Genuine marriage equality is more than overdue

Imagine seeing the words "never married" on your new husband's death certificate. As if the grief of losing your husband while honeymooning wasn't traumatic enough.

Marco Bulmer-Rizzi's husband, David, died after falling down stairs at a friend's place in Adelaide. Because South Australia doesn't recognise same-sex marriages from overseas, David's death certificate initially recorded him as "not married".

While the South Australian Premier Jay Weatherill has since vowed to remove "never married" from the certificate and introduce measures to avoid this happening again, this incident demonstrates how isolated and outdated Australian marriage laws have become.

Same sex marriage is not recognised under Australian Commonwealth law. The impact of such a narrow view of gender equality is not confined to Australia. It has global consequences in the interconnected world in which we live.

In stark contrast to Australian law, marriage equality is recognised by the laws of many comparable jurisdictions including most European countries, the United States, Argentina, Mexico, South Africa, even our cousins, New Zealand and, more importantly for Bulmer-Rizzi, Britain.

The Turnbull government has promised a plebiscite after the next election to allow Australians to decide whether same sex marriage should be permitted under the Commonwealth's Marriage Act. A plebiscite is certainly one way to test public support, though it will not necessarily lead to a change in the law.

While marriage equality has become a political issue, public debate might consider the question as a fundamental human right. To what extent is marriage equality a legal right under international law or under the common law?

Under article 26 of the  International Covenant on Civil and Political Rights  all people "are equal before the law and entitled without any discrimination to the equal protection of the law". The Australian Human Rights Commission considers that this principle of equality means that civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation or gender identity.

It remains true that international human rights law does not mandate recognition of marriage between same sex partners. Rather, the principle of equality under the ICCPR is considered by the UN Human Rights Committee to neither prevent recognition of same sex marriage nor to impose a positive obligation on states to do so.

It is a truism that our rights will atrophy if they are frozen in time. In practice, the law is evolving to accept marriage equality. The principle of equality has underpinned the reasoning of many national legislatures and courts that have supported same sex marriage laws.  Judge Sachs of the South African Supreme Court, for example, argued that: "Given the centrality attributed to marriage and its consequences in our culture, to deny same-sex couples a choice in this respect is to negate their right to self-definition in a most profound way."

Similar ideas supported the majority decision of the US Supreme Court in Obergefell v Ohio Department of Health in June last year.  Four of the seven judges agreed that the right of same sex couples to marry is guaranteed by two clauses of the 14th Amendment; that no person is to be deprived of  "life, liberty or property without due process of law", and that they should be afforded equal protection of the law.

The leading judgment of Justice Kennedy sets out the reasons why the right to liberty includes marriage equality. His judgment deserves close attention because it sets out the principles that underpin the right to marriage equality, principles that can inform public debate in Australia.

Justice Kennedy observes that the history of the institution of marriage is one of continuity and change, evolving from an arrangement by parents for political, religious and property reasons to a voluntary contract. As women gained legal, political and property rights, they were no longer considered to be a single entity under the control of their husbands. Over the past few years, the courts have invalidated bans on interracial unions, and the marriage of fathers who were behind in their child support payments. The courts have also upheld the right of prisoners to marry and the right of married couples to use contraception and has invalidated laws that criminalised same sex intimacy

In light of the dynamic evolution of the law, the US Supreme Court concluded that marriage equality is a fundamental liberty protected by the Constitution. Justice Kennedy relied upon four principles; individual autonomy, the "nobility of purpose" of marriage, safeguards for children and families of same sex couples, and marriage as a keystone of our social order. He also stressed the harm that arises from the exclusion of same sex couples from the benefit of civil marriage. The risk of harm, Justice Kennedy argued, means that an individual can appeal to the courts for protection without waiting for Parliament to act.

Of immediate relevance to Australia's proposed plebiscite, is the Supreme Court's view that fundamental rights may not be submitted to a vote. Rather, "they depend on the outcome of no elections". In principle, why should the right to equality in marriage depend upon a plebiscite?

The contrast between the laws of the United States and Australia is stark and troubling. Australia has the dubious distinction of being unique among comparable nations in having few constitutional protections for fundamental freedoms and no bill of rights. The ability of the United States Supreme Court to reach a view on marriage equality by interpreting the right to liberty and equality is not available to the Australian courts.  For the future, marriage equality depends on Parliament, and it seems, Parliament now depends on a popular vote.

As the US Supreme Court has recognised, moving same sex couples from "outlaw to outcast does not achieve the full promise of liberty". It is time for us to move to genuine equality in marriage for all Australians.

professor Gillian Triggs is president of the Australian Human Rights Commission.