Equal to what?

Marriage equality is the slogan under which same-sex marriage is being marketed in Australia. But this really only advertises equality for one kind of marriage which is new-fangled and untested. What about other kinds of marriage which have hundreds, even thousands, of years of tradition behind them? Isn’t it discriminatory to exclude them from state recognition?

These are some of the intriguing questions raised by Michael Quinlan in a recent article in the University of Notre Dame Australia Law Review.

Quinlan points out that same-sex marriage is a Johnny-come-lately in the marriage stakes. Aboriginal marriage and Islamic marriage have well-established forms and practices. It seems odd to withhold recognition from ancient customs while privileging a relationship which was emerged about five minutes ago and benefits only a tiny sliver of Australian society.

For different reasons, statistics about the number of gays and lesbians, Aboriginals and Muslims are rubbery. However, in 2011, there were may have been 671,000 gays and lesbians, 550,000 people of Aboriginal and/or Torres Strait Islander origin, and 476,000 Muslims. So, taken together, Aboriginals and Muslims far outnumber the LGBT community. But their traditional marriage practices are ignored – and not just ignored but hidden and proscribed

Customary Aboriginal marriage is quite foreign, even abhorrent, to modern Australians. But it was the norm for some 40,000 years and continues to have “a real controlling force in the lives of many Aborigines”. It includes practices like infant betrothal, polygamy, and marriage for girls at around the age of puberty. Quinlan notes:

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