Sotirios Sarantakos --- "Same-sex marriage: which way to go?" [1999] AltLawJl 15; (1999) 24(2) Alternative Law Journal 79

Because marriage is a basic human right and an individual personal choice, RESOLVED, the State should not interfere with same-gender couples who choose to marry and share equally in the rights, responsibilities and commitment of civil marriage.[3]

Another effort to sensitise the community to the need for legalising same-sex marriage is the declaration of 12 February 1998 as the National Freedom to Marry Day, which was received very positively in many parts of the world.

Apart from these activities, gay activists and other interested parties encouraged and supported gay and lesbian couples to take the state to the court to challenge the prohibition of gay marriage, and urged Members of Parliament to introduce bills proposing legalisation of homosexual marriage and of informal homosexual relationships in general. Overall, the latter has been more successful in legalising homosexual relationships than the former, but neither of these methods achieved the legalisation of gay marriage. So far, all court cases relating to homosexual marriages have been unsuccessful. The only state where a gay marriage was permitted by the courts was Hawaii, but this decision had no effect on the status of gay marriage in Hawaii and the USA in general.

A similar trend is evident in the area of legislation, where no country in the world legalised gay marriage. An interesting move towards considering marriage for homosexual couples was made in the Netherlands in 1998, after the government legalised same-sex relationships in the form of partnership registration. According to unconfirmed reports,[4] on 16 July 1998 the second chamber of the parliament decided (with 81 against 56 votes) to fully open up marriage to gays and lesbians, and (with 95 against 42 votes) to allow them to adopt children. The government is reported to have agreed to prepare relevant legislation by 1 January 1999. Nevertheless, as stated above, at this stage, for all countries, and particularly Australia, access to same-sex marriage remains as distant as it was before court battles began in the early 1970s.

Although attempts to challenge the prohibition of gay marriage remained outside the boundaries of Australia, with most legal disputes having taken place in the USA, and to a lesser extent in Europe and New Zealand, the concern about homosexual marriages is strong also in this country for a number of reasons:

•	gay marriage is a global phenomenon and affects Australia as much as other countries;
•	according to research conducted by the author in this area, a significant number (about one-fifth) of gay and lesbian couples are in favour of marriage;
•	gay people working with the author in a project related to same-sex relationships reported that a small but active group of gays and lesbians are working towards legalising gay marriage; and
•	research evidence collected by the author suggests that a number of cohabiting gays and lesbians are considering a challenge to the state prohibition of marriage ‘in due time, no matter the outcome of legal reforms in this area, and no matter the expected outcome of such an action’ — as one respondent put it.

Thus, it is time for the gay movement to search for reasons for the failure to gain access to gay marriage, to re-assess its future strategies, and to reconsider the relevance and purpose of the judicial way as a means of legalising gay marriage. Briefly, did the movement fail to achieve the desired results because of the nature of homosexuality, the nature of marriage, the type of our culture, the nature of gay strategies, or all these factors? Is there a need for new strategies to be devised? Is it worth pressing for legalisation of gay marriage or should one look for alternative options for achieving the desired goals? In the discussion that follows an attempt will be made to search for some answers to these questions.

The nature of the argument

A review of the strategies of the gay movement to achieve same-sex marriage highlights a number of factors which seem to have contributed to the lack of success. One such factor is the integrity, nature and logic of the argument presented by gay activists, gay and lesbian couples interviewed by the author, and their legal advisers to demonstrate the need for legalising gay marriage. In its most popular form, this argument reads as follows: same-sex couples cannot marry; because of this, they experience several problems; this constitutes discrimination on the grounds of sexual orientation; therefore, same-sex couples must be allowed to marry. Most importantly, this is how the argument has been interpreted by judges in many courts in the US and more recently in New Zealand.

This argument is problematic in a number of ways. It wrongly assumes that prohibition of gay marriage is the cause of the problems of gay couples; it gives the impression that the main concern of gays and lesbians is rights and not marriage; and it handles the notion of discrimination in a way that does not support legalisation of gay marriage. I will address each of these points.

Weakness and misplacement of the argument

In the first place, there is no logical or factual connection between the premises and the conclusion of the argument: simply, cohabiting gays and lesbians experience problems in their relationships not because they cannot marry but rather because their relationship is not legally recognised; hence, what causes problems is not the prohibition of gay marriage, but rather the lack of legal recognition of homosexual relationships. Following this, in order for these problems to be eradicated, the government does not necessarily need to introduce gay marriage, but rather needs to legally recognise homosexual relationships. Partnership registration, application of de facto legislation in the area of same-sex relationships, and adjustment of laws to cover same-sex relationships can be as useful in solving such problems of cohabiting gays and lesbians as gay marriage. For this reason, there is no compelling reason to introduce gay marriage.

More evident was the emphasis of gays and lesbians on rights and responsibilities, to the extent that the quest for gay marriage was lost under the sounds of the battle. The general impression given by gay activists, gay and lesbian couples and their legal advisers has been that their main concern is rights and legal equality with heterosexuals, and while they may demand legal recognition of gay marriage, what they really want is equal rights. This is the way in which the argument for gay marriage was interpreted by the courts. For instance, in his concluding remarks, Justice Gault of the Court of Appeal of New Zealand, delivering his verdict in a case of three lesbian couples appealing against the decision of a court that rejected their application to marry, noted very clearly and conclusively:

the real complaint the appellants have is not that they are ineligible for the license to marry but that they are denied rights and privileges which are available to married persons. Where that is the case there may well be discrimination on the ground of marital status but that is not what we are presently concerned with.[5]

This is evident in the reasons given by gay organisations when they attempted to justify the challenge of the prohibition of gay marriage. For instance, the Action for Gay Marriage (AGM) organisation in its argument for legal recognition of homosexual ‘partnerships’ and ‘relationships’ demanded that gay and lesbian couples be given ‘full legal relationships status’;[6] the cultural, symbolic, religious, and social elements of marriage have been given little, if any, weight, in this and similar documents. AGM saw the benefits of same-sex marriage in gaining recognition as legal next-of-kin, protection under the Matrimonial Properties Act, and social acceptance — not marital status per se.[7]

In a similar manner, the co-director of the Partners Task Force for Gay and Lesbian Couples lists the following ‘compelling reasons for legal marriage’: social integration (‘marriage is a symbol of grown-up’); no-marriage is a symbol of childishness; family emergencies (referring to about 170 rights married people have — money matters, namely, costs non-married gays and lesbians incur every year; intimacy, namely, rights to visitation, medical decision-making, supervisorship, child custody, wrongful death, etc.); and immigration rights.[8] Here, marriage was seen as a means to an end and not as a goal in itself. This was evident also in Australia. Although no such challenges have happened in this country, the reasons given by gays and lesbians arguing in defence of gay marriage were associated almost exclusively with rights and responsibilities rather than with being married.

The obvious points that emerge out of this debate are that the concern of gays and lesbians is not the licence to marry but legal rights; and that such rights do not justify marriage, but — if anything — legal recognition of gay relationships. Those arguing for gay marriage have not stressed the importance of marriage as an institution; and have not explained convincingly why the only way to solve their problems is gay marriage and not, say, de facto legislation, registered partnership, or adjustment of relevant laws to include same-sex relationships, which are equally effective. These alternative forms of action promote social integration and social acceptance of gay couples, and assign them rights and obligations that are similar to those of gay marriage. Many countries have used these alternative forms of action to regulate homosexual relationships and assigned rights and responsibilities to gay and lesbian couples, who seem to be content with these legal arrangements. Registered partnerships seem to be the most popular form of recognition in most parts of the world.

The nature of discrimination

More involving and contentious is the way in which gay activists treated discrimination. In most cases, discrimination:

•	was based on grounds of sexual orientation (and not on marital status),
•	was not justified adequately,
•	was difficult to prove,
•	offered a weak point that could be easily dismissed by the courts, and
•	assumed an unsubstantiated link between marriage and discrimination by arguing that because gays and lesbians are discriminated against on the grounds of sexual orientation they must be allowed to marry!

But even proving that discrimination exists in the first place is not an easy task, as we shall see next.

Let us start from the beginning: in the first instance, for many critics, the gay activists’ argument might have established the presence of differential treatment but not of discrimination; and differential treatment does not necessarily mean discrimination. Referring to the NZ case, Justice Gault from the Court of Appeal of New Zealand noted that the argument proved that differential treatment existed but not discrimination and ‘to differentiate is not necessarily to discriminate. It is necessary to distinguish between permissible differentiation and impermissible differentiation amounting to discrimination.’ Apart from this, it was submitted that prohibiting gays and lesbians marrying does not constitute discrimination because such a restriction applies to all gays and lesbians. When homosexuals are compared to heterosexuals, it is often admitted that this constitutes differential treatment but this is thought to be lawful. Hence, no discrimination!

As Justice Gault put it:

creating by law the status of child, adult, male, female is not discrimination though there may be discrimination in the law when rights or restrictions are attached to persons having such status. So too the establishment and maintenance of the institution of marriage is not itself discriminatory.

More specifically, discrimination on the grounds of sexual orientation is as lawful as many other prohibitions of marriage, prohibitions which in principle restrict all people intending to marry, regardless of their sexual orientation. For instance, women cannot marry already married men; and men cannot marry their sister; and women cannot marry a 12-year-old person. All these prohibitions are discriminatory but lawful nonetheless; as lawful as the prohibition that same-sex couples cannot be allowed to marry. Arguing, therefore, for same-sex marriage on the basis of discrimination on the grounds of sexual orientation is neither logically convincing, nor legally acceptable. It is not convincing because the lack of rights and obligations (and the associated problems) are not caused by the inability to marry but by the lack of legal recognition. And it is not acceptable because the people of Australia have instituted laws through the government which consider discrimination on the basis of sexuality as lawful, and these laws are still valid.

Obviously, arguing that because there are laws which tolerate ‘lawful’ discrimination against gays and lesbians this discrimination must remain may be acceptable to the courts, but not necessarily to the critical law maker. Indeed, as one commentator noted, ‘one of the reasons for anti-discrimination law is to strike down discriminatory laws’, and having discriminatory laws does not make discrimination right! However, this is beside the point of our argument. Our point here is not that because laws are discriminatory we have to accept discrimination, but that, as it stands, the legal structure of this country supports this lawfulness of discrimination, and makes it binding for the courts. If the lawfulness of this discrimination is to be challenged, the courts are the wrong battle field for such a challenge. Even if the courts decided that the couples were indeed unlawfully discriminated against and permitted marriage, their decisions would have been rejected by the state anyway, as was the case in Hawaii.

Hence, the logic of the argument presented by gay activists and their legal advisers in support of gay marriage was not strong enough to convince the courts that unlawful discrimination existed; that this justified legalisation of gay marriage; and that gay marriage was the only way of dealing with the situation at hand. In the NZ case, for instance, the case for discrimination was thought to be weak and far from convincing. For instance, Justice Keith of the NZ Court of Appeal found no discrimination in not allowing homosexual couples to marry, simply because the definition of marriage limits the institution of marriage to couples of a different sex only. In a similar manner, Justice Tipping, in the same case, argued that although there was ‘prima facie discrimination’ such discrimination was lawful.

The logic of the argument and gay marriage

It can be argued that, in legal terms, it could have been easier, less involving, less controversial and probably more successful in its outcome to focus the argument for gay marriage on discrimination on the grounds of marital status rather than of sexual orientation. For instance, this argument could have been formulated as follows: same-sex couples are not allowed to marry; this constitutes discrimination on the grounds of marital status; therefore same-sex couples should be allowed to marry. Such an argument would have been logically and legally more sound, and could have been taken more seriously by the authorities.

Logical and legal faults in the argument led inevitably to its dismissal, and this to feelings of defeat and disappointment, and to bad publicity. As one of our respondents noted, the headline ‘Gays denied marriage again’, following each unsuccessful court case, presented not only another declaration of defeat, a sense of solidarity and victory in the heterosexual front, or a summary of a sad story, but also an official testimony and a reinforcement of the common belief that gays and lesbians are not suited for marriage. These verdicts strengthened also fears and doubts among gays and lesbians who were insecure about their feelings towards gay marriage as a lifestyle. A gay who has been a supporter of gay marriage for several years described the message of the latest verdict in the New Zealand case as ‘being struck by lightning’, and thought that ‘news of this kind eats up bit by bit what is left of the energy to fight the system’. A similar feeling was expressed also by heterosexuals, many of whom saw such court decisions as a victory that strengthened their conviction that gays and lesbians are not suitable for marriage.

Particularly with many critics from within the gay community rejecting the relevance, sanity, or suitability of marriage for gays and lesbians, fears and doubts about same-sex relationships had, in turn, an impact on public opinion, and on the views of judges and lawyers and of Members of Parliament. The latter ultimately formed the conviction that it is in the best interest of all concerned to set same-sex marriage aside and either dismiss it once and for all, or concentrate on legal recognition of same-sex relationships in another way.

Courts or Parliament?

Weakness and misplacement of the focus of the argument were not the only difficulties of the strategy of the gay community to achieve same-sex marriage. Incorrect focus of such action was another. Simply, addressing the prohibition of marriage at the court level was politically incorrect, and legally inappropriate. During court deliberations it became clear that the place for defining the legal status of same-sex marriage was the parliament and the people, and not the courts. It was repeatedly stated that courts have no jurisdiction to decide about the structure and the fate of marriage. For instance, Justice Tipping, delivering his judgment on the NZ case in 1996 noted:

a radical change in an institution so fundamental to our society as marriage, with all the consequential effects, should be brought about by this Court only if we can discern with clarity and by a legitimate process of statutory interpretation that this is what Parliament has intended

which, of course, was not the case. He noted further that courts and judges may interpret but do not legislate: ‘Parliament has reserved to itself the legislative functions’.

Justice Richardson from the same court supported further this position when he noted that ‘to accommodate same-sex marriage would require fresh legislation, which is the function of the Parliament’. Finally, Justice Tipping from the Court of Appeal of New Zealand stated in his concluding remarks:

the Marriage Act of 1955 stipulates that marriage may take place only between a man and a woman. If that is discrimination Parliament has expressly sanctioned it. On that basis, I would dismiss the appeal.

On the basis of this, the case of same-sex marriage appears to have been lost almost before it entered the courts — a futile exercise. This suggests that a change of strategy on this issue is more than obvious.[9]

Lack of support

A serious drawback in the movement for same-sex marriage has been the fact that the largest part of the coupled gays and lesbians, and of the gay community in general, neither took same-sex marriage seriously, nor participated actively in the gay-marriage movement. The issue of gay marriage seems to be an issue of the minority. The queer media took a similar attitude to this issue. Reports on same-sex marriage have been very scarce. Many gays and lesbians surveyed by the author recently complained that most of the tabloids in the area of Sydney and Melbourne rarely serve the needs of coupled homosexual people; instead ‘they are flooded by raw-sex news and advertisements that are mainly geared towards the single, sex-seeking male homosexual’. Be that as it may, the fact remains that stories on same-sex couples are very infrequently seen in queer newspapers, and when they appear, they mostly contain brief ‘news’ items, in most cases from overseas.

Beyond this, the number of couples who decided to challenge the prohibition of marriage has been minute. In the USA, in a period of 27 years just over 20 such cases were reported. Either gay and lesbian couples have been deterred by the conditions surrounding court proceedings, or they have realised that courts are ineffective, or have no interest in marriage. The small number of couples who took advantage of the law reforms in Northern Europe and established homosexual unions is equally puzzling and disappointing; as is the number of gays and lesbians who decided to register their relationship in San Francisco. In the two years leading up to 1995 only 1590 same-sex couples did so.[10]

In Australia, low participation rates in court challenges and formalisation of gay relationships strengthen the belief that the majority of gay and lesbian couples have no interest in marriage. As shown in the studies conducted by the author,[11] only about one-fifth of the gays and lesbians surveyed demonstrated an interest in same-sex marriage. The reasons for this negative attitude to gay marriage may be direct financial costs, fear of losing benefits or employment,[12] and uncertainty about how friends will react, loss of faith in marriage as an institution, or feelings of aversion against its patriarchal structure. There are gays and lesbians who feel that asking for rights to marriage is not different from asking the heterosexual community to approve homosexual relationships, which, of course, is not acceptable. Similarly, many gays and lesbians feel that marriage is an institution for heterosexuals and not for homosexuals; that marriage is a step to subjugation and not to liberation,[13] or that marriage oppresses and brutalises women.[14]

It is, therefore, not coincidental that the Australian Lesbian and Gay Legal Services did not recommend marriage as the form of legal recognition of same-sex relationships.[15] Instead^, in 1993, they recommended registration of domestic partnership, and in 1994, de facto legislation. In a similar vein, the Equal Opportunity Commission of Victoria, after considering the submissions made in response to a discussion paper issued in 1997,[16] produced a report in March 1998, in which it ‘stopped short of recommending that gay marriage be recognised’. Last but not least, relevant bills introduced in many countries, and in Australia (1997 and 1998) and New Zealand (1997), followed exactly the same path: no same-sex marriage![17] And yet, there are Australian gays and lesbians who believe in gay marriage (about 20%), some of whom are currently considering a challenge to the prohibition of gay marriage in the courts.

The majority of gays and lesbians seem to opt for models of interpersonal relationships which do not coincide with traditional models such as marriage and the family. Kate Weston,[18] for instance, referring to gay and lesbian relationships, calls gay families ‘Families we Choose’, stressing the element of choice that allows people of a diverse background and relationship to establish a family. Such families are not for ‘relatives’ only. In the same context Richard Mohr, speaking from within the gay community and particularly the group Partners Task Force for Gay and Lesbian Couples, projects marriage models for gays and lesbians which rest on freedom, pluralism, and personal choice.[19] These models are totally different from the heterosexual marriage model. This idiosyncrasy of traditional marriage is evident also in Europe. Rauchfleisch,[20] for instance, referring to Morgenthaler,[21] notes that the relationships which mark the traditional marriage are not a model which corresponds to the personality of gays and lesbians.

The obvious detachment from and lack of commitment to the cause of same-sex marriage identified among many gays and lesbians is shown also in a paper written by Demian, the co-director of the organisation Partners Task Force for Gay and Lesbian Couples.[22] The author notes that the gay community itself is the first impediment to marriage: gays demonstrate a high level of apathy and a lack of interest in marriage; they live underground, worrying about their ‘own closets’ and trying to protect their personal interests and safeguard their personal, social and family rights; and they show no interest in same-sex marriage. Demian notes further that gays and lesbians have a low opinion of themselves, believing they are not equal to their heterosexual counterparts, and feeling they are not worthy of equal rights. Demian informs finally that in 1993, when the Texas State Representative, Glen Maxey, proposed legal marriage, ‘his office was flooded with protests, some from members of the gay community’; and ‘when Ben and Marcial Cable-McCarthy sued California for marriage in that same year, they received the most vocal support from straight people, and the most antagonism from the gay community’.

Obviously, without strong commitment to and support for same-sex marriage on the part of the gay community, progress and success in this area cannot be achieved. One wonders — as one respondent noted — ‘whether the issue of gay marriage is an issue of the gay community or a project of the vocal few’. With a situation as weak, confusing and divisive as this, it is not surprising that the heterosexual community and the government responded to the quest for same-sex marriage the way they did.

Strong resistance

One of the most powerful forces against legal recognition of same-sex marriage is public resistance, which comes from the heterosexual community and especially from conservative circles. Even most of those who have reservations about the relevance and social significance of marriage seem to defend it as an institution, and to resent changes in its structure — especially attempts to make it accessible to gays and lesbians. In most cases, resistance to same-sex marriage came as a form of defence against those who appeared to ‘threaten culture, traditions, religion and morality’. In this sense, the battle the gay community is faced with is a rather uneven one: it is about the good and the bad, the right and the wrong, the moral and the immoral, and one that is almost impossible for gays and lesbians to win.

From a political perspective, same-sex marriage became a contentious issue: overall, political parties weighed the pros and cons of taking a stance on the issue of same-sex marriage. They had to be cautious so as not to offend the conservatives but also not to lose the political support (read votes!) of the gay community. Opting for a less ‘offensive’ alternative, such as ‘de facto relationships’ or, more so, ‘registered partnerships’ has proved to be the convenient way out for many governments. These options helped to ‘save’ marriage, to allow certain benefits to cohabiting gays and lesbians, and to keep the peace in the same-sex marriage front.

In the heterosexual community, views and opinions are often based on negative stereotypes. In several cases, it was found[23] that many heterosexuals equated homosexuality with ‘sexuality’, or even perverted sexuality (for example, promiscuity), based on hearsay, but also on reports of the queer press, which many found overly offensive. Advertisements in gay newspapers and the ‘circle of naked bums’, as someone called it, shown on TV during the Mardi Gras Parade of 1997, ‘has no parallel in any heterosexual demonstration’ and is certainly unacceptable in the context of the institution of marriage. Similarly, the average Australian cannot comprehend that ‘a man can have a husband, and a woman can have a wife’.

A very significant factor that guides the attitudes of the heterosexual community is its strong identification with the institution of marriage. Matrimony appears to be the ‘registered trademark’ of heterosexuality which homosexuals are not entitled to. Use of this trademark by homosexuals not only violates the ‘rights’ and ‘vested interests’ of heterosexuals and the integrity of heterosexuality but also downgrades the value of the institution of marriage. Speaking to heterosexuals about this matter one gets the impression that marriage is as valuable and as precious to heterosexuals as the coat of arms was and still is to certain families, and as respectable and untouchable as the flag is for a nation. No-one can insult or misuse marriage, and no-one else can use it except heterosexuals. It is argued, further, that no-one can allow homosexuals entry to what has been for millennia the domain of heterosexuals.

So unreasonable, antiquated or unrealistic as the views of many Australians on same-sex marriage may seem to be, they are a part of the ‘dominant culture’, and a view which counts in matters of social policy. Head-on collision with publicly asserted and supported views and opinions is futile. It is politically more correct to avoid such confrontations than engage in them and lose. Although giving up altogether may not be the preferred option, considering more suitable strategies is a useful compromise.

Conclusion

This discussion shows that the failure of the gay movement to achieve same-sex marriage is associated among other things with the logic of the demands for a gay marriage, the emphasis on courts rather than on the parliament as the means of achieving this goal, the lack of support from the gay community and the strong resistance on the part of the heterosexual community. There are obviously many more contributing factors, and some of these are more influential in some countries than in others, but the factors noted here seem to be the most important, and also most instrumental in shaping the fate of gay marriage in our community. The obvious result of this failure is that the options for action that remain open to cohabiting gays and lesbians have been significantly reduced. First, gay marriage is out of the question: neither the courts nor the parliament nor the majority of gays and lesbians are in favour of gay marriage. Second, judicial challenge to the prohibition of gay marriage has proved to be unpopular, slow, very involving, painful and costly, often generating a negative exposure to the media, and producing outcomes that are more than disappointing. Thus, legalisation of same-sex relationships through marriage proves — at this stage at least — to be the least promising option.

For Australia, where for about one-fifth of gay and lesbian couples marriage is an option, and where the battle for a gay marriage appears to be about to begin, this conclusion is very important. Experience from other countries shows that the likelihood of Australian gays and lesbians winning a battle for gay marriage is close to nil. With gay marriage being eliminated as an option, cohabiting gays and lesbians may have only two real alternatives available to them: these are application of de facto legislation in the area of same-sex relationships, and registration of domestic partnerships. (Adjustments of laws to include also homosexual couples has already begun and is expected to proceed in the future).

Of the two alternative models, employing de facto legislation in the area of homosexual cohabitation is the least favourable and least desirable option. Although de facto status brings many important benefits to homosexual partners, such as rights and obligations that resemble those of married people, it also has many disadvantages. In the first place, de facto status is legally established without the knowledge and consent of the partners and is, therefore, imposed on them unknowingly and unwillingly. It is practically forced on cohabiting gays and lesbians after living together for a set period of time, no matter whether they accept it as a legally binding relationship, and no matter whether they wish to take on full responsibility for their partner. Following this, every gay and lesbian in this country who has lived together ‘in the nature of marriage’ for a period of time determined by the government, is assigned de facto status. This will deprive gays and lesbians of their self-determination and personal independence, and subjugate them to rules and conditions they may not accept. Most of all, this will permit state authorities to interfere in their lives at will, and ultimately result in a forced outing of closeted gays and lesbians (who are reported to be in the majority).

So fictitious as this might appear to be, it is realistic. For instance, living together for two or three years (as the state sees fit) will generate responsibilities, which can open up the way to blackmail and exploitation, and will permit the state to take relevant action, for example, if there is a suspicion that the partners have violated state regulations related to couple’s duties. Such cases may be when a gay is unemployed and receives unemployment benefits while his partner earns a substantial income; or when a lesbian receives single mother’s benefits while living in a homosexual cohabitation for a significant period of time. The important point here is not the eventual loss of benefits but rather the fact that the government will have the right to investigate the sexual orientation of the partners and the nature of the relationship, which many gays and lesbians may wish to keep clandestine. Homosexuals working in high ranking positions may fall prey to hatred, envy or political games, and sustain considerable loss in their personal, economic and social life. This could result in forced ‘outing’ of every cohabiting homosexual in this country. Under this regime, all gay and lesbian couples would ultimately lose anonymity and invisibility in the community and the closeted ones would live in constant insecurity and fear. Obviously, for those who value privacy and secrecy, de facto status is the most threatening disaster and one that seriously jeopardises self-determination, privacy, independence, and personal choice.

The other option, the registered domestic partnerships, has the advantage that it would allow partners privacy and independence, as well as personal choice and freedom to register their relationship, to cohabit without legal registration, or to stay single, an advantage not available in de facto arrangements. A relationship would be established legally only if the couple wish and when they decide to establish it. This excludes state interference and domination over personal preferences and wishes. As well, on registration, gay and lesbian couples would be assigned rights and responsibilities which cover many of those referred to by gay activists, whose number and extent could be negotiated, anyway. The only serious disadvantage of this option is that it entails some discrimination. For instance, by leaving the registration of the relationship up to the couple, the decision to register or not will ultimately remain with the strong and powerful partner. The weaker partner who sees material or other advantages in registration will have no chance to register it, if the strong partner disagrees, and may therefore lose privileges she or he might deserve.

The way forward for the gay movement is:

•	to pursue legal recognition through the option of registration of domestic relationships;
•	to negotiate with the government the range of rights and obligations to be contained in this lifestyle; and
•	to continue with public awareness campaigns aiming to sensitise the community positively towards homosexuality and homosexual unions, and eventually to gain understanding, acceptance and support.

Changing attitudes will gradually motivate government to adjust and reform policies and practices in this area. Time will tell whether same-sex marriage will become an option worth pursuing. Currently, such a pursuit is pointless, ineffective, and certainly counterproductive.

References

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[1] See for example Eskridge, W.N., The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment, Free Press, New York, 1996; Eskridge, W.N., ‘A History of Same-sex Marriage’, (1993) 49 Virginia Law Review, pp.1419-1513; Brown, J., ‘Competitive Federalism and the Legislative Incentives to Recognise Same-sex Marriage’, (1995) 68 Southern California Law Review, pp.745-839. Damslet, O., ‘Same-Sex Marriage’, (1993) 10 NY Law School Journal of Human Rights, pp.555-93; Strasser, M., Legally Wed: Same-sex Marriage and the Constitution, Cornell University Press, 1997; Sullivan, A., Same-Sex Marriage: Pro and Con: A Reader, Vintage Books, 1997; Wilson, S., ‘The Prison “Soft Cell”’, Sunday Herald Sun, 20 July 1997, p.51; Wolfson, E., ‘Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men and the Intra-community Critique’, (1995) XXI 3 NYU Review of Law and Social Change, pp.567-615.
[2] See Wolfson, Evan, Winning and Keeping the Freedom to Marry for Same-Sex Couples (1995) published on the Internet by Partners Task Force for Gay and Lesbian Couples (http://www.buddybuddy.com/ wolfson1.html).
[3] National Freedom to Marry Coalition, National Freedom to Marry Day — February 12, (1998) published by the Coalition on the Internet by the National Freedom to Marry Coalition (http://nz.com/NZ/Queer/ OUT/News_199801/19980113f.html).
[4] See Lambda Nachrichten, (1998) ‘Heiratsachen. Niederlande: Jetzt auch Heirat’, Lambda Nachrichten. Oesterreichs Fuerende Lesben- und Schwulenzeitschrift, 3, p.47.
[5] Quilter and Pearl and Ors v Attorney-General [1997] NZCA 207; [1998] NZFLR 196.
[6] Action for Gay Marriage, The Essence of the Case, 1997, published on the Internet by the Action for Gay Marriage (http://www.base2.co.nz/ agm/essence.html).
[7] Action for Gay Marriage, Benefits of legal recognition for gay and lesbian marriages, 1997 published on the Internet by the Action for Gay Marriage (http://www.base2.co.nz/agm/benefits.html).
[8] See Demian, Most Compelling Reasons for Legal Marriage, 1997, published on the Internet by the Partners Task Force for Gay and Lesbian Couples, (http://www.buddybuddy.com/demian-1.html).
[9] See Demian, Legal Marriage: The First Impediment, 1997, published in the Internet by the Partners Task Force for Gay and Lesbian Couples (http://www.buddybuddy.com/demian-2.html).
[10] The Partners Task Force for Gay and Lesbian Couples group, in a document published in the Internet in 1995 entitled ‘Factoids on domestic partnership benefits’ (see, http://www.buddybuddy.com/d-p-fac.html).
[11] See Sarantakos, S.,’Nature of Same-sex Relationships and Legal Recognition’, 1998a, submitted for publication; also Sarantakos, S., ‘Legal Recognition of Same-sex Relationships: The Views of Gays and Lesbians’, (1998b) 23(5) Alternative Law Journal 222.
[12] This notion has been supported also by a number of overseas writers. See e.g. Posner, R., Sex and Reason, The President and Fellows of Harvard College, Cambridge, 1992; Eskridge, 1996, ref.1, above, p. 70.
[13] See, for instance, Polikoff, N.D., ‘We will Get what we Asked for: Why Legalizing Gay and Lesbian Marriage will not “Dismantle the Legal Structure of Gender in Every Marriage”’, (1993) 79 Virginia Law Review; Ettelbrick, P.L., (1992) ‘Since When Is Marriage a Path to Liberation? in S. Sherman, (ed.), Lesbian and Gay Marriage: Private Commitments, Public Ceremonies, Philadelphia: Temple UP, pp.20-26.
[14] Eskridge, Action for Gay Marriage, No one is Forcing Marriage on Anyone, 1997 published on the Internet by Action for Gay Marriage (http://www.base2.co.nz/agm/lesbianconcerns.html).
[15] See Lesbian and Gay Legal Rights Services (LGLRS), ‘The Bride Wore Pink: Legal Recognition of our Relationships’, Discussion Paper, Gay and Lesbian Rights Lobby, Sydney, 1993, 1994.
[16] See Equal Opportunity Commission Victoria, ‘Same Sex Relationships and the Law’, Discussion Paper, Equal Opportunity Commission of Victoria, Melbourne, 1997.
[17] The Significant Personal Relationships Bill introduced by Clover More to the NSW Parliament in June 1996, and the De Facto Relationships (Amendment) Bill introduced by Elizabeth Kirkby in June 1998, proposed to cover same-sex relationships do not speak of marriage. The Equal Opportunity Commission of Victoria, in a recent summary of the responses to the Discussion Paper it issued in 1997, did not recommend marriage either. Similarly, in New Zealand, the Succession Adjustment Bill prepared by the Law Commission in 1997 proposed de facto relationship legislation as the option for legal recognition of same-sex relationships, not marriage.
[18] See Weston, K., Families we Choose. Lesbians, Gays, Kinship, Columbia University Press, New York, 1991.
[19] See Mohr, R.D., What is Marriage Anyway?, 1997, published on the Internet by the Partners Task Force for Gay and Lesbian Couples (http://www.buddybuddy.com/Mohr-2.html).
[20] See Rauchfleish, U. ,Schwule, Lesben, Bisexuelle, Vandenhoeck and Ruprecht, Göttingen, 1996, p.36. Rauchfleisch, U. Alternative Familienformen. Einehen, gleichgeschlechtliche Paare, Hausmänner, Vandenhoeck and Ruprecht, Göttingen, 1997.
[21] See Morgenthaler, F., Homosexualität. Heterosexualität. Perversion, Fischer Taschenbuch Verlag, Frankfurt/M, 1987.
[22] See Demian, ‘Legal Marriage: The First Impediment’, 1997, published on the Internet by the Partners Task Force for Gay and Lesbian Couples (http://www.buddybuddy.com/demian-2.html).
[23] See Sarantakos, above, 1998a, 1998b.