American Civil Liberties Union decided to challenge the Virginian laws against miscegenation and the Lovings agreed to be a test case in the United States' Supreme Court. Their chief lawyer, chief lawyer, Bernard Cohen, met with Mr Loving to tell him of the legal arguments he would be mounting in his favour.

                                                        But Mr Loving had no interest in legal niceties. He had only one instruction to give his lawyer: "Mr Cohen", he said "Tell the court I love my wife."

                                                        As the law often does, it moved slowly, and it was not until 12 June 1967 that the Supreme Court delivered its verdict on Virginia's marriage laws. Chief Justice Warren, who delivered the majority opinion reversing the Loving's convictions and declaring the Virginian law unconstitutional said:

                                                        "Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality."

                                                        Tragically Richard Loving died in 1975 at the hands of a drunk driver. Mildred Loving lived a further 33 years, she never re-partnered, and remained essentially a private woman. She was however drawn to make a rare public statement on June 12, 2007, being the 40th anniversary of the Supreme Court decision of Loving v. Virginia. The final paragraphs of Mildred's statement read as follows:

                                                        "Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people's religious beliefs over others. Especially if it denies people's civil rights.

                                                        I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.

                                                        When, just a year before her death. Mildred was asked about her remarkable life and the landmark court case run in her name she replied:

                                                        "It wasn't my doing. It was God's work."

                                                        Fifty-four years ago Mildred and Richard Loving stood up against a law we now see as repugnant, one that prevented people of different races marrying. Fifty years from now I know that we will look back on this debate and ask ourselves how people could have sought to use religion to argue against any loving couple having the right to marry each other.

                                                        For those who say that allowing same-sex couples to marry will degrade the institution of marriage, I can only say that I am happily married and, for myself, the institution of marriage will be enriched, modernised and enhanced by opening it up to all loving couples. This motion is not an attack on the institution of marriage; it is a motion calling for the renovation of marriage. I commend the motion.
                                                    The Hon. HELEN WESTWOOD [12.41 p.m.]: I do not have a prepared speech; I plan to speak from the heart on this motion. I will keep it much shorter than I originally planned to because, regretfully, we are running out of time. As many members will know, for me this is a deeply personal debate. Today my challenge will be to speak in this debate without crying. I begin by commending all those who fought the long fight to remove discrimination against all gays, lesbians, bisexual people and those of transgender. This is for me the last plank, which is why I am finding this so emotional, and I apologise to the House for that.
                                                      I am probably a person who has lived openly in a same-sex relationship for the longest period of time of any member in either this place or the other place. For me, the important point about this debate is why we have so few people who identify as same-sex attracted in positions of leadership, particularly political leadership in the lower Houses of all of our Parliaments around this nation. The attitudes and the discrimination discourage us from taking a public role. We leave ourselves open to discrimination, and I have certainly experienced quite a level of discrimination against me in the political field because of my sexuality and I have certainly experienced it in the community.
                                                        Regretfully, we know from time to time that members of Parliament whose sexuality is being questioned or who are not out are often targeted by their political opponents—it can be within their parties or it can be by some in other political parties. It is important that we acknowledge that there are many members who have been in this place before us who were gay or lesbian and could not be out because of their fear of that being used against them politically. It is no accident that the majority of out members of Parliament are in the upper Houses right across our nation: there are very few in the lower Houses.

                                                        I acknowledge the contributions of other members, but I particularly want to talk about the Marriage Act. I understand that others have raised the issue of their faith and their religion. I accept that if it is the law of your faith or if it is part of your belief system that homosexuality is a sin you will live according to that and you will not support same-sex marriage. The Australian Marriage Act is a law of our land. It is the law that all Australian citizens are governed by, and it is my belief that all of us as citizens of this nation are equal. All of our laws should be inclusive; they should not discriminate against any groups in our society, but our Marriage Act does. I also argue very strongly that marriage equality is a human rights issue. All of us as an Australian community have a right to have our human rights upheld.

                                                        Most importantly, as long as we have laws in our country that discriminate against one group or another I believe it legitimises discrimination in the broader community against that group, particularly in areas where I have lived, such as western Sydney, which have very diverse communities. It is very important that members of the gay, lesbian, bisexual and transgender community are recognised as equal citizens before the law. I accept that that will not immediately lead to a change in attitudes. I do not believe that it will remove all discrimination immediately, but it will lead to that. Most importantly, we need leadership on this issue. We need political leaders, religious leaders and community leaders who lead our community into removing discrimination and who see all of our citizens as equal before the law.

                                                        I commend all of those who have been involved in getting the debate to this point. I am disappointed that we are not going to have more time to debate the issue, and I can see that, regretfully, a number of members are distracted by some debate that is continuing about the amount of time allowed for this debate. I quote the Hon. Michael Kirby, who has said, "Anyone who would deny another human being a loving, supportive, intimate companion on the journey through life is not a kind person." Many of us have quoted the Hon. Michael Kirby because he is a very wise man and his words are worth listening to. Also constantly raised is the issue that the institution of marriage has such a long history that it cannot be changed. History demonstrates otherwise. Marriage has changed. Our laws have reflected the fact that marriage has changed over the life of this nation and of many other societies. The other argument we often hear is that marriage is for procreation.

                                                        The Hon. Cate Faehrmann: Point of order: I am finding it very difficult to hear the honourable member.

                                                        The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! Members will reduce the level of audible conversation.

                                                        The Hon. HELEN WESTWOOD: I must say this is one of the most difficult environments in which I have had to deliver such an emotional and passionate speech. As I was saying, another issue that is often raised is that marriage is for procreation. A lot of members spoke about marriage as the institution in which children are raised, but the fact is that many marriages are long lived and do not produce children. Many couples live happily and remain very in love and they have not had children. Equally, our Marriage Act allows for people to marry later in life when they are past the biological age at which they can reproduce. People in their fifties and their eighties are allowed to marry, so it is illogical to argue that marriage is only for procreation and that is why the Marriage Act should not be amended. The evidence tells us otherwise.

                                                        Another important point is that when our laws discriminate against one group it leads to discriminatory attitudes in the broader community. That is particularly important for young people across our nation. In New South Wales young gays and lesbians growing up in regional communities or in Sydney need to feel that they are loved and accepted for who they are. They must feel that they have the right to live long and happy lives with their partners. I support the motion before the House.

                                                        The Hon. MICHAEL GALLACHER (Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [12.54 p.m.]: I move:
                                                            That this debate be now adjourned until the next sitting day that Private Members' Business takes precedence.

                                                        I also indicate to the House that I intend to seek an extension of time for the debate to give members who have not been able to speak an opportunity to do so, thereby ensuring that all members who wish to speak have that chance.

                                                        Motion for adjournment of debate agreed to.

                                                        Debate adjourned and set down as an order of the day for a future day.

                                                        [The Deputy-President (The Hon. Jennifer Gardiner) left the chair at 12.55 p.m. The House resumed at 2.30 p.m.]

                                                        Pursuant to sessional orders business interrupted at 2.30 p.m. for questions.

                                                        QUESTIONS WITHOUT NOTICE
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