How Australia's lack of human rights protection is hurting marriage equality
Last week, when I googled marriage equality, a news story popped up about challenges to marriage equality bans in 29 US states.
When I clicked through, a small note said the article had been amended to 30 states.
This speaks to the blinding speed at which marriage equality is marching across the US.
Naturally, Australians ask why are we so slow in comparison?
The answer is not public opinion; marriage equality support runs at 65% in Australia compared to 55% in the US.
Neither is the answer any great difference in the attitude of politicians.
Australia’s ultra-conservative caucuses are nowhere near as powerful as the US Tea Party.
The major difference is that US federal and state constitutions protect rights to equal treatment, privacy and marriage.
No such protections exist in Australia.
The US also shows marriage equality can also be won by the vote of politicians, as it was in places like New York and Vermont, a route Australia will inevitably take too.
But having human rights protections has moved reform forward, not only through binding judicial decisions, but by exposing the arguments against marriage equality as a whole lot of hot air.
By comparison, in Australia there’s no independent umpire with the authority to adjudicate rival claims for and against important reforms.
Instead, marriage equality remains the plaything of partisan interest.
It didn’t have to be this way.
The Hobart lawyer who largely wrote Australia’s Constitution, Andrew Inglis Clark, proposed a provision that would have guaranteed equality.
Clark, a great admirer of the US, believed the best way to protect minorities was for power to be dispersed, not just between state and federal governments, but between parliaments and the courts.
Allowing courts to judge human rights abuses was a critical part of this dispersal of power.
Unfortunately, those who feared equal treatment might be extended to non-whites opposed Clark’s equality provision.
If Clark was alive today I have no doubt he would see the failure of politicians to deal with marriage equality as vindication of his original proposal.
My hope is that at least some of those people frustrated by the slow pace of marriage equality will be inspired to pick up where Clark left off and provide Australians with the human rights protections we deserve.