When I do becomes you can't
September 3, 2004
Jacqui Tomlins, her partner, Sarah Nicholls, left, and their son, Corin
Jacqueline Tomlins petitioned the Family Court to have her legal Canadian marriage to her partner Sarah validated in Australia, but she didn't bank on the Government amending the law to prevent it. Now she wants to know why.
Last week my partner and I celebrated our first wedding anniversary. Twelve months ago, we had forsaken the Melbourne winter and taken our baby boy to spend the summer with his grandparents in Toronto. We had no plans other than to spend lazy days at the family lake-side cottage, watching our son and his cousin learn to crawl. But half way through our trip things took an unexpected turn. Gay marriage became legal in Canada.
We were sitting in the car driving to Sarah's parents when we heard it on the radio and, to be honest, it took a while to sink in. We'd been together for 12 years, lived under the same roof for most of that time and had a child, and had hopes for more. We felt like a married couple. We looked and behaved like a married couple. But, of course, we weren't.
Slowly, the realisation dawned on us. We could get married! I mean, legally. Properly. Not a commitment ceremony, not a civil union, but a legally sanctioned marriage. It didn't take long to make the decision, especially as Sarah's parents were so keen. It seems mums everywhere like to see their daughters married, even if it's to another woman!
Time was short and the budget limited, but we fixed a date, sent out invitations, booked caterers and went shopping: a red, spaghetti strap dress from a boutique in Montreal for me, a bright blue floral print, sweeping and gorgeous for Sarah. We'll go big or go home we said.
Despite the distance, the cost, the short notice, kids, work and busy lives, friends and family flocked from all over: my brother and sister from Perth and our best friends from Melbourne, with their young children in tow, old college friends from all over Canada, Britain, Spain, Bermuda, and even my 76-year-old aunt from the US. (Wouldn't miss it for the world, girls!)
They said this wedding was different, somehow. Special. It had been hard fought. It was everybody's first same-sex wedding and that meant something.
What was so strange about the whole thing was how normal it all felt, in large part, I think, because that's the way people treated it. I don't mean our friends and family, or the gay community, I mean the woman in the jewellery store who sold us our rings, the people from the party-hire place, the delivery guy, the mail-man, the caterers. They all thought it was a great thing. They said it made them proud to be Canadian.
We returned home unclear about the status of our marriage and lodged — along with a recently married gay male couple — an application in the Family Court seeking clarification of our legal position. We travel between Canada and Australia a lot; were we going to have to play "Now you're married, now you're not" for the rest of our lives?
Last week we were meant to be in court to hear the progress of that application, but that was not to be. The recent Marriage Amendment Bill, rushed through Parliament specifically to thwart our application — Attorney-General Philip Ruddock said so in Federal Parliament — means that our marriage cannot be recognised.
Over the past few months we have watched quietly from the sidelines as the arguments raged. The Government, the Labor Party, and even the Christian right variously said this was not about "attacking gays and lesbians", but about "protecting" marriage and the family, the bedrock institutions of our society. But no one ever explained how my marriage threatened theirs, or what exactly they needed protection from.
If the institution of marriage can survive no-fault divorce, "open" relationships, and Britney Spears' drunken one-night courtship followed by a wedding ceremony the following day, how is it suddenly so threatened by the marriage of two people — forsaking all others — who happen to be of the same sex?
How do Sarah and I and our son, living our quiet, law-abiding and boringly respectable lives actually undermine anything? It seems to us that our marriage harms no one, impinges on no one else's rights and takes nothing away from any other couple, married or not.
But it's not really about protection, it's about exclusion. Why have private clubs throughout history excluded people — black people, Jews, women? They exclude them because they believe, and want to show, that those people are in some way lesser, and that their club will become sullied if they let them in.
But while it is no longer acceptable to denigrate and exclude black people, Jews or women in this way — though, of course, it still happens — it is still acceptable to denigrate and exclude lesbians and gays.
The arrival of the Marriage Amendment Bill on our statute books is a testament to nothing other than plain old bigotry and prejudice. Gay marriage is, very simply, an issue of equal rights; it is about some people having those rights and some people not.
Ironically, it was at least in part to protect our family that we sought recognition of our marriage in the Family Court. We have a child. Notwithstanding the fact that there are many single mums and unmarried couples out there raising great kids, Sarah and I want the security that marriage provides for our son.
We were not sure how legal recognition of our marriage would affect his circumstances, but we hoped it would go some way to affording him the legal protection he is currently denied.
At the very least, it would be a legal recognition of his reality — that he has two parents who have made a life commitment to him, and to each other.
Much was made of the fact that the gay community is "divided" on this issue, that not everyone wants access to marriage. I don't dispute this, though all of those people still recognise the importance of having the choice to marry or not.
That some gay people don't want to get married, however, is not an adequate justification for denying access to marriage to those people who do. I must have had dozens of conversations with heterosexual friends who — for a range of reasons — do not believe in the institution of marriage and wouldn't touch it with a barge pole, but I don't hear anyone suggesting heterosexual people shouldn't be allowed to marry because some other heterosexual people don't want to.
Gay marriage is an important social issue, one that, I believe, warrants widespread and thorough community debate. The Government has asserted loudly and repeatedly that the "majority of Australians" believe marriage is the union of a man and woman, but surveys show that Australians are fairly evenly divided on the issue of gay marriage, although most younger people are in favour of gay marriage.
This has certainly been our personal experience during the past year. So many people in both Canada and Australia, and from all sorts of backgrounds and political allegiances have said, "good on you" or, at worst, "who cares?"
This debate could have happened if the Government and the Labor Party had allowed the Senate committee of inquiry to do its job. Instead, they bowed to pressure from the Christian right, whose views are not, I believe, shared by the majority of Australians — in fact, not even by the majority of Christians!
And let's remember here, too, that although marriage and religion have historically gone hand in hand, for a long time now, and for many people, marriage has been a civil right, not a religious one. We are not asking to get married in church.
The Marriage Amendment Bill was hurried through Parliament without adequate public discussion, Parliament was extended in order to hear it, anti-terrorism legislation was initially bumped so it could go to the front of the queue, debate in the Senate was guillotined, and it was finally rushed through the Governor- General's office to be given royal assent. All so they could knock us out before we got to court last week. And all with an impending election in mind, of course.
So, yes, we are very disappointed. At a time when Canada, parts of the US, New Zealand, and big chunks of Europe are all moving to protect the rights of lesbians and gays, Australia is doing the opposite.
Sarah and I are immigrants. We choose to be here because we think it is a great place to live and raise our children, but it saddens us to think that while both our other homes — Canada and Britain (the latter recently said it would recognise the validity of overseas same-sex marriages) — can embrace us, our adopted home cannot.
Do I feel any less married now this law is in place? Of course not. When I stood in front of family and friends on that beautiful August day last year and said "I do", I said it for Sarah and me — and our son — not for anybody else. Despite its best efforts, the Australian Government cannot unmarry us.
For now, gay marriage slips off the agenda, and it will take a while for it to re-emerge. When it does, I am more than confident that with the opportunity for genuine public discussion, the issue will be decided in our favour.
Meanwhile, I content myself with the incredible support we have had from so many "ordinary Australians" who do not feel the need to exclude us, who do not feel threatened by us, and who do not feel that our marriage somehow undermines theirs.
When we returned to Canada this summer, it was interesting to see that with the course of time, and the failure of the sky to fall in, many of those people who initially objected to the legalisation of gay marriage have now come around to the idea.
The doom and gloom prophesies of the unravelling of the fabric of society have not eventuated. The institution of marriage survives and is largely unaffected by the joining of same-sex couples. On the other hand, a significant minority of the country's people feel empowered, enfranchised and more equal than they've ever felt before. I look forward to that day in Australia.
Jacqueline Tomlins and Sarah Nichols were one of the two couples whose application to the Family Court to have their same sex marriages recognised in law prompted the government's recent Marriage Amendment Bill.