No marriage equality but bonanza for dictionary publishers and lawyers
The campaign for marriage equality will be the loser as those who opposed the holding of the same-sex marriage survey (“Survey”) in the High Court feared – whilst dictionary publishers and lawyers will be clear winners – if a majority of those surveyed answer “Yes”…writes David Singer.
Current dictionaries will be discarded like old telephone books. Lawyers will be kept busy answering a list of tantalising questions requiring legal clarification.
Applicants for an Australian Tax File Number are already required to answer the following question:
“What is your gender? *
Male
Female
Indeterminate
* Required information”
As a lawyer with over 50 years’ experience in drafting legal agreements – this question’s relevance to the Survey is no laughing matter.
Lawyers spend a great deal of their time defining terms used in agreements – to ensure their meaning cannot possibly be misunderstood. Precision in drafting definitions avoids ambiguity necessitating resort to the Courts for interpretation.
Similarly dictionaries are prime sources for defining terms that will inevitably be bandied around as debate on the Survey heats up.
Changes to some current dictionary definitions – such as the following in Collins English Dictionary Second Edition 1986 – will be necessary if the “Yes” vote dominates:
- “marriage” – the state or relationship of being husband and wife, the legal union or contract made by a man and woman to live as husband and wife.
- “husband” – a woman’s partner in marriage
- “wife” – a man’s partner in marriage
- “woman” – an adult female human being
- “man” – an adult male human being as distinguished from a woman
- “indeterminate” – uncertain in extent amount or nature, not definite, inconclusive.
- “bride” – a woman who has just been or is about to be married
- “bridegroom” – a man who has just been or is about to be married
Will a union between two “indeterminates” or between one “indeterminate” with a woman or a man be included in any new definition of “marriage”?
The survey question appears to rule out “indeterminate” unions being recognized as marriages –asking only this question:
“Should the law be changed to allow same-sex couples to marry?”
“Marry” is currently defined as “to take (someone as one’s husband or wife) in marriage”
Will any amended definition of “marry” to include “same-sex couples” require further amendment to allow “indeterminates” to marry? Will another survey be required to rectify this omission?
“Marriage” – as defined in the Marriage Act – means:
“the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”
Why should polygamous marriages – the practice of having more than one husband or wife at the same time – not be included in any new legislated definition of “marriage” – if marriage equality is being sought?
Marriage equality could have been honestly and transparently pursued in this Survey – and questions of legalising polygamous marriages answered – by simply re-phrasing the Survey question in the following form:
“Should the law be changed to allow any two people to marry?”
Changing the centuries-old dictionary and current statutory definitions of “marriage” promises to be a bonanza for lawyers – but nothing like the financial benefits for publishers replacing outdated dictionaries.
$120 million spent on asking a poorly-drafted question – without seeing the legislation designed to follow the Survey – is breathtaking. Answering that question without understanding the can of worms it could possibly open is equally mind blowing.
Whoever came up with the actual question to be answered in the Survey should hang his, her or its head in shame.
This Survey will certainly not end the fight for marriage equality – only ensure its continuation
David Singer is a Sydney Lawyer and Foundation Member of the International Analysts Network
Michael Barnett:
Before we continue our discussion further – I would ask that you respond to three matters that you have continued to ignore in your last four posts:
1. Do you agree with my meaning of “touche” – a term used by you
2. You accused me of making “insensitive comments and assumptions” but refuse to say what they are.
3. You have failed to tell me what original questions of mine you answered that I have not acknowledged.
David, the entire tenor of your conversation is insensitive.
Touche means snap, voila, point made.
I don’t believe you acknowledged this statement:
>> In any successful marriage equality bill, the commonly used term “spouse” is likely to be included alongside the terms “husband” and “wife”, and the term “man and woman” is likely to be replaced with the term “two people”. None of this seems controversial from a legal perspective. <<
Michael
You are still to detail the “insesnsitive comments and assumptions” that I made that apparently offended you. Please do so.
Your latest comment is pure speculation because neither you nor anyone else knows what is to be included in the new legislation. That is what makes this Survey such a waste of time – not to mention the $120 million thrown to the wind.
Voters are being asked to sign on the dotted line without knowing or understanding what they might be signing up to.
David, you are swimming against the tide. Just overnight the NSW Jewish Board of Deputies passed a motion supporting civil marriage equality, with only one person voting against the motion. That level of support speaks volumes to just how out of touch you are.
You might like to read my latest article dealing with Board of Deputies Resolution.
http://www.jwire.com.au/board-of-deputies-provide-many-reasons-to-vote-no/
Still waiting for you to detail the “insensitive comments and assumptions” that I made.
It is insensitive and offensive to make a claim then refuse to substantiate it when challenged on many occasions.
Well this is the difinitive view of the Catholic Church by the man who would be pope…and church law remains the same only tidied up around the edges to be palatable….
http://www.buenosairesherald.com/BreakingNews/View/38707
David, it’s unclear as to whether you have actually read any of the numerous marriage equality bills proposed since at least 2012, but in none of them are any plans to extend marriage beyond two people, and no one is campaigning for this to happen.
In any successful marriage equality bill, the commonly used term “spouse” is likely to be included alongside the terms “husband” and “wife”, and the term “man and woman” is likely to be replaced with the term “two people”. None of this seems controversial from a legal perspective.
I’d be happy to assist you with any further questions David.
Michael
There are indeed no plans at present to extend marriage beyond two people. But what of the future if the current Survey is translated into legislation?
You might find the following article of interest showing what changes have occurred in Great Britain since 400 British members of parliament voted to redefine marriage in the United Kingdom.
https://www.spectator.com.au/2017/09/whats-changed-in-britain-since-same-sex-marriage/
This article should be compulsory reading for all those who participate in the Survey.
You don’t want to start building a house without first signing a contract and knowing everything you are in for from the beginning.
Speculating – as you do – on what legislative changes will be made should the Survey be successful is of little value.
The legislation should have been available for all to see before the Survey gets underway.
Same-sex unions should be legally recognised to the full extent that marriages presently are. Confusing those unions with marriage as we have known it for centuries is the result of the poor drafting of the question asked by the Survey.
Little thought appears to have been given to the question asked in the Survey.
$120 million of taxpayers money is being flushed down the drain asking a totally useless question that will please neither “Yes” nor “No” voters.
The Spectator article referred to is an absolute necessity, fortunately for those who take the time to read it here.
There’s a paywall so it’s no use me giving the link to anyone.
Hi David,
I’m surprised you’ve bought into ye olde slippery-slope bucket of red pickled herrings that the Australian Christian Lobby and associated anti-LGBTIQ hate organisations are peddling.
The Spectator article you refer to has also bought into the same set of lies and misinformation that the ACL are peddling, as you can see in this article debunking the claims around the Vishnitz Girls School:
https://aleph.org.au/2017/09/10/lyle-shelton-exposed-for-falsely-blaming-marriage-equality-for-the-failings-of-a-london-jewish-school
Your concerns seem to be premised on a negative attitude toward homosexuality. Am I correct?
Please state up-front your concerns. Are you against the normalisation of homosexuality, or are you just confused by the lies and misinformation of the ACL and their ilk?
Regards,
Michael.
Michael:
I have dealt with the Vishnitz Girls School issue in my reply to Peter Wertheim. There certainly appears to be a disconnect between the Aleph article and the Spectator and Daily Mail articles I have cited.
Readers can review the three articles and make up their own minds which contain lies and misinformation and which do not.
You state:
“Your concerns seem to be premised on a negative attitude toward homosexuality. Am I correct?
Please state up-front your concerns. Are you against the normalisation of homosexuality, or are you just confused by the lies and misinformation of the ACL and their ilk?”
I find these questions offensive and insulting.
I made my position clear in this response to you – which you have ignored:
“Same-sex unions should be legally recognised to the full extent that marriages presently are. Confusing those unions with marriage as we have known it for centuries is the result of the poor drafting of the question asked by the Survey.”
I think it would have done your cause far better if you had accepted my stated position before rushing into print and asking the questions you did.
Ad hominem attacks are always counter-productive. Dealing with the issues raised by me in my article is far more constructive.
David,
“I find these questions offensive and insulting.”
Touche.
I’m intrigued to understand how you’ve managed to turn your original article on the legal definition of a few words along with a number of insensitive comments and assumptions, into a full-blown slippery-slope attack on marriage equality.
I answered your original questions, which you have not acknowledged.
I am always disappointed when people prioritise protecting religious ideology over protecting human dignity.
Michael.
Michael
1. Does “touche” mean “I am sorry for not having read your comment carefully enough in my rush to pillory you in the manner I did”?
Definitions as I state in my article are very important. If “touche” does not have the meaning I have ascribed to it then please tell me what you take it to mean.
2. What are the “insensitive comments and assumptions” that you are referring to? Generalisation will get you nowhere. We lawyers always seek particulars of these vague and unsubstantiated claims.
3. What original questions of mine did you answer that I have not acknowledged? Again particulars please. You may find this tedious but it is necessary.
4. Marriage is not necessarily dependent on religious ideology. Civil marriages between a man and a woman are happening in increasing numbers everywhere.
5. I state once again for your edification that human dignity in same sex unions should be protected in exactly the same way as human dignity in marriages between men and women are protected. But they are different relationships. The attempt to hijack the term “marriage” to equally apply to these two sets of different relationships can only lead to the kind of conduct that has occurred in England since the English Parliament made that decision in 2014. Surely we should be prepared to learn from England’s experience and not repeat the same mistakes.
I do not want to see this following example set out in the Spectator article repeated in Australia:
” It became clear, during this year’s general election, just how militant the LGBT lobby have become, following marriage redefinition. The primary target was Tim Farron, leader of England’s third largest political party, the Liberal Democrats. High-profile journalists had heard that Farron was a practising Christian. In every single interview thereafter, they demanded to know. Did he personally believe homosexual sex to be a sin? He practically begged the commentariat, to allow him to keep his personal faith and legislative convictions separate. For decades, he pointed out, he had out vocally and legislatively supported the LGBT Lobby. Likewise, he had long backed same-sex marriage, voting for it enthusiastically. This simply was no longer enough.”
Nor would I like to see Australia land up with a court decision such as the following case:
“In a heartbreaking development and in spite of Britain’s ‘foster crisis’, aspiring foster parents who identify as religious, face interrogation. Those who are deemed unlikely to ‘celebrate’ homosexuality, have had their dreams of parenthood scuppered. This month, Britain’s High Court, ruled that a Pentecostal couple were ineligible parents. While the court recognised their successful and loving record of adoption, they decreed that above all else: ‘The equality provisions concerning sexual orientation should take precedence’.”
Is this what you really want to see happen in Australia?
Can you guarantee it won’t?
As I stated in my article:
“$120 million spent on asking a poorly-drafted question – without seeing the legislation designed to follow the Survey – is breathtaking. Answering that question without understanding the can of worms it could possibly open is equally mind blowing.”
Same-sex couples have been getting married around the world since around the year 2000. The number of married same-sex couples is not insignificant. Now over a billion people on this planet have access to same-sex marriage. You have less than a handful of miserable “examples” which you use to demonstrate the sky is falling in and the sloped are getting more slippery. Feh.
Where is your concern for the multitudes of children of abusive heterosexual parents? Why are you so concerned about homosexual people getting married. It reeks of intolerance.
Michael
I think there are a few matters that you need to reply to that you seemed to have deliberately overlooked
1. Do you agree with my meaning of “touche” – a term used by you
2. You accused me of making “insensitive comments and assumptions” but refuse to say what they are.
3. You have failed to tell me what original questions of mine you answered that I have not acknowledged.
Please respond to these three matters.
For you to call a couple denied the right to adopt a child as a “miserable example” and dismissed with a “feh” indicates your lack of humanity. You should be ashamed of yourself. You certainly are not doing your cause any good.
Here is another example of what happened in England that could happen here:
“Equalities minister Justine Greening, has insisted that churches must be made to: ‘Keep up with modern attitudes’. Likewise, the Speaker of the House of Commons, a position supposedly defined by its political neutrality, had this to say: I feel we’ll only have proper equal marriage when you can bloody well get married in a church if you want to do so, without having to fight the church for the equality that should be your right’.
You might be happy to see churches in Australia put in this position. I am not.
Once again you show that you apparently fail to read or understand my comments when you ask:
“Why are you so concerned about homosexual people getting married. It reeks of intolerance.”
I can only repeat what I have already told you that you are apparently unwilling to accept:
“I state once again for your edification that human dignity in same sex unions should be protected in exactly the same way as human dignity in marriages between men and women are protected. But they are different relationships. The attempt to hijack the term “marriage” to equally apply to these two sets of different relationships can only lead to the kind of conduct that has occurred in England since the English Parliament made that decision in 2014. Surely we should be prepared to learn from England’s experience and not repeat the same mistakes.”
“But they are different relationships. ”
No, not really. I love my husband. We look after each other. We care for each other. We spend time with each other’s families and friends. He has two adult children, one at uni, the other soon to be married. has depression and is studying an MBA. I work full-time and have a mortgage.
We want legal recognition of our relationship so when either of us is in hospital due to illness or approaching death we can make the necessary legal decisions for each other without complication.
Marriage is the way most people take care of that issue. But you want us to have “separate but equal”, which isn’t equal.
So when you say “they are different relationships” I ask you to put your rhetoric to one side and tell me why we, with me at the age of 48 and Gregory at the age of 54, should be discriminated against because you think we should be capable of biological reproduction in order to be as good as you.
Michael
Regretfully you again ignore or refuse to respond to three matters I put to you. Does this mean you have no answers?
Yes – it is biological reproduction that distinguishes marriags from same-sex unions.
That you and Gregory choose to adopt a different path in life to that presently defined by marriage is certainly your choice to make.
Your relationship should certainly have all the same legal protections as marriage. That is the equality you are certainly entitled to.
But do not try to appropriate to your relationship a term which has been used to define the relationship between a man and woman for centuries.
The survey being currently conducted would have been overwhelmingly accepted if it had asked:
“Should the law be changed to allow same-sex couples or indeterminate sex-couples to enter into a legal union?”
We are however unfortunately now stuck with answering the question put to us. That is the real pity of this $120 million splurge into continuing uncertainty – no matter what the result.
David, you want to define marriage by the ability to reproduce biologically. But that is a frail argument, borne in an argument of bigotry, because marriage is currently open to people who cannot reproduce biologically and it is open to people who choose not to reproduce biologically. On that basis those people who marry or who do not produce offspring should have their marriage licences cancelled effective immediately. Similarly for those people who stop producing children, on the argument you present.
But your argument is really very illogical, because marriage is not a prerequisite for reproduction, as evidenced by unmarried parents, or single parents. Similarly for same-sex couples who parent their biological children.
Ultimately David, marriage is not about parenting, because as a lawyer you know that there is nothing in the Marriage Act about parenting or biological reproduction. So why you insist on marriage being about parenting, in 2017, is a bewildering state of being.
David, I asked my counterpart Gillian Merron, CEO of the Board of Deputies of British Jews, if the Spectator piece reflects the experiences and perspectives of Jews in the UK. Her reply was in the negative. She added: “I do not share this interpretation which is coming from a twisted perspective.” I don’t know enough about the situation in the UK to make my own assessment, but thought I should pass on hers. I also noticed on Lateline last night that Frank Brennan, a senior Jesuit, said he would be voting ‘Yes’ to the survey even though he also believes that some additional provisions (similar to sections 14 and 15 of the Victorian Charter of Rights) should be enacted Federally to ensure that freedom of religious practice and religious education are not interfered with. See his comments at the very end of the program last night: http://www.abc.net.au/lateline/content/2016/s4732751.htm.
Peter:
Gillian Merron’s opinion appears to be at odds with this report on the Vishnitz Girls School – also referred to by Michael Barnett:
“There was a similar disconnect between the quality of education and Ofsted’s mark at Vishnitz Girls School.
The school’s first Ofsted report in July 2013 found the school ‘good’ in all areas, saying: ‘The girls make good progress in their Kodesh (Jewish/religious studies).’ It continued: ‘Teachers know the girls well so that the needs of the girls are met well and they are eager to learn.’
Three years later, in February 2016, the school was subjected to its first unannounced inspection. Ofsted found that supervision was good, but it did not have up-to-date policies on safeguarding and the buildings required maintenance work.
While the report contained no criticism of the school’s teaching standards, a line at the end of the report states: ‘The aims and ethos of the school are governed by the codes of the Torah and are based on the three tenets of Judaism: Torah, Prayer and acts of loving kindness.’
By the time of the second inspection in October 2016, Ofsted noted that while progress was being made in the areas highlighted by the February report, ‘the school’s policy to exclude from the curriculum reference to certain of the protected characteristics in the Equality Act 2010’ meant it had again failed.
By the third visit, in May, every issue in the first failed report — down to peeling paint on a wall — had been resolved. Pupils were also deemed to be ‘well-motivated, have positive attitudes to learning and are confident in thinking for themselves’.
However, it also found that: ‘Pupils are not taught explicitly about issues such as sexual orientation. This restricts spiritual, moral, social and cultural development and does not take account of differing lifestyles.
‘As a result, pupils are not able to gain a full understanding of fundamental British values. [Teachers] do not teach pupils about all the protected characteristics, particularly those relating to gender re-assignment and sexual orientation. This means that pupils have a limited understanding of the different lifestyles and partnerships that individuals may choose in present-day society.’
Through Ofsted’s rainbow-coloured lens, schools either pass or fail, and in hindsight this tiny Jewish private school, with annual fees of £5,500 and just 212 pupils, never stood a chance.
The injustice of it all has provoked fury in the Haredi community. Rabbi Abraham Pinter is scathing in his criticism of Ofsted. The rabbi, who is principal of Yesodey Hatorah Senior Girls’ School in Stamford Hill, made a Freedom of Information request to ascertain how many schools had been subjected to unannounced inspections in the latter half of 2014, when they were introduced.
Ofsted papers revealed that 13 schools were subjected to full unannounced inspections (which are only meant to be carried out in cases of ‘serious concern’), of which three were Orthodox Jewish.
Two were Roman Catholic, one Church of England and the rest standard secular secondary schools. In terms of the proportion of schools targeted, the Jewish examples were vastly more likely to be picked on, despite being routinely among the best performers.
‘There are only ten Orthodox Jewish schools in Britain, so effectively one in three were singled out for the heavy treatment,’ says Rabbi Pinter. ‘This is social engineering at work and nothing to do with safeguarding our children.’
Referring to the Vishnitz case, he condemns the ‘obsession’ with fighting ‘non-existent issues for our community’.
‘I suggest Ofsted go down to the local police station and ask them about the history of homophobic abuse around here,’ he says. ‘There is none whatsoever. We are decent, tolerant people and we do not bully anybody. So why should we be forced to teach girls about issues which have nothing to do with their lives? Our community promotes tolerance of all . . . But tolerance works both ways; Ofsted shows none to people of faith.’
http://www.dailymail.co.uk/news/article-4694610/School-faces-closure-refusing-transgender-issues.html
Can you assure the Australian Jewish Day Schools they will not find themselves in a situation similar to the Vishnitz Girl’s School?
As for Frank Brennan – what happens if the additional amendments he wants to see do not eventuate?
People are being surveyed without any knowledge of what will be legislated for following the survey. That to me is very alarming.