Marriage as the 'Last Frontier'? Same-Sex Relationship Recognition in Australia

Abstract

During the last decade, the law relating to same-sex couples has changed beyond recognition in many parts of the Western world. This article provides an analysis of the current legislative approach to same-sex relationship recognition in the various Australian jurisdictions. Australian law now provides largely equal protection to all couples, regardless of marriage or gender. The article argues that, in their struggle for equal rights, same-sex couples benefited from the fact that Australia has largely decoupled protection of relationships from the status of marriage. This inclusive approach diminished the legal significance of marriage as a vehicle for achieving protection. At the same time, the federal Government entrenched marriage as a reserve of opposite-sex couples. While some Australian state and territory jurisdictions have responded with registers of de facto relationships, registration offers no equivalent to marriage because it lacks the special cultural significance, the ceremonial aspects, and the social status of marriage. The article then comments on the current political debate, which focuses on challenging the same-sex marriage ban as a denial of legal equality. In its final part, the article considers the constitutional questions raised by demands for same-sex marriage in Australia. It will also discuss possible pathways towards, as well as chart the political obstacles in the way of, marriage equality.