Andersen, Ellen Ann (), 'The gay divorcée: the case of the missing argument' , and the pursuit of relationship recognition policies in Australia and the US', Women's Studies Quarterly, 38 (1 and 2), – 'Marriage, the final frontier?. See also Normann Witzleb, 'Marriage as the “Last Frontier”? Same-Sex Relationship Recognition in Australia' () 25(2) International Journal of Law, Policy. Abstract. During the last decade, the law relating to same-sex couples has changed beyond Same-Sex Relationship Recognition in Australia.
If a same-sex couple wishes to marry they ought to be required to engage a minister of religion or civil celebrant who is willing to solemnise the marriage. They should not force a Christian or other person with conscientious objection to do so by invoking anti-discrimination laws. We submit that the protections in section 47 should be extended to civil celebrants where the marriage to be solemnised is between persons of the same sex.
Both the Leyonhjelm Bill and the Entsch Cross Party Bill amend section 39 to clarify that state and territory officers have obligations to solemnise marriages including same-sex marriages. The Leyonhjelm Bill provides that state and territory marriage registrars must not refuse to solemnise marriages that are in accordance with the Marriage Act Cth.
In the United Kingdom a registrar at Islington Borough Council and a Christian was dismissed for refusing to perform same-sex partnership ceremonies. There, the Civil Marriage Act of permits same-sex marriage and provides a clear exemption for officials of religious bodies.
The Court added, a system that would make marriage services available according to the personal religious beliefs of commissioners is highly problematic.
Two of the Bills include additional provisions affecting chaplains: The Leyonhjelm amendment has a different effect. It provides that any Defence Force chaplain who refuses to solemnise a marriage on the basis of conscience is obliged, where it is possible, to provide the couple seeking to marry an alternative chaplain who is willing to solemnise the marriage.
The Entsch Cross Party Bill explains the rationale for rejecting this option: It is not considered appropriate to amend the Sex Discrimination Act to provide an exemption for persons who do not wish to provide goods or services, or make facilities available, in connection with a marriage because the marriage does not involve a union between a man and a woman.
It is not considered appropriate to provide an exemption on this ground in connection with a marriage, when discrimination on this ground is not allowed generally. Persons who provide goods or services, or make facilities available, are currently prohibited from discriminating in connection with marriages on various grounds including race, age and disability. These prohibitions have been in place for significant periods of time. Accordingly, it is not considered appropriate to provide an exemption to allow for discrimination on the grounds of sex, sexual orientation, gender identity or intersex status in relation to marriage.
Interestingly, the Hanson-Young Bill and the Leyonhjelm Bill are framed in broader terms whereas the Shorten and Entsch Bills are more narrowly defined. The objects of this Act are: The object of this Act is to allow Australians to marry regardless of their sex, sexual orientation, gender identity or intersex status. The Entsch Cross Party Bill: The object of this Act is to allow couples to marry, and to have their marriages recognised, regardless of sex, sexual orientation, gender identity or intersex status.
Wording of ceremony Sections 45 2 and 72 2 of the Marriage Act Cth currently provide: The effect of these amendments would mean couples would have the choice of the following words: Marriage, according to law in Australia, is the union of two people or 2 people to the exclusion of all others, voluntarily entered into for life. A national plebiscite is a vote by citizens on a matter of national significance, but one which does not affect the Constitution. Importantly plebiscites are normally advisory, and do not compel a government to act on the outcome.
Normally the conduct of a national plebiscite would be established by a special Act of Parliament or by regulation. The enabling Act for the plebiscite would set out the purpose of the plebiscite and enable a vote to be conducted by the Australian Electoral Commission.
Same-sex marriage: issues for the 44th Parliament
The Act may or may not specify any actions expected of the government as a result of the plebiscite. It may also specify whether voting will be compulsory or voluntary and set out the rules for approval that is whether it is 50 percent of the vote or a greater number.
Ideally it should specify the question but as election analyst Anthony Green suggests, specifying the question to do with same-sex marriage could be controversial: Should the question ask about restricting marriage to opposite sexes, or specifiy that same-sex marriage be allowed? Should it ask a de-gendered question such as whether marriage should be between two persons? How about marriage should be restricted to its traditional meaning between a man and a woman?
Even the horrible "Do you agree to an act to amend the definition of Marriage? Plebiscites have been used by state governments from time to time, especially to deal with social issues, such as hotel trading hours or daylight saving.
While the kind of direct democracy implied by a plebiscite has its merits, there is debate as to whether it is the best way to resolve an issue. Australia is a representative democracy, and as such, a feature of parliamentary representative government is that laws and major policy proposals are determined by elected representatives through debate and deliberation in the parliament. As constitutional lawyer Professor George Williams explained in in relation to a proposed plebiscite on carbon tax: They go against the grain of a system in which we elect parliamentarians to make decisions on our behalf.
By contrast, referendums and plebiscites introduce an element of direct democracy that allows people to have a say. In effect, they are an expensive opinion poll. While plebiscites have no legal effect, they can have a major political impact. They can provide a government with a mandate to proceed with a divisive policy, and can help to resolve a polarised issue when a government is unwilling to make a call. A government lacking the courage to undertake a major reform may decide to do so when backed by the support of the people in a plebiscite.
If the electors vote yes, and the Governor General gives Royal Assent, then the Constitution is actually changed. The rules for referendums are set out in section of the Constitution. Since Federation there have been 44 proposals for constitutional change put to Australian electors at referendums. Griffiths describes this technique in the following way: More technically, when interpreting the meaning of a constitutional term, the High Court has traditionally distinguished between connotation and denotation, that is, between the actual usage relevant to a term in denotationas opposed to a definition of the term which elucidates its essential characteristics connotation.
Same-sex marriage: issues for the 44th Parliament – Parliament of Australia
Thus, as Zines concludes, "an aircraft although not within the denotation of the term 'vehicle' in was within its connotation because it is a means of conveyance even though that particular means did not exist in ". That is, the court would likely find that the connotation of the constitutional term "marriage" in was formal, monogamous and heterosexual unions. And if this interpretive technique is something more than a mere linguistic device, then it is difficult to argue that heterosexuality was not an essential or core element of "marriage" in This is described by Brock and Meagher in the following way: It involves recognising that the subject matter of the power is "marriage" as a legal institution, one that before was the subject of gradual but significant change by the statutes of the United Kingdom and the Australian colonies as the earlier analysis demonstrates.
In this regard, "marriage" is one of a number of legal terms and institutions that became constitutional provisions in Importantly, these legal terms of art were products of pre-federation common law and statute and their content — consistent with the common law tradition - was still developing and contested to varying degrees at the time of federation.
Considering this history, is it not reasonable to assume that the framers understood that the legal institution of "marriage" would likely develop further after federation and provided a constitutional mechanism to accommodate this? There can be no answer to this dilemma until a federal same-sex marriage law is tested in the High Court. My view is that a majority would lean to the latter view, thereby allowing the federal parliament to provide for same-sex marriage.
Some of these alternatives are mentioned briefly below. State marriage laws Like all section 51 powers, the marriage power in section 51 xxi of the Constitution is not an exclusive federal head of power but is held concurrently with the States.
Where a federal and a State law are in conflict, section resolves that conflict in favour of the Commonwealth law, with the State law being rendered not void but inoperative for the duration of the conflict. In fact in three States, Tasmania, New South Wales and South Australia, there have been Bills introduced that if passed would permit same-sex marriage in the respective State.
The only impediment to such laws would be if such laws were rendered in-operative by section of the Constitution due to inconsistency with federal law. A key element of the push for same-sex marriage is that the same form of marriage should be available for same-sex and heterosexual couples. Like civil unions and registers, state-based marriage laws could be seen as a second-class form of recognition to a Commonwealth law on marriage.
Referral of powers Another option would be for the States to refer their powers to legislate for marriage to the Commonwealth. As Brock and Meagher have noted, it would also complement the enactment by the Commonwealth of the Family Law Amendment De Facto Financial Matters and Other Measures Act ; legislation made possible by most States referring their power to make laws for maintenance and property division upon the breakdown of de facto relationships of opposite and same-sex couples.
Whilst the ICCPR does not contain an express right for same-sex marriage, it does have a prohibition on discrimination. Article 26 expressly prohibits discrimination, which is any distinction, exclusion, restriction or preference on any ground which has the purpose or effect of nullifying or impairing the enjoyment or respect of human rights by all on an equal footing.
The Government sought advice from the Committee as to whether sexual orientation was covered by article Catherine Branson QC, President and Human Rights Commissioner argues that this is an area where international jurisprudence is still developing and in her view she does not think it can be firmly said one way or another at the moment whether there is an international obligation to allow same-sex marriage. Two major obstacles arise in this context when it comes to same-sex marriage.
First, the most relevant international instrument, the International Covenant on Civil and Political Rights, is far from explicit in affording protection from discrimination on the basis of sexual preference. The domestic law must have a clear and proportionate relationship to the international obligation in order to be valid. The Covenant cannot be said to provide a secure footing for federal regulation of same-sex unions. As noted above this was a private members Bill, its purpose being to remove the provisions in the Marriage Act that prevent same-sex marriages and recognition in Australia of same-sex marriages entered into overseas.
The report on that Bill provides two chapters summarising the arguments for and against same-sex marriage as presented to the Committee in submissions and hearings. This Appendix provides extracts and summaries from those chapters. The reader is referred to the full report for further information. A number of witnesses to the Senate Committee Inquiry into the Bill referred to the reforms aimed at redressing the inequities, and all were in support of them.
However, witnesses in support of the Bill went on to argue that the reforms did not go far enough. There have recently been a suite of reforms that have removed discrimination against gays and lesbians in the areas of taxation, superannuation and social security—the last bastion is marriage. In accordance with international human rights law, principles of non discrimination and equality, this too must be addressed.
Civil unions and domestic partner registries are not sufficient. The Law Council of Australia observed that: Legal reform of this nature is not unique, it is the natural progression of rights development as it accords with changes in social practice.
The institute[ion] of marriage has changed over [the] year history of Australia. No longer is marriage allowed between men and a 12 year old girl. Women are no longer denied legal rights nor treated as property during a marriage transaction of business. Couples of mixed-race may now be married and recognised by the law. Marriages between people of Aboriginal heritage are no longer restricted as they were previously.
Society in Australia now recognises and accepts divorce. Australian Marriage Equality submitted that: There is no intrinsic association between marriage and the raising of children. There is no evidence that children fair worse when raised by two parents of the same-sex.
Indeed, the children raised by same-sex partners benefit from marriage equality. Therefore, there is no basis upon which to assert that children will be harmed by same-sex marriage. The first thing is that the family is and was regarded as the foundation of society. Historically the family was based on marriage, and it was for this reason that the state has furiously protected the institution of marriage. But we need to understand that, infamilies are not what they were even 20 or 30 years ago.
Families come in diverse forms. I have some statistics here from the Australian Bureau of Statistics which basically set out the different kinds of family forms. One can see that one-parent families and couple families without children are on the increase, whereas couples with children are on the decrease.
On the other hand, de facto couples—people who do not marry—have increased from less than six per cent of all couples in to nearly 15 per cent now. Our whole concept of family in is very different to what it was 20 years ago. Research from Professor Jenni Millbank in found that: Australian surveys suggest that this proportion is likely to increase in the next 5 years as many lesbians also indicate that they are planning to have children in the future.
A marriage ceremony puts the same-sex relationship into a context everyone is familiar with and has the potential to transform what the couple means to each other in the eyes of the family, friends and society in general. The repeated complaints of partners is that their status as civil union partners is not recognised or understood by key agencies—health insurers, schools or even government agencies—and certainly not in social discourse by their families, friends and neighbours.
So while civil unions might grant those partners equal entitlements as married partners in practice they are often denied those entitlements by authorities who are ignorant of what a civil union is or who are deliberately discriminatory… but many of the partners I have spoken to say that, even though they are guaranteed by that registry the same spousal rights as married couples in Tasmanian law, often that is not respected by state authorities, by health insurers, by schools or whomever it might be simply because there is not an understanding of what that means.
As noted above, Dr Gerber submitted that the Toonen case stands for the principle that discrimination includes discrimination on the grounds of sexual orientation. Equality is a fundamental principle of international law. The Commission believes that a human rights analysis based on the principle of equality supports the recognition of same sex marriage.
They pointed to the definition in Hyde v Hyde and Woodmansee and argued in favour of preserving this narrower and common law definition. The unique nature of marriage itself An important element of the evidence opposing the Bill centred on the current definition of 'marriage' as being the most appropriate. Recognising the historical context of the marriage relationship, the benefit to the State of endorsing this relationship in law and the implications of changing the legal definition, submitters who opposed the Bill pointed to the distinguishing and unique characteristics of marriage to defend against broadening the term to include other types of relationships: When a man and a woman have that relationship of intimate love it is different [from other relationships] because it has a capacity built into it that same-sex relationships simply do not have.
It is a fundamentally different kind of relationship. Marriage has always been understood—even in very ancient societies—to be between a man and a woman. Even though certain forms of sexual behaviour have been tolerated—and widespread in some cultures—it has never been seen as marriage. These submitters asserted that there must be a strong policy justification before the State should involve itself in what would otherwise be a personal or private relationship.
They argued that marriage, as currently defined, is unique among relationships in that it does have particular benefits to society that warrant its recognition in law. Submitters also pointed to the importance of the law as a symbol of what is important to and good for society: