SOCIAL EFFECTS OF LEGISLATION?
The amendments have effective codified an exclusively heterosexual definition of marriage and to deny recognition of foreign same sex marriages [Submission of the NSW Council for Civil Liberties and the University of NSW Council for Civil Liberties to the Senate Legal and constitutional committees inquiry into the provisions of the Marriage Legislation Amendment Bill 2004.] The real effect of refusal to acknowledge and provide protections to same sex relationships is to fail to recognise the relationships and the meanings they give to an individual's life [The Changing Concept of Family - the Significance of Recognition and Protection.] Such legislation is in effect the government punishing law-abiding members for a sexual orientation that is lawful [The Changing Concept of Family - the Significance of Recognition and Protection.]. It "devalues
marriage, in that it is something only a certain number of people in the community can have access to
and other cannot
because they were born who they are
" [Same Sex Marriage in Australia.]
Therefore, limitation of the right to marriage to heterosexual couples is discrimination on the grounds of sexual orientation. It is limited recognition to only certain family relationships - equality is clearly missing and a public acknowledgment of private affections, commitment's interdependencies and identities is denied [The Changing Concept of Family - the Significance of Recognition and Protection.].
The government asserts that such legislation is necessary so to give "effect to the government's commitment to protect the institution of marriage
[Marriage Legislation Amendment Bill] " which might otherwise be "eroded by time
." [Parliamentary Debates, 2004.]
However, it is widely believed that recognizing same sex marriage will not erode the institution of marriage, but rather strengthen it by making it more inclusive [Submission of the NSW Council for Civil Liberties and the University of NSW Council for Civil Liberties to the Senate Legal and constitutional committees inquiry into the provisions of the Marriage Legislation Amendment Bill 2004.] Inclusion of same sex couples in marriage, meanwhile, will not result in a corresponding deprivation or "erosion" to heterosexual couples, who will continue to marry and enjoy the benefits and value of marriage. To the extent that sexuality is a "fluid human characteristic" the expansion of marriage to homosexual couples could not result in "sexual reorientation." [The Changing Concept of Family - the Significance of Recognition and Protection.]
The government argues that the "traditional" nature of the marriage relationship is a man and a woman. Same sex marriages therefore are necessarily precluded from the definition of marriage. However, not all traditions should not be respected - there is not evidence why this particular tradition should be continued. Features of same sex relationships and heterosexual relationships of love, trust and commitment are integral to the success of the marital counterpart of both types of relationships [Recognition of Same Sex Marriage - Time for Change?].
Also, if "tradition" is respected by codifying marriage in "19th century Victorian English terms" [Hyde v Hyde, per Lord Penzance (1866) LR 1 P&D 130,] then the current legislation in regards to lawful, no fault divorce or criminal penalties for men who rape their wives or other forms of sexual or domestic assaults should equally be regarded as unacceptable. However, the government has failed to defend these "traditions." [Submission of the NSW Council for Civil Liberties and the University of NSW Council for Civil Liberties to the Senate Legal and constitutional committees inquiry into the provisions of the Marriage Legislation Amendment Bill 2004.]
The governments further argues that "marriage
is about children, having children
providing for the survival of the species." [Debate over Banning Homosexual Marriage Heats up In Australia.] This is also known as the Procreation argument [Recognition of Same Sex Marriage - Time for Change?]. However, if marriage was intended only to be available to a couple capable of procreation - then those who are sterile, infertile or handicapped persons cannot be regarded as married. There is no legislative defence against these persons - procreation is obviously not a major concern.
It is clear, therefore, that the proposals are not in defence of the "tradition" of marriage or its accompanying productions. The current legislation discriminates "on the basis of gender and violates the right to equal protection as it allowed marriages only between males and females." This refusal to grant a marriage licence to same sex couples is a denial to same-sex couples "access to the marital status and its concomitant rights and benefits." [Baehr v Lewin 852 P 2d, 22 (Haw 1993) at 67 Per Associate justice Steven Levinson.] This is discrimination, unjustifiable in a free and democratic society and there is apparently no rational reason to maintain marriage as an exclusively heterosexual institution [Halpern v Canada AG (2003) 65 OR (3rd) 161 (CA) [69]-[71].]
IN REGARDS TO AUSTRALIAN GOVERNMENT AND CONSTITUTIONAL POWERS:
(Please note that the following may require some background knowledge on the operation of the separation of powers and the constitution of Australia as well as the judiciary of Australia. Any questions or uncertainty, please do not hesitate to ask me for clarification. My apologies.)
The power of the Australian government to legislate marriage in the format as that provided by s5(1) of the Act will now be analyzed in the light of the various definitions of "marriage."
3.1 The Common Law Definition:
Australia employs the traditional common law definition of "marriage" provided in Hyde v Hyde and Woodmansee [(1866) LR 1 P&D 130 per Lord Penzance.] In the light of the above considerations in regards to "traditions", the question as to the validity of this common law definition now arises. The Full Court of the Family Court of Australia expressed the concern of how "
potentially highly destructive to the institution of marriage for its definition to be frozen at any point of time. (AG v Kevin and Jennifer [2003] FamCA 94.)" Taking into account these factors, it is submitted that the Hyde definition may need to be revised and possibly rejected.
(Note: the case of Kevin and Jennifer involved the right of a female-to-male transsexual's right to marry a woman. It was held that despite earlier UK authorities as to what is a natural "male" today's society accepted a case as Kevin's as a male.)
3.2 The Constitutional Definition of Marriage
Many have objected to the Australian government's recent amendment the Act, in an attempt to define "marriage", is an unconstitutional exercise of power [Submission of the NSW Council for Civil Liberties and the University of NSW Council for Civil Liberties to the Senate Legal and constitutional committees inquiry into the provisions of the Marriage Legislation Amendment Bill 2004.] The word "marriage" appears in the constitution:
s51(xxi): the parliament shall have power
to make laws
with respect to marriage.
Prima facie, therefore, the topic is within the government's power of legislation. However "marriage" is a word appearing in the constitution. The competent authority, according to the constitution (section 51 expressly provides that Parliament Powers are subject to the constitution), in defining the words of the constitution is the High Court of Australia [s76(i) provides that the High Court has the original jurisdiction in all matters arising under the Constitution or involving its interpretation.] "The nature and incidents of the legal institution which the Constitution recognises as ?'marriage' which lie within the power conferred by s51(xxi) are ascertained not by reference to laws enacted in purported pursuance of the power
" [Fisher v Fisher (1986) 161 CLR 376.]
This is a reference to the "stream and source doctrine" in Australian Communist Party v Commonwealth [(1951) 83 CLR 1], which provides that "the validity of a law
done under a law cannot be made to depend on the opinion of the law maker" (parliament) that the law is within the constitutional power upon which the law in question itself depends for its validity."
Prime Minister John Howard had admitted that the aim of the amendments had been to ensure that "the definition of marriage
should rest in the hand of the parliament
and not be subject to redefinition or change by courts." [Australia to Ban homosexual Marriages.] This action therefore, has effective breached the "stream and source" doctrine. The amendments therefore, are unconstitutional. The courts should be allowed to decide the legal and constitutional definition of "marriage."
3.3 The Religious Definition
Some of the most vocal advocates against same-sex relationships have been religious followers. However, religion should not be a relevant consideration for the regulation of civil marriages in Australia, which Parliament is charged with regulating. Even religious advocates in countries allowing same-sex marriages claim that "the Vatican should be concentrating on other issues rather than trying to regulate what people do in their bedrooms." [Dutch Ignore Vatican's Anti-Gay unions Stance.]
There is a "healthy attitude" in regards to the separation between the Church and the State of Australia - there should be a distinction drawn between the sacramental nature of marriage as recognised by the Church and the laws of marriage looked at in the social context where there should not be discrimination. [Same Sex Marriages and the Vatican.]
Attempting to define "marriage" according to the religious norm may also effectively breach s116 of the constitution, which provides that "the Commonwealth shall not make any laws for establishing any religion or imposing any religious observance
" [ Submission of the NSW Council for Civil Liberties and the University of NSW Council for Civil Liberties to the Senate Legal and constitutional committees inquiry into the provisions of the Marriage Legislation Amendment Bill 2004.]
Therefore, the amendments to the definition and regulation of same-sex marriages should be conclusively declared as unconstitutional, discriminatory and should be repealed.
(2) THE POWER OF THE AUSTRALIAN GOVERNMENT TO PASS SAME-SEX MARRIAGE LAWS
The question now arises as to whether the Australian legislature has the legal and constitutional power to pass legislation authorizing same-sex marriages or other forms of legal recognitions.
The nature and incidents of the legal institution which the Constitution recognises as "marriage" and which lie within the power conferred by s51(xxi) are ascertained
Meagher [The Times are a-changing?] submits that what the Constitution and section 51(xxi) recognises as "marriage" is a constitutionalised legal term, so that its constitutional meaning was not fixed according to the 1900 definition (the union for life of one man and one woman to the exclusion of all others) but rather: "by reference to the customs of our society, especially when they are reflected in the common law, which show the content of the power as it was conferred." [Fisher v Fisher (1986) 161 CLR 376.]
In Re Wakim [(1999) 198 CLR 511] it was suggested that "marriage" may now mean "a voluntary union for life between two people to the exclusion of others." If the above argument is successful, then the 1900 definition could evolve to accommodate new and unforeseen social circumstances at the time of federation - homosexual relationships [The Times are a-changing?].
There are also some general constitutional considerations which support this argument. The High Court has consistently argued in interpreting the constitution, "the court should
always lean to the broader interpretation unless there is something in the context of the Constitution to indicate that the narrower interpretation will best carry out its objects and purpose." [Jumbunna Coal Mine NL v Victorian Coal Miner's Association (1908) 6 CLR 309.] Per Sir Owen Dixon, "
it is a constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances." [Australian National Airways (1945) 71 CLR 29.
International perspectives for the purposes of comparison were mentioned next, of which I do not believe to be of significant importance for the present discussion, however if there are any interested members who wish to read this section, I will happily post it up.
Briefly, the following countries were mentioned, as well as their current legislations:
- Netherlands, which offer both marriage, full legal recognition of such unions as well as registered de-facto partnerships
- Belgium - registered marriages only. I do not believe other alternatives to be present, please correct me if I am wrong on this point.
(3) INTERNATIONAL LAW AND OBLIGATIONS
Another argument for the inclusion of same-sex couples in the legislation may arise from international law recognition of the unacceptability of bias against homosexuals [Same Sex Relationships - Some Australian Legal Developments, per the Hon Justice Michael Kirby AC CMG.]. There continues to be a growing body of international human rights law which clearly indicate that international equality and non-discrimination guarantees apply on the basis of sexual orientation. [Same Sex Marriages Submission, the Australian Marriages Equality Association.]
6.1 Same-Sex Relationships:
Australia is a party to the International Covenant on Civil and Political Rights, which aims to promote equality under the law and demand all individual equal entitlement to legal protection. The ICCPR states in Article 26 that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground
such as sex. This has been argued to include sexual orientation, as the judicial authority in Toonen v Australia [Communication number 488/1992.] indicated.
[Note: Toonen v Australia involved an Australian male who eventually had to take his case to the UN Human Rights Committee to argue that the laws in regards to homosexual sex in the state of Tasmania, which made such sexual relations a criminal offence was unconstitutional and against human rights and the international convention. The committee ruled in favour of him and the Tasmanian government was eventually forced to repeal the offending legislation.]
The most recent case concerning Article 26 to date is Young v Australia [Case Number 941/2000], where Australia was found by the Human Rights Commission to have violated its obligations under Article 26 of the ICCPR when the government refused the plaintiff's application for a pension because he was not regarded as a "member of a couple" with his same-sex partner under the Veterans Entitlements Act (Cth) 1986.
[I believe the case of Young has been sufficiently explained for this purpose in the above paragraph, however, I am willing to provide the URL to more information should you require more details or have a deeper interest in the matter.]
It is conceded that the Australian Government is not bound to acknowledge the decisions of the Human Rights Committee, however such attitude would "display a lack of good faith in regard to its duties under the Covenant, rendering Australia's accession to the
covenant itself virtually meaningless." [Quoted from Young v Australia.] The influence of international law upon Australia cannot be denied: "
[its] powerful influence of international standards will have an increasing impact on the development of the common law and statute law
[and] promises a gradual harmonization between international accepted principles and the municipal law
" [Address given by the Hon Michael Kirby at the XVIth World Congress of the International Association of Youth and Family Judges and Magristrates.]
My next issue of concern was in regards to the law against the recognition of foreign same sex marriages. I believe it may make things simpler if I confine the discussion only to the Australian context and inside Australia's operation of recognition to internal marriages, however, if interested readers wish for more information I am happy to provide this section.
As I said, should the above prove to be insufficient or too general a summary, I am happy to offer a copy of my whole submission, which included conclusions and recommendations for the Australian government. Send me an email and I will reply with an attached copy, on the condition that it is used only for personal and private interest purposes, or otherwise with full acknowledgement of source. It is 22 pages and 3053 word count.
