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From 12 September, the Australian Bureau of Statistics will be mailing out the Australian Marriage Law survey – a postal poll commissioned by the federal government to gauge levels of support amongst Australians regarding a change to the Marriage Act. The survey is not compulsory, and is not a formal vote to change law. The question will read “Should the law be changed to allow same-sex couples to marry?” and the options to respond will be a simple Yes or No.
After its introduction in 1961, the Marriage Act been changed twice. Initially, the legal marrying age was 16 for females and 18 for males. This was amended in 1991 to equalise the Act, making the legal marrying age 18 for all people.
Prior to 2004, there was no specification in the Marriage Act regarding the gender of those seeking to wed. Under the Howard government, the Act was amended without consultation of the electorate to specifically prohibit same-sex couples to be recognised as married in Australia. Since then, the matter of whether the law should be reverted to its initial state has been hotly debated.
Opposition to changes
The issue has been as divisive as it has been prolonged, despite routine polling showing that the majority of Australians now support the change. Core opposition to marriage equality comes from socially conservative religious groups, who claim the changes to civil law will impede their religious freedoms. As evidenced by the precedent set by over 22 other nations over the last 17 years, this is simply not the case.
Religious organisations will remain free to conduct their ceremonies in line with their beliefs.
Impacts on the sub-continental community
When talking to immigrants, particularly those from the sub-continental community, about why they’ve chosen to live in Australia and what they love about it, the answer is almost always freedom. Australia permits our subcontinental community the right to practice our beliefs and embrace our culture free of persecution or discrimination.
As we enjoy the benefits of tolerance and acceptance of the greater Australian community, it would be wrong to deny other minorities the same access to live equally.
Despite many claims otherwise, same-sex and de-facto couples in Australia do not already have the same civil rights as married couples. A crucial area in which there is inequality is surrounding the death rites and benefits of partners, including being listed on the Death Certificate as next of kin.
In most sub-continental cultures, death rites are one of the most important parts of existence, and a situation where a spouse can be denied input over what happens is unthinkable. This is just one of the many ways amending this law will directly impact people.
Whilst the proportion of same-sex couples is comparatively low in sub-continental communities, it is not non-existent. When I approached a gay friend in a committed-long term relationship to contribute their views for this article, I was met with apologies, and the heartbreaking explanation that “Only a select bunch of Indians know, so that Mum doesn’t get dragged through the mud. Especially while my Nana is alive.” So, whilst we’re usually talking about the community at large, it is important to remember that we must also consider those in our communities who face discrimination, shame and, above all, fear.
Not just for themselves, but for their loved ones, about an area of their lives that we, as a community, usually celebrate with reckless abandon.
“Who loves and values weddings (and, along with it, marriage) more than our community?” asks Kharishma D’Souza, a corporate banking professional and mother who recently represented Indians on a marriage equality panel in Sydney.
Growing up in Malaysia, it wasn’t until Kharishma moved to Australia that she was able to see the possibility of true equality. “I had plenty of people in my own circles who were discriminated against, but in Australia people are quite accepting. Being different was celebrated.”
The panel, attended by representatives of the multicultural community, was positive and many of the questions were answered. When asked why Kharishma was passionate about this, she said that it was important for her to be part of the way forward for her children and the next generation. “It is our turn to do this. We all love living in Australia, and this (freedom) is why.”
The Asian Australian Alliance, a group who stand to represent the interests of Asian communities in Australia, agrees with Kharishma.
Speaking on the matter, Molina Swarup Asthana, convenor of the Asian Australian Alliance, has said, “LGBTI Asian Australians are being treated as second-class citizens as they are currently being discriminated under the law and are being excluded from the civil institution of marriage, which is a right that must be available to all Australians.” Concurring with other community view, she concluded, “To be able to marry and form a family is a basic Human Right.”
Over time, much of sub-continental culture (both in India and abroad) has been hijacked to serve personal interest, profit and patriarchy. Therefore, the personal discomfort felt by some of our community by concepts such as marriage equality are understandable.
Hesitation, fear and prejudice are due to the multigenerational conservatism entrenched in global Indian culture.
Speaking from the community itself, Kunal Mirchandani of the South Asian LGBT support group Trikone, urged those sitting on the fence to consider the ramifications of their ambivalence. “We’ve all been here before,” he says, and explains, “There was a time not long ago when Hindus couldn’t marry Muslims, or widows were forbidden from remarrying. We have changed the definition of marriage time and again, and the world didn’t end.
Every generation gets to define its own values. And this is your chance to make a difference. Be an agent of change. Challenge the status quo, and let’s make history happen.”
Religious responses to marriage equality
However, looking back at ancient India, and specifically Hinduism, pairings such as these were commonplace. This is to be expected as the Hindu philosophy, at its core, focusses on the journeys of the non-corporeal, genderless soul throughout many incarnations until moksha, or liberation. Hindu pundit Rami Sivan states, “The Australian Council of Hindu Clergy gives its unqualified support for equality of all citizens before the law and supports the right of everyone to live and love in dignity, peace and security.”
While the Judeo-Christian faiths have mixed feelings on the topic, there are many proponents of marriage equality. “It is in the spirit of Jesus that we say yes to marriage,” Reverend Dr Keith Mascord said at a Christians for Marriage Equality press conference. “It is not in spite of our faith, but because of our faith that we say yes to marriage equality.” At the time of writing, a Facebook page called “Muslims for Marriage Equality” had over 1,300 followers.
There are many cultural rites practiced by our diaspora that the greater Australian community finds confronting or uncomfortable. Whether it is the ritual shaving of a baby’s head, the painful piercing of a small child’s ears or the circumcision of male infants practiced in some communities, the fact remains that we live in a secular democracy.
The discomfort of some doesn’t make it banned for the rest, and this is no different. This is what it means to live freely, multiculturally and respectfully. To ensure that we, our families and communities are safe, embraced and respected, all we must do is act to ensure that all the other communities in Australia are safe, embraced and respected.
There are many things in this world, particularly in these rapidly-changing times, that are confronting and morally challenging. Luckily, equality is not one of them.
Gay rights in India
Section 377 of the Indian Penal Code, dating back to 1860, criminalises sexual intercourse ‘against the order of nature,’ including, but not just, homosexual sex. Consensual sexual acts such as fellatio and anal penetration may also be punishable under this law.
In 2009, the Delhi High Court had allowed a plea of gay rights activists and decriminalised gay sex among consenting adults.
On 23 February 2012, India’s Ministry of Home Affairs expressed its opposition to the decriminalisation of homosexual activity, stating that in India, homosexuality is seen as being immoral.
In 2012, the Supreme Court reversed the Delhi HC verdict.
In 2014, the Supreme Court dismissed a Central government petition seeking a review of its verdict that had declared gay sex an offence.
“While reading down Section 377, the High Court overlooked that a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender people, and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that Section ultra vires,” the Supreme Court observed.
Aneeta Menon is a business owner, writer and board member of a Hindu temple in Sydney