By Senthorun Raj, NSW Branch President of Amnesty International Australia

"I've always been adamant that gay and lesbian Americans should be treated fairly and equally."

Barack Obama, 9 May 2012

After "evolving" on the issue for a couple of years, US President, Barack Obama, courageously articulated that marriage equality matters as recognition of basic human rights.

President Obama’s comments add to a growing chorus of state leaders that support marriage equality, such as recently elected Socialist French President, Francois Hollande, and Conservative UK Prime Minister, David Cameron.

With increasing support shifting across the broad international political spectrum, the question remains: why do our political leaders continue to oppose equality for all Australian citizens?

In his impassioned interview with America's ABC, President Obama identified that marriage is not a religious sacrament provided for by the government.

Here in Australia, we only need to look to the connotation of the word "marriage" under section 51(xxi) of the Australian constitution. Irrespective of whether the term "marriage" extends to the inclusion of same-sex couples, when read in light of section 116 of the constitution that enables a separation of church and state, at least one thing is clear: legislators cannot purport to privilege a particular religious meaning when it comes to marriage.

"Same-sex couples that are denied the opportunity to marry have to prove the existence of their relationship."

In practice, civil marriages performed by the state are a secular option for couples wishing to formalise their relationship. The Australian Bureau of Statistics notes that in 2009, 67 per cent of all marriages were solemnised by a civil celebrant.

For ministers of religion, where marriage occupies a specific scriptural significance, section 47 of the Marriage Act 1961 provides broad protection for them to perform marriages according to their faith. Quite simply, the answer is no. The Marriage Act 1961 does not mandate procreation nor does it regulate parent/child relationships. Federally, such regulation is sourced in the Family Law Act 1975, which since 2008 has recognised same-sex couples and families.

Major state and territory legislative reforms have complemented these Federal changes: same-sex families have achieved recognition in areas of adoption, foster care, assisted reproductive technology and surrogacy.

In the recent Californian case overturning the ban on same-sex marriage, or Re Proposition 8 (2010), justice Vaughn Walker held that prohibiting same-sex marriage offended the equal protection guarantees of the US Constitution. Moreover, he opined it was disingenuous for opponents of marriage equality to deny an institution to children raised by same-sex couples that they claim afforded social and symbolic legitimacy to children raised in heterosexual families.

Here in Australia, community support for marriage equality is considerably stronger than the US, fluctuating around 62 percent.

Even though de facto recognition ensures that both same-sex and heterosexual couples have the same rights, entitlements and responsibilities under federal law, there are still important procedural differences that privilege those who are married.

Same-sex couples that are denied the opportunity to marry have to prove the existence of their relationship. This can be particularly onerous in situations where the next of kin status is contested, such as in situations of intestacy or medical emergencies.

Civil unions are often posited as an adequate remedy to the aforementioned lack of formal recognition. The response to this is simple: if the Government pursues hierarchical mechanisms for recognising relationships, it sends out a troubling social message that same-sex relationships are not as valuable as heterosexual ones. Segregation fosters inequality - it does not remedy it.

Discrimination has no place in our law. In 2011, Australia joined with a number of other states in the UN Human Rights Council to condemn discrimination and violence against people on the basis of their sexual orientation or gender identity.

With two concurrent inquiries and three bills before the Commonwealth Parliament to legislate for marriage equality, we can only hope that like President Obama, our MPs will be both able and allowed to exercise their "conscience" to support dignity and equality for all couples in Australia.

This article was originally published on ABC's The Drum, 10 May 2012