The commentary that has been coming from the right on marriage equality is mostly predictable, offensive homophobia. It creates the potential for harm and damage and it propels and produces fear and hatred in a similar way to the unleashing of support for racism and xenophobia that sits alongside it (and indeed, is wrapped within it). While the ‘debate’ surrounding the postal ballot is – as we have already seen – toxic and homophobic, and there is an obvious necessity for a large and resounding ‘yes’ vote, the language that is being used to argue for ‘yes’ also contains the potential for harm and violence.

The arguments being used to support a yes vote (broadly) seem to coalesce around a few different ideas: that access to marriage is a right that should be open to all; that same-sex couples are facing a unique discrimination that straight couples have not faced; that it is offensive that people should be asked to vote on this issue; and that marriage is an expression of love. These are comfortable ideas, but need to be placed within histories of marriage: an institution that has often been used to control, direct, sanction, and unfairly deny types of relationships between certain people and within certain groups.

We need to remember the history of marriage even in the midst of making the argument for equal access. Otherwise we risk becoming inadvertently ahistorical and conservative, both in argument and politically. Looking to the history of marriage and to the history of queer liberation also helps to remind us that there are many ways to conceive of what constitutes a relationship, and many ways to express love outside of marriage, even outside of ‘relationship status’. And critically, this history helps us to imagine the vast possibilities for difference in the present and in the future.

Judith Butler wrote in Undoing Gender that:

For a progressive sexual movement, even one that may want to produce marriage as an option for nonheterosexuals, the proposition that marriage should become the only way to sanction or legitimate sexuality is unacceptably conservative.

And that in ‘(t)he urgency to stake a political claim, one naturalizes the options that figure most legibly within the sexual field’. But what desires (and non-desires) are foreclosed when marriage as a norm is re-enforced?

Over the many years that the same sex marriage debate has occurred in Australia, political discussion seems to have become increasingly stifled to the extent that the ultimately conservative claim for state recognition of a marriage-like relationship has come to occupy a central place in political discourse. These discussions have led to an apparent naturalising of marriage as the desirable option, and a forgetting that marriage has always been contested and changed. When people write that heterosexuals have never had their relationships challenged or denied, they are forgetting the many historical – and present – moments at which this has happened.

For instance, historian Katherine Ellinghaus showed the ways in which relationships between white women and Indigenous men in the United States and Australia were controlled at a minute level. In Australia, the governing of Aboriginal people’s sexuality was one key technique of colonisation. Determining who could have relationships with whom, who could have children with whom, and how the laws policing sexual violence were administered, has long been a practice of governmentality in this, and other, colonised countries (as numerous others have also shown, Samia Khatun, Ann McGrath, Angela Wanhalla, Angela Davis amongst them).

It is vital to remember this in our present debates. Controls over marriage have long occurred. And they occur not just through the state, but also in our racialised preferences for whom we should date or marry, or when we are part of a religious tradition or cultural background that places an emphasis on continuity, or when we are from a community that says that people from that group are desirable partners but those from outside are not. Attraction is not natural. It is learned and governed behaviour. Marriage as an institution, in the types of relationships that it sanctions and the work that it does in connecting people to the state, to religion and to each other, is regularly in flux, but always structuring and defining. We are never outside these controls, even those of us who are straight.

Amongst the many Facebook posts that have been shared in this debate, one we’ve seen flash across our feeds says something along the lines of, ‘Friends don’t let friends vote for each other’s rights.’ Like similar statements that argue that this vote should be boycotted, it asserts that marriage is a right that naturally occurs, and hence shouldn’t be voted on. While we know that the government doesn’t require a public show of hands to change the legislation, marriage equality is a political right which must be granted by someone. It does not naturally occur.

Rights as an organising political principle emerge out of the Enlightenment. They were not birthed by some pre-existing nature nor handed down by a God. They are political principles that were developed over time and that have generated a multitude of different kinds of outcomes for people, depending on the position a person occupies (or is compelled to occupy) in society.

At this political moment in Australia, it’s pretty worrying to assert the naturalness of political rights when we’re fully aware that we are locking refugees up across the country, and on Manus Island and Nauru, when we know that Aboriginal people are incarcerated at scandalous rates, and when we know that political change is never handed over by the powerful, but is always struggled for. And, when we also know – as Jeff Sparrow has reminded us – that Penny Wong (who some are in the present moment celebrating) was part of an ALP that voted in 2004 to outlaw same sex marriage, and an ALP that voted last Thursday against a motion to close the detention centres on Manus and Nauru. Political expediency continues to reign, and human rights discourses limit the possibilities of what we can say and the claims we can make. In fact they seem to be working against the liberations that this moment demands.

Much of what we are seeing in this debate also reinforces the idea that being in a relationship is natural, inevitable and desirable. There is a fallback on the notion that coupledom is king, and that other forms of intimate relations (including an absence of them) are lesser. In this way, when the claim is made that a person’s humanity is being judged on the status of their relationships, we see a reinforcing of a sex hierarchy of relationships, and distinctions between ‘good’ and ‘bad’ relationships (as identified by Gayle Rubin in her 1984 ground-breaking essay ‘Thinking Sex’).

There is little space at present for the hope that queer could bring in trying to think outside of these classifications and more rigid ways of being.

This moment could be used to open ourselves up to different political claims to those that have come before. Those of us on the radical left could refuse the terms of debate offered up by conservative politicians, and frame the coming weeks and months as a celebration of actual possibilities: not as a moment dominated by harm, loss, and the fight for the scraps that liberalism has to offer, but as part of a broad movement for changing social relations. We could build on historical queer movements’ calls for different versions of love and relationship possibilities – ones that do not inevitably rest on intimate relationships between two people – and broaden those claims to imagine a vastly new framework for possibilities for intimacy and connection. We could focus on ensuring that the leftist campaign that sits alongside this postal statistical sampling that we’re all about to undergo isn’t focused on the harm and damage that is being perpetuated, but is used as a chance to make claims for the kinds of world that we want to live in, that we want to make.

The predominating discourses around the necessity of loving one other, of being assessed on our humanity for whether or how we love another, of linking our political claims to liberal rights, and of wanting this settler-colonial state to recognise us, are limiting. We have to collectively ensure that this argument doesn’t suck the life out of critical thinking and the possibilities of queerness.

Maggie Nelson, in her critically beautiful memoir/autotheory work The Argonauts, described Western culture as one ‘frantic for resolution’, but despite this, ‘sometimes the shit stays messy’. Judith Butler wrote that ‘a politics that incorporates a critical understanding is the only one that can maintain a claim to being self-reflective and nondogmatic.’ If we don’t maintain a critical eye in examining the ways that relationships are sanctioned, regulated and supported, and the broad implications of this (in both the past and present) we risk erasing the messiness of life and desires.

Jordy Silverstein

Jordana Silverstein is a Senior Research Fellow in the Melbourne Law School. A cultural historian of migration and of Jewishness, she’s the author of Anxious Histories: Narrating the Holocaust in Jewish Communities at the Beginning of the Twenty-First Century (2015).

Mary Tomsic

Mary Tomsic is an ARC Postdoctoral Research Associate at the University of Melbourne researching the history of visual representations of child refugees. Her book Beyond the Silver Screen: A History of Women, Filmmaking and Film Culture in Australia 1920-1990 will be published in October this year. Her teaching and research interests are in cultural history, Australian film culture and history of gender and sexualities.

Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places.

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  1. Finally!
    Thank you so much for bringing this to public attention. Marriage law is based on the idea of ‘property rights’.
    If a heterosexual couple can have the same rights as a married couple, under the defacto rules, after 6 months for what does this say about the sanctity of marriage. The ‘no’ argument falls over right here. There is nothing precious about state sanctioned marriage. It is a farse.

  2. Great article. I don’t understand why there aren’t more articles like this going about.

    I support marriage equality ONLY because I support equality. Marriage stinks. Inequality stinks worse.

    I don’t support marriage itself because I’m female. Call me an ‘old fashioned femi-nazi’, but what would I want with an institution that has historically – and currently, in much of the world – sanctioned rape, violence, enforced child-bearing and the deprivation of education, legal and economic rights? Marriage is an inherently backward institution: it’s for people who want ‘guarantees’ about unguarantee-able choices; people who want to assert the superior status of their personal relationships over others’ personal relationships; and people who want to be ‘prince/princess’ for a day and/or make a tonne of money via their wedding’s ‘wishing wells’ (apparently weddings can be ‘architected’ to make much more than they cost – soooo romantic!).

    I’m acutely aware it’s easy for me to not want something I can have, but so what? Marriage belongs to the Dark Ages, and Chick Flicks.

    And to all the hysterical hetero nutters who are so weirdly terrified by others’ sexuality – because it’s all about THEM right? – and who hide this irrational fear behind the argument that ‘kids need the stability and gender role-models provided by marriage’, get lost. No one needs ‘gender’ roles except those who like to play them. Kids need love and stability, of course, but that comes in many forms. As it is, the hetero-normative nuclear family has done an excellent job of providing kids with sexual, psychological and physical abuse in all ITS many forms. Apart from that, approximately 50% of marriages fall flat on their faces (what a surprise) – and who gets screwed over the most in these instances? The kids being used as canon fodder by parents who – even though they’re heterosexual – turn out NOT to be morally superior angels! Who’d have known?!

    Why can’t we just have ‘civil contracts’ protecting individuals in the following situations:
    1 consensual adult partnership
    2 carer of children
    3 carer of adults

  3. Marriage is a contract between two people (Yes – I know there are cultures and societies where this is not necessarily true, but for the sake of this argument I’ll stick to two.) I don’t recall the exact date, around 1750 (in Britain) I think, but before this time Marriages didn’t even need to be registered. The ‘government’ assumed power over marriages but there is big difference between having the power to do something and having the authority to do something.

    In Australia, the government’s ‘authority’ over marriage (and many other subjects) is written down in the Constitution but Australians had no say in what was written in the Constitution – strange considering that Australia claims to be a democracy. Our current Constitution was written by British politicians and bureaucrats – it is, in fact, an Act of the British parliament; a Constitution for Australia rather than an Australian Constitution.

    Another problem is that a number of politicians (and probably many who are intending to vote against marriage equality) have stated that they will not vote for marriage equality because of their religious beliefs. This is a violation of our rights (irrespective of gender or sexual orientation), they are trying to use civil law to impose their religious beliefs on the rest of the community – a violation of Article 18 of the Universal Declaration of Human Rights.

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