塔斯马尼亚实现同性婚姻立法合情合理

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http://www.smh.com.au/opinion/po ... 20120806-23oos.html

Tasmania is the logical 'first mover' on marriage equality

August 6, 2012 - 9:35AM

Tasmanian Premier Lara Giddings has announced that Tasmania will pass new laws allowing same-sex couples to marry.
塔斯马尼亚州长日前宣布同性婚姻即将在本州通过立法。


For some people it will seem strange that Tasmania could be the first place in Australia to allow same-sex marriages. Tassie has a reputation for homophobia that comes from being the last Australian state to decriminalise same-sex relationships. Besides, isn't marriage a federal issue?
很多人会感到很奇怪，为什么塔斯马尼亚竟然会是第一个实现同性婚姻立法的国家呢？塔斯马尼亚，这个曾经恐同，饭桶，澳洲最后一个对同性恋宣布非犯罪化的州。

Even if Tasmania's marriage equality law is struck down by the High Court, Tasmania and marriage equality still win.
即便是塔斯马尼亚的通过的同性婚姻的州法律最终被联邦最高法院以和（2004年通过的被修改成只承认一男一女的婚姻宪法）所否决，这也是塔斯马尼亚和平等婚姻权的胜利！

Since homosexuality was decriminalised in 1997, Tasmania's progress on the recognition of same-sex relationships has outstripped the other states.
塔斯马尼亚是1997年实现对同性恋进行非犯罪化的。之后塔斯马尼亚在同性婚姻进程上的进展是瞩目可待的。

We were the first state or territory to enact a scheme for formally recognising same-sex relationships, the second to allow same-sex couples official ceremonies and the first to recognise overseas same-sex marriages.
塔斯马尼亚曾经是第一个正式承认同性伴侣关系的州，第二个为同性伴侣举行正式仪式的州，还是第一个承认海外同性婚姻关系的州。

Tasmanian Labor was the first to formally endorse the principle of marriage equality and the Tasmanian Parliament, the first to do the same.
塔斯马尼亚工党和议会是澳洲最先正式拥护和支持同性婚姻提案的。

Some might say we have made this rapid evolution towards equality despite our history, but I think it is because if it.
有人会说，尽管塔斯马尼亚有着这歧视同性恋的历史，塔斯马尼亚还是在同性婚姻进程上取得这么快速的进展，但是我说，恰恰是他的历史，塔斯马尼亚才可以去的这么快速的成绩。

The divisive and drawn-out decriminalisation debate (not to mention the post-convict "sodomy-shame" that haunted us for a over century), has heightened our awareness of the damage caused by prejudice and discrimination.
恰恰是塔斯马尼亚过去对同性恋的歧视的历史，让塔斯马尼亚人意识到偏见和其实的危害。

Whatever the reason for Tasmania's rapid progress, that progress makes marriage equality the next logical step for the Apple Isle, and our island the most logical place for marriage equality to begin in Australia.
不管是什么原因导致塔斯马尼亚有今天的成就，塔斯马尼亚都将是澳洲第一个实现同性婚姻最合情合理的选择。

But does a state like Tasmania have the power to take such an initiative?
然而塔斯马尼亚最为一个州有这个能力还开创这个历史么？

It is a common misapprehension that because the Marriage Act is a federal law, only the federal government can make laws for marriage.
一个普遍的误导是，因为婚姻是一个联邦法案，所以婚姻法必须由联邦来修改。

In fact, as constitutional experts like Professor George Williams have pointed out, the federal constitutional marriage power is shared by the Commonwealth and state governments.
事实上，法律专家联邦法是由国家和州法律所组成的。

If there is a type of marriage not covered by federal law, the power to make laws for that type of marriage falls to the states.
如果在婚姻法上联邦法不全面，州政府就可以制定补充法案。

This is why heterosexual marriages were performed under state laws until the federal Marriage Act was enacted in 1961.
这也是为什么异性恋婚姻曾经一度是州法案，直到1961年异性恋婚姻才成为联邦法。

It is also why, in the absence of federal laws about same-sex marriage, the states can now enact such laws.
也是为什么，因为联邦法案没有规定同性婚姻的情况下，州可以自己制定补充法案。

Ironically, the person who can take most credit for this is John Howard.
具有讽刺意味的是，之所以可以这么做倒要感谢霍德华。

When he amended the federal Marriage Act in 2004 to make it crystal clear that federal law only concerns itself with heterosexual unions, he also inadvertently clarified that the states have free rein to marry same-sex couples.
当霍德华政府在2004年，曾经明确提出了联邦法案只限于异性恋婚姻，他还说州政府可以自己定制适用于本州的同性婚姻法。

It shouldn't be a surprise that the states can and should lead on this issue.
由此，州政府可以自行起草法案。

The recognition of same-sex de facto relationships and same-sex parenting occurred state-by-state before it migrated to the federal level in 2008.
对于de facto（同性伴侣关系）和同性伴侣抚养权这些法案的产生都是由州政府先立法以后，最终在2008年成为联邦法案的。

In every other federal nation where marriage equality has moved forward, including Canada, the US, Argentina, Mexico and Brazil, it happened first at a state or provincial level. Even in a unitary nation like the UK it is Scotland that is taking the lead.
和其他联邦制国家，比如加拿大，美国，阿根廷，墨西哥，巴西，法律的定制都是自上而下的，即便是英国。

Seen this way, it would be remarkable and anomalous if marriage equality didn't begin at a state level in Australia.
由此可见，如果澳洲出现了州政府对婚姻立法，而不是联邦先立法，会是很异常的。（而澳洲恰恰有这样做的先例）

Of course, there are constitutional experts who disagree, arguing that the Howard government intended to stop the states as well as the Commonwealth recognising same-sex marriages (even though Howard never said this, and other proponents of the 2004 amendment admit it was an omission).

But this shouldn't stop Tasmania acting.
塔斯马尼亚还是有自己先定制州法律的权利。

The federal and state governments often enact laws that raise constitutional questions - Howard's WorkChoices is an excellent example.

Indeed, Tasmania should relish the chance to defend its same-sex marriage law in the High Court (should anyone be willing and able to challenge those laws, which is by no means certain).

For most of my adult life, Tasmania has been on the wrong side of history in the High Court, defending dams that were never built and anti-gay laws that were later repealed.

Should Tassie become the High Court champion of what has been dubbed "the civil rights battle of our time", it will reinforce the message about how much the island has transformed. Even if Tasmania's marriage equality law is struck down by the High Court, Tasmania and marriage equality still win.

In the time it takes for the court to hear the case, thousands of same-sex couples from all over Australia will be married in Tasmania. They will have spent an estimated $100 million on their weddings, giving the state economy a much-needed boost.
当联邦最高法院试图解决联邦法和州法律之间的冲突的时刻，成千上万的同性伴侣将会去塔斯马尼亚结婚，这可以为塔斯马尼亚带来估计100M的收益，这肯定会有助于州财政。

They will have returned home and begun demanding the recognition of their solemn legal vows by their own state government.
这些结婚的同性伴侣举行婚礼以后肯定会回到各自所在州，去要求所在州承认他们的同性婚姻关系。

Perhaps most important of all, people will not start marrying their pets, heterosexuals will not all suddenly divorce, churches will not be "thrown to the lawyers", and the sky will stay just where it is.

As much as it will seal Tasmania's maturation as an inclusive society, state marriage equality will break the seal on the national debate.

Rodney Croome has been at the forefront of the struggle for gay equality in Tasmania and is campaign director of Australian Marriage Equality. In 2003 he was a Member of the Order of Australia for his gay right advocacy.



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