LAW & CULTURE
LAW & CULTURE
SPEAK NOW: AUSTRALIAN
PERSPECTIVES ON SAME-SEX
MARRIAGE
Victor Marsh (ed); Clouds of
Magellan; 2011; 255pp; $29.95
(paperback)
We knew that there was enough in our shared
journeying to gather us into the future …
whatever it might bring
Reverend Dorothy McRae-McMahon
Marriage equality evokes passionate debate
amongst scholars, politicians and individuals
in the community. Often public debates
are constructed in polarising terms:
conservative religious narratives that value
marriage as a procreative institution is
weighted against a human rights dialogue
that argues marriage equality is a basic civil
right. Speak Now: Australian Perspectives
on Same-Sex Marriage is an collection
of essays, edited by Victor Marsh, that
attempts a more provocative discussion
beyond the current public debate by
interrogating the different political,
personal, cultural and affective investments
that surround the issue of same-sex
marriage (or marriage equality more
appropriately). From academic essays to
personal musings, the book highlights the
disparate ways in which marriage occupies
a privileged space in our communities.
Given the volume of pieces and the
constraints of a word limit, my review
explores these issues thematically, so I
am unable to do justice or mention every
individual author.
Reading Speak Now I am forced into an
uneasy emotional space: negotiating apathy,
hope, joy and trepidation when pondering
the consequences of marriage reform.
Structured alphabetically, rather than by
theme, the collection moves the reader
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within pages of each other. As the editor,
Victor Marsh, summarises, ‘there is a wide
diversity of points here. One voice cannot
speak for everyone affected by this issue’
(p xxxii).
Beginning the trek through such diverse
opinions, Speak Now opens with Dennis
Altman’s sobering lament on the push by
sexual minorities to enter the ‘restrictive’
institution of marriage and the desire to
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(p 5). Moving this analysis through a
postcolonial feminist lens, Barbara Baird, in
a later piece, reiterates the ways marriage
has functioned randomly, and often
cruelly, to regulate bodies and moralities,
particularly in respect to Aboriginal
women in Australia (p 18). Damien Riggs
also cautions against equal marriage
claims in Australia that can unintentionally
overwrite the history of racism and
colonial dispossession, by making claims
for recognition that only privilege a
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heterosexual people (p 197).
While the academic indictment on
marriage equality is acute, the activist
voices in Speak Now overwhelmingly
embrace the idea that eligibility to marry
provides valuable social and psychological
currency. Exploring the effects of social
exclusion, Lynne Hillier and Tiffany Jones
capture the psychological anxieties of
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a space of recognition: ‘I can’t fall to
sleep, for doing so brings dreams of
things I can’t have due to laws being
put up. I really want this wedding in the
future, and with my one and only’ (p 49).
Psychologist Paul Martin examines this
further in the context of shame and social
stigmatisation, noting that exclusion from
a civil institution fosters the internalised
belief that a non-heterosexual orientation
should be ‘concealed’ from public or even
‘disowned’ altogether (p 128).
Benjamin Law and Michelle Dicinoski’s
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social consequences. In simple terms, the
prospect of equality enables spaces where
same-sex couples can hold hands or build
a lawn, without the threat of violence and
shame (pp 59 and 114). For parents, like
Evelyn Gray, marriage equality is about
speaking out for the protection of gay and
lesbian children, to highlight that the issue is
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affects families and communities (p 71).
From the activist response to a more
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and Catherine Roberts resist framing
marriage in normative terms. Instead,
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of marriage rites, ‘the beauty of not
being included in tradition is the freedom
of not being bound to it’ (p 139). For
Mohummadally and Roberts, this translated
into the ability to dress in suits, choose a
chocolate high-tea theme and perform a
Bollywood dance at their own wedding.
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opens up new pleasures and possibilities,
while also bringing together multicultural
families.
Moreover, Nathan Nettleton and Michael
Carden’s analysis on marriage sacraments
evince the ways that even religious rites are
not static. Carden notes that the modern
notion of marriage as the site of complete
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this was often the preserve of friendship,
which existed outside the matrimonial
bond of kinship (p 36). Nettleton also
reminds us that the biblical proscriptions
on homosexuality as a deviation from
‘natural law’ or ‘normative sexual biology’
has largely been the product of parochial
readings of scripture that are far from
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Returning to a legislative context, the path
to equality for same-sex couples remains
fraught with insecurity and uncertainty.
Following the push for decriminalisation
in the 1980s, Wayne Morgan points out
that same-sex couples have only recently
negotiated comprehensive de facto
recognition in federal and state laws (p
146). In a similar vein to Altman, Morgan
expresses concern about the potentially
homogenising effects marriage equality will
have on non-heterosexual relationships.
Echoing Maria Pallotta-Chiarolli, then,
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of marriage that acknowledges ‘the
existences, experiences, and expertise of
border sexualities, genders and families’
(p 171). Peter Tatchell offers the ‘civil
commitment pact’ as one such queer
possibility, allowing individuals to negotiate
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other’, regardless of the sexual or romantic
dimension of their relationship (p 225).
What is clear is that marriage equality
alone will not deliver comprehensive rights,
recognition and entitlements for all gay,
lesbian, bisexual, transgender and intersex
people. Crusader Hillis reminds us that the
AltLJ Vol 37:2 2012 — 141
LAW & CULTURE
nightclub districts during peak times and
policing of public spaces used by people
experiencing homelessness with nowhere
else to go in off-peak times, noting
‘[t]he tacit assumption seems to be that
both groups pose a identical threat to
community safety’ (p 73).
This insight also serves Walsh well when
digesting jurisprudence. For example, she
considers the South Australian case of
Begg v Dare5 which establishes a range
of arguably arbitrary considerations in
deciding whether the offence of begging
has been established. In that case, the
court held that begging is unlikely to exist in
circumstances of emergency or commonly
shared experience. Essentially, people
are not begging if they ask for help after
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that people who ask strangers for money
or assistance and are not in a situation of
‘temporary emergency’ are likely to be
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Walsh comments,
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of destitution and in need of support is
something that is not regarded as a genuine
emergency or a situation creating a ‘social
obligation to be of assistance.’ (p 79)
There are a number of observations in
Homelessness and the Law which give
cause for concern. Walsh notes research
which demonstrates the perhaps obvious
correlation between housing and mental
health and observes that people with
impaired capacity are overrepresented
amongst homeless populations. She
notes the fact that people experiencing
homelessness are amongst the most
criminalised of all population groups
in Australia. Further, in considering the
ways in which social security systems
cause problems for this group, she notes
the likelihood that people experiencing
homelessness are particularly vulnerable to
child protection interventions.
This damning assessment of the regulatory
and policy framework surrounding
homelessness highlights numerous
opportunities for reform. One such
opportunity is to encourage reform
through empowering people to rely on
their human rights. On this issue, Walsh
144 — AltLJ Vol 37:2 2012
continues a theme that threads through the
book: the limited ability of people who are
homeless to challenge their circumstances
in court. She notes the lack of case
law involving claims by people who are
homeless and the limited involvement of
higher courts considering issues of poverty,
homelessness and social exclusion. Her
consideration of the wins achieved in other
jurisdictions shows the ability of human
rights to improve outcomes and highlights
the scope for improvement in Australia.
Another opportunity for reform is the
need to strengthen tenant rights. It is
perhaps obvious that a connection exists
between eviction and homelessness.
Numerous people who require emergency
housing assistance report that they have
been evicted from private rental. Further,
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report that they have been housed in
public or community housing prior to
eviction. In Victoria, people can be evicted
for ‘no reason’. Further, in deciding
whether to evict, Tribunal members at the
Victorian Civil and Administrative Tribunal
have extremely limited ability to consider
the circumstances of individual tenants in
decision-making processes. These issues
must all be addressed in order to create
an emphasis on sustaining tenancies and
preventing homelessness.
Walsh also demonstrates that one of
the gaping holes in our legal response
to homelessness is discrimination law.
In Australia, it is legal to discriminate
against someone on the grounds that
they are homeless. Further, it is also legal
to discriminate against someone on the
associated grounds of being in receipt of
social security or drug dependency. Walsh
cites a range of research and examples to
support her contention that homelessness
does translate into differential treatment in
employment, access to housing, voting, law
enforcement and public space offences.
What is the effect of discrimination? To
answer this question it is worth repeating
remarks quoted in the book of one person
on the receiving end of discrimination:
‘You feel hard done by, like you haven’t
had a chance to show the other person
who you are before you’re already judged.
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to go out and do what you need to do’ (p
171). It feels intuitively correct when Walsh
asserts that discrimination can work to
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condition’ (p 171) and make escaping
homelessness seem impossible. It can also
strip people of access to services needed to
improve their circumstances. Discrimination
must be addressed if we are to include
disadvantaged people in our society and
offer them an escape from homelessness.
The idea that the law applies to all without
distinction is a concept that causes problems
for the resolution of homelessness.
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a range of laws, jurisdictions and legal
processes which impact and penalise
the individual circumstances of people
experiencing extreme hardship if we are
to prevent and resolve homelessness.
My copy of Homelessness and the Law is
already dog-eared and underlined and has
been handed around between numerous
lawyers and workers. Aside from being an
essential resource for people interested
in homelessness, it is full of observations
and insights about the engagement of
disadvantaged groups with the justice
system and makes for a highly engaging read.
CHRIS POVEY is Manager/Principal
Lawyer at the PILCH Homeless Persons’
Legal Clinic.
REFERENCES
1. Chris Chamberlain and David MacKenzie, Australian
Bureau of Statistics, Australian Census Analytic Program:
Counting the Homeless (2006) (www.abs.gov.au); Chris
Chamberlain and David MacKenzie, Australian Institute of
Health and Welfare, Counting the Homeless 2006: Victoria
(2006).
2. Minister Wendy Lovell, Victoria’s Public Housing Waiting
List Falls (Media release, 3 February 2012).
3. See Victorian Auditor-General, Access to Public Housing
(March 2012).
4. Department of Human Services, Victorian Homelessness
Action Plan 2011–2015 (2011) 2.
5. (1986) 40 SASR 375.
FILM CLASSIFICATION
AND CENSORSHIP
Happy endings are not guaranteed
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