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Same sex couples and citizenship (The Australian government ONLY. Essay Example

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    Undergraduate
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Same-sex Couples and Citizenship

Are citizens rights extended to all in the nation regardless of their sexuality? Is marriage one of these rights?

Almost all nations in the world disapproved of homosexual sex but majority of those in industrialised and democratic societies are convinced that similar to people with heterosexual orientation, homosexual deserves a basic level of civil rights (Andryszewski 2008, p.11). However, it is not clear if marriage is one of these rights considering that Part 3 — Article 23 of the International Covenant on Civil and Political Rights excludes coverage of same sex couple from the right of marriage. Although ICCPR recognised the rights of each signatory country to decide on its own regarding the issue, many of them generally prohibit same-sex marriage (Wintermute & Andenaes 2001, p.734). Australia’s Howard Government for instance introduced amendments of Marriage Act 1961 in 2004 to preclude same sex marriage and its recognition if ever done outside the country (Sawer et al. 2009, p.62). In contrast, Canada allows same-sex couples marriage while New Zealand recognised same and different sex civil unions but does not allow different-sex marriage (Polikoff 2008, p.111). In 2001, same sex marriage became legal in Netherlands followed by Belgium in 2002, Spain in 2005, and now exists in United Kingdom, Germany, France, and other European countries (Siker 2007, p.12).

Australia recognised same-sex cohabiting or de facto relationship and provides similar rights enjoyed by married different-sex couples – taxation, social security, and health aged care, adopt children, and others. The Tasmania’s Relationship Act of 2003 for instance even allowed bereavement leave while Western Australia provide registered lesbian partners infertility treatment or artificial insemination (Simon & Brooks p.128). However, although the Civil Partnerships Act of 2008 duly recognised couples in Australian society regardless of sex, it still defines marriage as an act between a man and a woman (Newton 2009, p.143). In the same manner, the question whether marriage of same sex is a citizen’s right or not can be answered by the nature of marriage itself.

Interracial marriage is wide accepted because people disapproved of racial discrimination while majority of countries around the world perceived legal age as the right time to work or get married. Marriage according to Ryan & Switzer (2009) is both civil and religious institution and those who advocates same sex marriage uses both to justify their rights. However, the religious ceremony involved in marriage is rather different since it involves commitment to each other before the laws of God (p.310). Moreover, marriage in natural law is viewed as an intrinsic human good where the union of husband and wife is biological rather than an instrument of personal reality (Gerstman 2004, p.24). The move by many governments to allow same-sex civil union with equal benefits is another word for allowing “lawful sexual activity” (Rees et al., p.362) on the ground of discrimination and definitely not about marriage as a civil and religious institution. In the same manner, religion is not a rational basis for banning same-sex marriage as not all religions is against it (Gerstman 2004, p.23).

The exclusion of same-sex marriage in the international law of civil and political rights was not by chance but recognition of reality that such particular human right do not exist. There is no doubt that Article 16, 17, 23, or 26 of the International Covenant confers the right to be recognised as a person under the law but it must be interpreted with regards to Article 23 (Conte et al, 2004, p.68). Therefore, a mere refusal for same-sex marriage is not a breach of rights under ICCPR simply because the right does not exist. “Same-sex marriage is not a human right” (Larocque et al 2006, p.240) but mere political option or judgement as evidenced by Australian government’s move to protect the right of same-sex couples against sexual discrimination but deny their non-existing human right to marriage.

References:

Andrysweski T, (2008), Same Sex Marriage: Moral Wrong or Civil Right?. Twenty-First Century Books, United States

Conte A, Davidson S, & Burchill R, (2004), Defining civil and political rights: the jurisprudence of the United Nations Human Rights Committee, Ashgate Publishing, United Kingdom

Gertsman E, (2004), Same-sex marriage and the constitution, Cambridge University Press, United Kingdom

Larocque S, Chodos R, Waterhouse B, & Blair L, (2006), Gay Marriage: The Story of a Canadian social revolution, James Lorimer & Company, Canada

Newton D, (2009), Gay and Lesbian rights: A Reference Handbook, ABC-CLIO, United States

Polikoff N, 2008, Beyond Straight and Gay Marriage: Valuing all families under the law, Beacon Press, United States

Rees N, Lindsay K, & Rice Simon, (2008), Australia Anti-Discrimination Law: Text, Cases, and Materials, Federation Press, Sydney, Australia

Ryan M. & Switzer L, (2009), God in the corridors of power: Christian conservatives, the media, and politics in America, ABC-CLIO, United States

Sawer M, Abjorensen N, & Larkin P, (2009), Australia: The State of Democracy, Federation Press, Sydney, Australia

Siker J, (2007), Homosexuality and Religion: An Encyclopaedia, Greenwood Publishing, United States

Simon R. & Brooks A, (2009), Gay and Lesbian Communities the World Over, Rowman & Littlefield, United States

Wintermute R. & Andenaes M, (2001), Legal recognition of same-sex partnerships: A study of national, European and International Law, Hart Publishing, United Kingdo