19
Nov
2017

Climate Change & Same Sex Agreements

Bonn Climate Change Conference

Available here is an article from the New York Times dated 18 November reporting on the Climate Change Conference held in Bonn over the past fortnight. Such conferences are scheduled to be held every year to assess progress in meeting the 2015 Paris Agreement. The article says that next year “world leaders will meet for a formal dialogue”.

Perhaps the most significant “outcome” from the conference is the acknowledgement that “the world’s nations are still failing to prevent drastic global warming in the decades ahead. ‘We need more action, more ambition, and we need it now,’ said Patricia Espinosa, the United Nations climate chief”. The two Open Graphics published in the NYT suggests that the current trajectories of carbon emissions by the EU and the US would need to be drastically lowered in order to have temperatures below 2C degrees by 2030. Graphics for China and India would show a much greater reduction required (of course such graphics are meaningless as there is no co-relationship between changes in emissions and temperatures).

It appears that no Australian minister attended the conference, although today’s Age reports that Frydenberg said that Australia would not be joining a new group of 20 countries established at the conference and entitled Powering Past Coal and promising not to build more coal power plants. The absence of an Australian minister may be due to the time being taken up on same sex marriage policy and on developing explanations on energy policy, for which a COAG meeting is due next week.

Same Sex Marriages

My Commentaries have so far steered clear of the discussion on same sex marriage mainly because it seemed that whichever way people voted did not mean a substantial change in the way people live or make decisions about their relationships. Those wanting normal unions between a man and a woman would go on having them and those not wanting them would go on living together as before  but with unions of the same sex now being able to describe themselves as “married”. However, it appears that some in the same sex group regard the change as important  and that some from both groups are concerned about possible adverse effects on freedom of speech in particular.

But I note first that both my wife and I voted “No” along with 38% of the high proportion of citizens who voted and we did so partly on the judgement that there were unlikely to  be serious adverse or beneficial effects from retaining the status quo. This vote was not made because of antagonism to homosexuals or lesbians (or other combinations): we have friends and relations with those characteristics. Rather, the No vote was based on the view that a union between a man and a woman is the most natural and wide mode of human behaviour and, as such, the word ‘marriage’ should apply only to such agreements. There was no condemnation of agreements to co-habit with the same sex but they were seen as not appropriately described as a “marriage”. Rather, a co-habitation was seen as best described by using terms such as “partnerships” or “de factos” and that the use of such terms ought not be regarded as offensive, let alone discriminatory.

Of course, now that same sex agreements can become marriages legally, the word “married” will  be usable in formal exchanges.  But will those of the same sex who are now living together automatically become married or will they have to conclude a more formal agreement as previous normal marriages did?  Presumably the Marriage Act will require some kind of formal agreement for same sexers.  Some of the same sexers will likely continue to live together and not bother to conclude any agreement as such.

Some commentators have taken the view that the 62% who voted to treat same sex agreements as marriages now establishes that there has been a desirable correction to “out of date” attitudes. This seems to be the attitude taken in an article by The Australian journalist, David Crowe (see Crowe on SSex), who even claims what he describes as the “people’s vote” as “a significant win for Turnbull. He promised to settle the marriage question by Christmas and now looks like doing so. If only it had been possible five years earlier”.

But as the proportion who voted “No”  is large, this doesn’t seem to justify an interpretation that the Nos are out of date (there are, incidentally, many issues debated in the community on which the minority is likely to describe their opponents as out of date: government policies directed at reducing carbon emissions are one such issue). Further, many of those who opposed the idea of having a plebiscite were forced to acknowledge that it worked satisfactorily from their viewpoint (see Henderson on SSex Marriage). As Henderson rightly says “It’s worth remembering the ­extent to which some supporters of same-sex marriage opposed Abbott’s proposed plebiscite and Turnbull’s postal survey until this week” (one might add that Turnbull initially opposed obtaining a view from Australian citizens but did a turn).

There was probably a range of reasons amongst those in the 62% who decided to treat same sex agreements as marriages. Many in the 62% probably  judged  that all unions should be treated “equally” in marriage legislation and that no harm would ensue: but that is not necessarily an “up to date” view. Governments legislate in ways which treat people unequally in circumstances where the view is taken that it is in the interests of society to do so.  Unequal treatment applies to  groups such as those mentally handicapped or judged as a threat to society. Certain types of unions  are  also not accepted as marriages, such as when either party is already married (bigamy, polygamy) or when  the parties are in a prohibited relationship (direct descendants or siblings) or when there is deemed to be mental incapacity or persons below the permitted marriageable age.

There will be some interest in what amendments should now made to the Marriage Act. Before 2004, there was no definition of marriage under Australian legislation and instead the common law definition was used ie  the views of judges as developed over time in England defined what a marriage would be. In 2004 an Australian definition was legislated, presumably drawing on this and saying “marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. This will now have to be amended to take account of same sex agreements, presumably by substituting “ a person” for “a man and a woman” but retaining the “voluntarily entered into for life”.  The 2004 legislation also inserted a new section saying that  certain unions are not marriages, including that “a union solemnised in a foreign country between:(a) a man and another man; or(b) a woman and another woman;must not be recognised as a marriage in Australia”. This will presumably be amended too, although there may be a question as to whether all such foreign marriages should be allowed (any foreign marriages not consistent with other sections of the Marriage Act would not be accepted in any event).

In conclusion, while a same sex union can now become a “marriage”, this is unlikely to make a substantial change to the way people live or make decisions about their relationships. True, some same sexers will be pleased to be able to conclude marriage agreements and some whose unions are not same sex will be critical of the new arrangements. But subject to protecting freedom to be critical  and freedom to continue existing marriage agreements, life should continue basically unchanged.

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