8 September 2015
PDF version [542 KB]
Mary Anne Neilsen
Law and Bills Digest Section
Same-sex marriage has been on the political agenda in
Australia for several years, as part of the broader debate about the legal
recognition of same-sex relationships. While there has been a shift in
community and political opinion, the issue of same-sex marriage remains complex
and controversial. It has raised human rights and constitutional law issues, as
well as a raft of social, religious, moral and political questions.
The purpose of this Research Paper is to update a 2012
Parliamentary Library Background
Note and to draw more widely on the extensive resources available on
this subject. The paper covers a range of topics including:
- the views of the political parties
- constitutional issues and the 2013 High Court Same-sex
marriage case. In that case the Court found the ACT same-sex marriage law
was in conflict with the Commonwealth Marriage Act 1961
and therefore inoperative and ‘of no effect’. Equally significantly, the Court
resolved any doubts as to the scope of the ‘marriage power’ finding that the
federal Parliament has the power to legislate about same-sex marriage
- a comparative analysis of the four private member Bills before
the Parliament, introduced by Senator
Hanson Young, Senator Leyonhjelm, Mr Shorten MP and a cross party Bill sponsored by Mr
Entsch MP. All Bills are similar in that they insert a new identical
definition of marriage into the Marriage Act encompassing unions of any
two people regardless of sex, and repeal the existing ban on the recognition of
same-sex marriages solemnised overseas. The Bills differ in style and substance
in relation to the provisions dealing with exemptions for marriage celebrants
who may have religious or conscience objections to solemnising gay marriages
- a short section comparing the differences between a plebiscite
and a referendum, included in response to the recent announcement
by the Prime Minister that a popular vote will be held
- comparative material on international developments in other
common law countries that have legalised same-sex marriage including the United
Kingdom, South Africa, New Zealand, the United States and Canada
- a discussion of the arguments about the possible conflict between
marriage equality and religious freedom including the Australian
Human Rights Commissioner’s proposed compromise of providing a ‘two tier’
approach that would structurally separate the religious and civil definitions
of marriage in the Marriage Act (Cth) but treat them equally in law.
In addition, the paper replicates parts of the 2012 Background
Note, including a history and outline of the Marriage Act and an
appendix dealing with other forms of relationship recognition.
As the paper concludes, Australia has achieved a high degree
of equality between the treatment of same-sex and heterosexual relationships
with marriage remaining the one significant area of difference. For some, it is
important to take time to ponder and consider the full implications of changing
the meaning of this ancient institution. For others, including those who live
with the memories and scars of the criminalisation and prejudice endured by
homosexuals in the past, it is important to move swiftly to remove this last
remaining area of difference. Overseas experience would suggest that a long and
protracted discussion about the meaning of marriage, leading up to a popular
vote some 18 months away, is likely to promote a passionate, robust and even
strident or divisive debate within the Australian community.
Contents
Executive
summary
Introduction
Position of the political parties
Australian Labor Party
Coalition
Australian Greens
The Marriage Act 1961—outline
The definition of ‘marriage’ and the
2004 amendments to the Marriage Act 1961
Constitutional questions—The High
Court and the Same-sex marriage case
The legislative power of the
Commonwealth with respect to same-sex marriage and the definition of ‘marriage’
After the Same-sex marriage case:
can a state Parliament legislate for same-sex marriage?
Bills supporting amendment of the Marriage
Act 1961 to allow same-sex marriage
Bills in the current Parliament (44th Parliament)
Purpose of the Bills
Key issues and provisions in the four
Bills
Definition of marriage
Recognition of same-sex marriages
conducted overseas
Authorised celebrants under the
Marriage Act
Current exemption for ministers of
religion in the Marriage Act
Section 47: ‘or in any other law’
Exemption for ‘authorised celebrants’
Obligation on state and territory
marriage registrars
Defence Force chaplains
Exemption for services
Other provisions
A popular vote rather than a Bill:
plebiscite or referendum?
Views
Marriage equality versus religious
freedom
Conclusion
Appendix 1—International developments
Canada
South Africa
United Kingdom
New Zealand
United States
France
Appendix 2—Alternative forms of
relationship recognition in Australia
Presumptive de facto recognition
Registered relationships
Civil unions
Do these forms of relationship
recognition equate to marriage?
Same-sex marriage has been on the
political agenda in Australia for several years, as part of the broader debate
about the legal recognition of same-sex relationships. During the 44th
Parliament, that debate has further intensified, triggered in part by international
developments in the United Kingdom, New Zealand, the United States and Ireland
where same-sex marriage is now being permitted either through legislative or
judicial means. The debate has been further spurred on by the introduction of
a raft of private members Bills into the Parliament; and more recently by the
Coalition party room decision to reject a policy change on same-sex
marriage—the Prime Minister preferring instead a proposal to put the matter to
a popular vote after the next election. There has been a shift in community and
political opinion however the issue of same-sex marriage remains complex and
controversial. It has raised human rights and constitutional law issues, as
well as a raft of social, religious, moral and political questions.
Apart from marriage, it is generally accepted that the
expansion of legal rights and protections afforded to same-sex couples in
Australia is well developed at both federal and state level. For example,
legislation exists in four states and the Australian Capital Territory that
provides for the legal recognition of relationships that may include same-sex
unions.[1]
At the federal level, in 2008 and 2009 there was a wide-ranging suite of
reforms to provide equal entitlements and responsibilities for same-sex couples
in areas such as social security, veterans’ entitlements, employment, taxation,
superannuation, immigration and workers’ compensation.[2] However there remains one significant area
of difference between the treatment of same-sex and heterosexual relationships,
and that is in relation to the institution of marriage. While there are fewer
and fewer rights and obligations attached to married couples which do not
attach to de facto couples—a status currently encompassing same-sex couples in
most legal contexts— supporters of gay rights argue this is not enough. They
say civil unions and domestic partner registries are not
sufficient and, for true equality, same-sex couples must have the right
to marry.
The purpose of this Research Paper is
to update a Library Background Note on same-sex marriage published in 2012.[3]
The paper takes account of developments regarding same-sex marriage that have
occurred since 2012. It contains new material on:
-
the position of the political parties
-
same-sex marriage Bills before the Parliament
-
constitutional issues including the High Court Same-sex
marriage case
-
the proposal for a popular vote
-
the debate about marriage equality versus religious freedoms and
-
international developments focusing on common law countries (Appendix
1)
The
Research Paper also replicates parts of the previous Background Note including
the sections dealing with:
-
the Marriage
Act 1961 (Cth)[4]
and the 2004 amendments to that Act and
-
alternative types of relationship recognition in Australia
(Appendix 2)
At a political level, the two major parties had until 2011
opposed same-sex marriage. That situation changed in December 2011 when at the
Labor Party Conference, the Party’s platform was amended to support same-sex
marriage but to allow Labor MPs to have a conscience vote.[5]
During the 43rd Parliament Labor chose not introduce a government
Bill but rather Labor backbencher Stephen Jones introduced a private member’s
Bill. That Bill was defeated at the second reading stage in the House of
Representatives.[6]
In July 2015, the issue of same-sex marriage was again on
the Labor Party conference agenda with the Party agreeing to retain the
existing policy of allowing a conscience vote during the current and next terms
of Parliament. However should same-sex marriage not be legalised by 2020
members would then be bound to support same-sex marriage. This motion was the
compromise reached to accommodate those in the Party calling for the removal of
the conscience vote.[7]
On 27 May 2015 the Opposition Leader Bill Shorten introduced
a private member’s Bill into Parliament that would legalise same-sex marriage
and remove barriers to recognition of overseas same-sex marriage. The Bill is
still before the House. At the time of introduction Prime Minister Abbott and
others suggested that such an important matter should be owned by the
Parliament rather than one party. The Labor Party has since given support to
the more recent cross party private member’s Bill introduced by Mr Warren
Entsch. More recently Mr Shorten has promised that if elected at the next
election, a Labor Government would introduce marriage equality legislation
within 100 days of taking office.[8]
The Coalition’s policy has been, and remains, that marriage
is a union between a man and woman. Prime Minister Abbott has consistently
opposed same-sex marriage and in the parliamentary debates on the same-sex
marriage Bills during the 43rd Parliament, Coalition MPs were not
permitted a conscience vote. In the 2013 election campaign the Prime Minister
retained his position and said that if elected a Coalition Government would not
introduce same-sex marriage in the government’s first term and that any
proposal for change to this policy would be put to a meeting of the joint party
room.[9]
A number of Coalition members including cabinet ministers
Malcolm Turnbull, Simon Birmingham, Josh Frydenberg and Kelly
O’Dwyer have indicated they would support same-sex marriage legislation
if the party room determined a conscience vote is available.[10]
The Coalition’s position was again in the spotlight in the
first week of the Parliamentary sittings in August 2015. In anticipation of the
introduction of Liberal backbencher Warren Entsch’s private member’s Bill, the
Prime Minister called a special Coalition party room meeting, to discuss the
question of a conscience vote on same-sex marriage. After a six hour meeting,
that was the subject of significant media reporting,[11]
the Coalition voted to retain its current position that marriage can only be a
union between a man and a woman with no provision for a conscience vote on the
issue. It is reported that 42 per cent of Liberal MPs and 14 per cent of Nationals
MPs supported a conscience vote on same-sex marriage, the combined vote being about
one-third of the joint party room.[12]
In interviews the following day the Prime Minister indicated
that the ‘strong disposition’ that came from the Party Room meeting was a very
strong commitment to maintain the existing position for this term of parliament
but a belief that, in the next term of parliament, the question of same-sex
marriage should go to a popular vote—either a plebiscite or referendum.[13]
Several backbenchers including Warren Entsch, Teresa
Gambaro, Wyatt Roy and Senator Dean Smith have indicated they would cross the
floor on any vote on same-sex marriage, although it is unlikely that such a
Bill would be debated during the term of this Parliament. Mr Abbott has said
that the Bill sponsored by Warren Entsch will be accorded the normal rules of
private member’s bills. Mr Abbott has also clearly indicated that, while
backbenchers have the freedom to cross the floor, the normal rules would apply
to member of cabinet who would be expected to vote according to Party policy.[14]
The Australian Greens and before them the Australian
Democrats have consistently supported same-sex marriage and have sought to
legislate in support of their position in all Parliaments since 2004.
The Marriage Act 1961 (Cth) deals with a range of
matters. Its main purpose at the time of enactment was to bring the regulation
of marriage into the jurisdiction of the Commonwealth. Until 1961 marriage had
been regulated by state and territory law and there were nine separate and
diverse systems of marriage law in Australia.[15]
Prior to Federation marriage had been covered by the laws of the colonies. The
colonial statutes dealing with marriage and divorce were subject to
disallowance by the Imperial Parliament, with a view, as Quick and Garran
explained, to securing ‘uniformity of marriage laws among the Christian races
of the Empire’.[16]
A Marriage Bill was first introduced into the Commonwealth
Parliament in 1960. The Bill was not dealt with in 1960 and was re-introduced
in 1961. The federal Attorney-General Sir Garfield Barwick at the time stated
the main purpose of the legislation was to:
Produce a marriage code suitable to present day Australian needs,
a code which, on the one hand, paid proper regard to the antiquity and
foundations of marriage as an institution, but which, on the other resolved
modern problems in a modern way.[17]
In 1961 the concept of modern marriage was a heterosexual
union where the parties pledged monogamy and permanency in their relationship.[18]
Amongst other things the Marriage Act currently:
-
sets the marriageable age and allows the marriage of minors in
certain circumstances
-
establishes the framework for marriage ceremonies. Parties can
marry in public or private, provided there is an official celebrant and two
witnesses to the declarations between the parties. Particular words are
prescribed for marriages solemnised by civil celebrants which reflect the
understanding of marriage in Australian law. Religions which have been
recognised as requiring monogamy and permanency as promises of marriage are
permitted to use their own ceremony.[19]
-
establishes the framework of the regulation of authorised
marriage celebrants (both religious and non-religious)
-
deals with issues of consent, void marriages and legitimacy of
children
-
creates offences relating to bigamy, under-age marriages, and
marriages not performed according to the required notice periods etc.
-
defines marriage to mean ‘the union of a man and a woman to the
exclusion of all others, voluntarily entered into for life’ and
-
deals with the recognition of validly contracted foreign
marriages for the purposes of Australian domestic law, and from 2004,
specifically excludes same-sex marriages from such recognition.
As noted above, the Marriage Act 1961 (Cth) now
defines marriage as ‘the union of a man and a woman to the exclusion of all
others, voluntarily entered into for life’.[20]
However the Marriage Act as originally enacted in 1961 did
not contain a definition of marriage. Delivering the second reading speech,
Attorney General Barwick said:
... it will be observed that there is no attempt to define
marriage in this bill. None of the marriage laws to which I have referred
contains any such definition. But insistence on monogamous quality is indicated
by, on the one hand, the provisions of the Matrimonial Causes Act, which render
a marriage void where one of the parties is already married, and by a provision
in this bill making bigamy an offence.[21]
On its passage through Parliament, Senator Gorton, who was
responsible for the carriage of the Bill through the Senate, remarked:
... in our view it is best to leave to the common law the
definition or the evolution of the meaning of ‘marriage’ as it relates to
marriages in foreign countries and to use this bill to stipulate the conditions
with which marriage in Australia has to comply if it is to be a valid marriage.[22]
While the original Act did not define marriage, section 46
of the Act incorporated the substance of the 19th century English case law
definition of marriage found in Hyde v Hyde & Woodmansee.[23]
Section 46 says that celebrants should explain the nature of the marriage
relationship with words that include:
...Marriage, according to law in Australia, is the union of a
man and a woman to the exclusion of all others, voluntarily entered into for
life ...
However these words were seen as a description or exhortation
rather than a definition.[24]
The definition of marriage now in the Marriage Act was
inserted in 2004,[25]
its stated purpose being to reflect ‘the understanding of marriage held by the
vast majority of Australians’.[26]
The Government stated that:
It is time that those words form the formal definition of
marriage in the Marriage Act.
The bill will achieve that result.
Including this definition will remove any lingering concerns
that people may have that the legal definition of marriage may become eroded
over time.[27]
The definition of marriage was inserted along with changes
to expressly preclude the recognition of same-sex marriages conducted overseas.
These amendments were in the main a response to the legalisation of same-sex
marriage in a number of overseas jurisdictions. In this regard, the
Attorney-General, Philip Ruddock, stated:
A related concern held by many people is that there are now
some countries that permit same-sex couples to marry. It has been reported that
there are a few Australian same-sex couples who may travel overseas to marry in
one of these countries on the basis that their marriage will then be recognised
under Australian law on their return. Australian law does, as a matter of
general principle, recognise marriages entered into under the laws of another
country, with some specific exceptions. It is the government‘s view that this
does not apply to same-sex marriages. The amendments to the Marriage Act
contained in this bill will make it absolutely clear that Australia will not
recognise same-sex marriages entered into under the laws of another country,
whatever country that may be.[28]
At the time, these amendments and their method of enactment
were controversial and contentious. There were in fact two Bills the first (the
Marriage Legislation Amendment Bill 2004) contained amendments to define
marriage and to preclude recognition of overseas same-sex marriages in
Australia, but also included amendments to prevent same-sex couples adopting
children from overseas. This first Bill was referred to a Senate Committee for
inquiry but within a day of its referral a second Bill (the Marriage Amendment
Bill 2004) was introduced into Parliament. This second Bill did not contain the
amendments relating to overseas adoption —these being the ones that the Labor
Party had indicated it would not support.[29]
At the same time, the parliamentary committee inquiry into the first Bill was
also abandoned. The rationale for this unusual and dramatic change of direction
was so that the Bill would have a speedy passage through the Parliament. The
Attorney-General the Hon Philip Ruddock stated:
If this bill is acceded to today, I want to make it very
clear that the reason for this, without breaching any privacy matters, is that
some parties have already sought recognition of offshore arrangements approved
under the laws of other countries and would be seeking recognition under our
law.
It is the government's view that the provisions of the
Marriage Act which we are seeking to enact should not be delayed and should not
be the subject of Senate referral. The opposition having indicated its support
for these measures should ensure—having restricted it to those matters that
relate to a definition of marriage and the recognition of overseas marriages,
which they say they support—that they receive a speedy passage.[30]
While the legislation had the support of both major parties
the Labor Party expressed reservations about the process of enactment.[31]
The Greens labelled it as discriminatory against the gay and lesbian community
and condemned both the Government and the Labor Party for failing to
acknowledge the change in present day society in the make-up of couples.[32]
The Hon Alastair Nicholson, former Chief Justice of the Family Court of
Australia described it as ‘one of the most unfortunate pieces of legislation
that has ever been passed by the Australian Parliament’.[33]
Section 51(xxi) of the Australian Constitution
provides that the federal Parliament has power to make laws with respect to
‘marriage’. That power is not further defined by the Constitution and
until the 2013 High Court Same-sex marriage case[34]
there were doubts about whether the ‘marriage power’ could support a
Commonwealth law that recognises same-sex marriage. A key question had been
whether the marriage power is the power fixed to its 1900 meaning, or is it
able to evolve or adapt in line with changed events or attitudes. Legal
academics, engaging with this question agreed that, should any Australian
parliament legislate to allow same-sex marriage there would undoubtedly be a
constitutional challenge to its validity in the High Court.[35]
In terms of the Constitution, the ‘marriage power’ is
a ‘concurrent power’ meaning both the Commonwealth and the states can make laws
regarding marriage, however should the state law be inconsistent with the
Commonwealth law (the Marriage Act), the Commonwealth law would prevail
and the state law would become inoperative to the extent of the inconsistency.[36]
The numerous unsuccessful attempts at federal level to bring
about changes to the Marriage Act caused marriage equality advocates to
turn to reform at state level. Introducing same-sex marriage in a state and
territory was seen as a fall-back position with several states, including New
South Wales, Tasmania, Western Australia and South Australia making various
attempts to introduce same-sex marriage laws.[37]
It was however the ACT that established Australia’s first same-sex marriage
laws with the enactment of the Marriage Equality (Same Sex) Act 2013
(ACT)[38]
(ACT Act) on 22 October 2013. A number of same-sex couples immediately
took advantage of this law to undertake their wedding vows and around 30
same-sex marriages were performed after 7 December 2013, the date when, due to
notice requirements, marriages could first occur. The new law received national
as well as local attention and was a cause for both celebration and
condemnation.
The Commonwealth’s response to the new ACT law was to bring
a challenge in the High Court. On 12 December 2013 in Commonwealth
v Australian Capital Territory (the Same-sex marriage case), the
Court held that the whole of the Marriage Equality (Same Sex) Act (ACT) was
inconsistent with the Marriage Act (Cth).[39]
As a result the Court stated that the ACT law was inoperative and ‘of no
effect’. This finding of inconsistency meant that the ACT law had never come
into effect and those ACT marriages ceremonies had not been authorised by law.
The people who had gone through a wedding ceremony had not actually been
married. Some would say that those ‘marriages’ were not in vain— that they had
a social and psychological effect of making same-sex marriages more acceptable.
The High Court’s decision on the ACT law was unanimous,
decisive and remarkable on several levels. Firstly unlike courts in other
jurisdictions considering a case of this kind,[40]
the decision was based not on human rights issues but rather on questions of
federalism and inconsistency of laws. It was based upon the finding that the
federal Marriage Act provides ‘a comprehensive and exhaustive statement
with respect to the creation and recognition of the legal status of marriage’.[41]
In supporting this conclusion, the Court referred to the fact that the Marriage
Act had been amended in 2004 so as to define marriage as ‘the union of a
man and a woman to the exclusion of all others, voluntarily entered into for
life’, and to provide expressly that ‘a union solemnised in a foreign country
between persons of the same-sex must not be recognised as a marriage in Australia’.[42]
In these circumstances, the Court held that the ACT Act was not capable
of operating concurrently with the Marriage Act (Cth to any
extent.[43]
The case was also remarkable in that the High Court provided
a very broad definition of marriage, based on a new approach to constitutional
interpretation that some legal academics considered both surprising and
unnecessary.[44]
While the case had not been framed by reference to the Commonwealth’s broader
marriage power, the Court has now resolved any doubt as to the scope of that
power.
The practical effect of the decision has been that the
recognition of same-sex marriage is now regarded as a political choice for the
Commonwealth rather than a legal matter.[45]
The Court has resolved any doubt as to the scope of the marriage power. The
decision has effectively given a constitutional tick of approval to any
potential future Commonwealth law providing for the solemnisation and recognition
of same-sex marriage and will allow any future same-sex marriage legislation to
be debated in the Commonwealth Parliament solely on its political and moral
merits.[46]
The High Court approached the case by first considering the
power of the Commonwealth Parliament to enact a law providing for the
solemnisation of same-sex marriage. This, the Court said, was necessary because
the ACT Act would probably operate concurrently with the Marriage Act
if the federal Parliament had no power to make a national law providing for
same-sex marriage.[47]
The Court was not prepared to consider directly the meaning
of the term ‘marriage’ in 1900 or its meaning in Australia today, holding that
‘the status of marriage, the social institution which that status reflects, and
the rights and obligations which attach to that status never have been, and are
not now, immutable’.[48]
Instead the Court developed an alternative method of interpretation deciding
that marriage in section 51(xxi) is a topic of juristic classification, the
content of which is to include laws of a kind ‘generally considered, for
comparative law and private international law, as being the subjects of a
country’s marriage laws’.[49]
In other words, the meaning of marriage for constitutional purposes is to be
interpreted by reference to the scope of marriage laws in a global sense.[50]
Accordingly, from this juristic classification, the Court concluded that
marriage in section 51(xxi) of the Constitution is to be understood in
an extremely broad sense as being:
... a consensual union formed between natural persons in
accordance with legally prescribed requirements which is not only a union the
law recognises as intended to endure and be terminable only in accordance with
law but also a union to which the law accords a status affecting and defining
mutual rights and obligations.[51]
The High Court concluded that it was not possible to limit
the juristic concept of marriage to that which occurs in Christian nations. It
noted:
Some jurisdictions outside Australia permit polygamy. Some
jurisdictions outside Australia, in a variety of constitutional settings, now
permit marriage between same-sex couples [....]
... It is not useful or relevant for this Court to examine
how or why this has happened. What matters is that the juristic concept of
marriage (the concept to which s 5 l(xxi) refers) embraces such unions. They are
consensual unions of the kind which has been described.[52]
Constitutional Law Professor Anne Twomey, from the
University of Sydney is critical of the High Court’s approach for several
reasons. Firstly she argues that the Court went beyond the submissions of the parties
and what was necessary to decide the case.[53]
Secondly Professor Twomey notes that the Court developed a new approach to
constitutional interpretation and in doing so she argues it drew controversial
links between polygamy and same-sex marriage which marriage equality activists
have long been at pains to avoid. In her view the Court has also developed a
very broad constitutional meaning of ‘marriage’ which potentially incorporates
relationships to which many may currently object.[54]
On the first of these matters, the need to declare the full
scope of the marriage power, Twomey states:
As is well known, the High Court has consistently
refrained from declaring the full scope of a head of legislative power, as this
would involve going beyond the matters at issue in the case before it. It would
also involve the court in adjudicating on questions that affect the interests
of others who have not been represented in the proceedings and were therefore
unable to present arguments for the court's consideration. [55]
Undoubtedly the Court framed the logic of its decision
more broadly than was expected, however they felt impelled by the logic of the
situation to reach their conclusion. It is also important to note that having a
broad Commonwealth power to regulate an area does not mean that it needs to be
or will be used.
Furthermore as Professor Twomey also acknowledges, if the
High Court had not considered the scope of the marriage power in this case, it
would have been criticised for not taking the opportunity to resolve the
uncertainty and avoid future litigation on the subject.
The second area of criticism by Professor Twomey, the
reliance by the Court on a ‘juristic classification of marriage,’ raises
questions of complex constitutional interpretation which are beyond the scope
of this paper.[56]
For further analysis of this case, the reader is referred to Professor Twomey’s
papers and articles by Professor George Williams and Patrick Parkinson and by
Shipra Chordia.[57]
A question remains as to whether it may be possible for a
state to enact legislation providing for some form of legal recognition of some
different kind of union between same-sex couples; a union not in the nature of
‘marriage’.
It is generally agreed that since the Same-sex marriage
case, there is little likelihood of success after the Court made it clear
that the mere avoidance of the term ‘marriage’ itself would not be enough
to escape a conclusion that such legislation is inconsistent with the Marriage
Act: ‘the topic within which the status falls must be identified by reference
to the legal content and consequences of the status, not merely the description
given to it’.[58]
Well-known constitutional lawyer Professor George Williams
has argued there are good legal reasons why Australia's state parliaments might
continue to consider same-sex marriage law and that such debates would be far
from a waste of time:
It remains possible as a matter of law for a state to enact a
same-sex marriage statute. Such a law could be defended in the High Court and
it is possible, though unlikely, that it would survive such a challenge. However,
even if the High Court found the state statute to be inconsistent with the
federal Marriage Act, the state law would remain on the statute books. Indeed,
it would be revived if the federal Marriage Act were amended to provide
room for its operation.[59]
Quite apart from these legal arguments, Williams also
believes there are other policy reasons why a state parliament might consider
enacting its own same-sex marriage law.
Parliamentarians not only make laws, they provide leadership
to the community on social and other issues.
Irrespective of any legal outcome, enacting a same-sex marriage
law would provide a very strong statement of support for such a change, and
more generally for principles such as equality and non-discrimination. State leadership
could even play a key role in the national debate. The enactment of state
same-sex marriage laws, whatever the outcome in the High Court, would place
further pressure on the federal Parliament to act.[60]
Since the enactment of the 2004 amendments to the Marriage
Act (Cth) which inserted the current definition of marriage, there have
been 17 Bills dealing with same-sex marriage introduced
into the federal Parliament. Only
four of those Bills have come to a vote and no Bill
has progressed past the second reading stage. All 17 Bills have been private
members’ Bills, introduced by members of parliament representing the Australian
Democrats, the Australian Greens, the Australian Labor Party, independents, and
one Liberal Democratic Party member. Parliamentary Committees have
reported on five of those 17 Bills.
For further detail on these Bills, the reader is referred
to:
For
further detail on Bills in the 43rd Parliament, the reader is
referred to:
Currently there are four private members Bills before the
Parliament that would amend the Marriage Act to permit same-sex marriage[61]:
The following commentary makes a number of
references to the House of Representatives Standing Committee on Social
Policy and Legal Affairs 2012 inquiry into same-sex marriage
Bills.[63]
For consistency the committee is referred to as the ‘2012 committee inquiry
into the same-sex marriage Bills’.
The purpose of all four Bills is:
-
to allow any two people to marry
-
to allow same-sex marriages conducted overseas to be recognised
under Australian law and
- to provide for or clarify that a minister of religion or a
chaplain would not be compelled to solemnise a marriage. The Leyonhjelm
Bill extends this provision to cover Commonwealth marriage celebrants.
The Leyonhjelm Bill and Entsch Cross Party
Bill have an additional purpose to:
-
provide that state and territory marriage registrars may not
refuse to celebrate marriages that would be valid according to the Marriage
Act (Cth).
Currently subsection 5(1) of the Marriage Act defines
marriage to mean ‘the union of a man and a woman to the exclusion of all
others, voluntarily entered into for life’.
All four Bills repeal this definition and replace it with:
marriage means the union of two/2 people, to the exclusion of
all others, voluntarily entered into for life.[64]
Comment
This definition is essentially the same as the definition used
in the Canadian Civil Marriage Act 2005. Submissions to the 2012 Committee
inquiry into the same-sex marriage Bills recommended the Canadian model and
suggested that drafting the definition in these terms without reference to sex,
sexual orientation, or gender identity was to be preferred.[65]
All four Bills repeal section 88EA of the Marriage Act
that prohibits the recognition of marriage between same-sex couples solemnised
in a foreign country. The effect of the repeal would be that same-sex marriages
solemnised in a foreign country will be recognised in Australia as valid
marriages (subject to any of the restrictions which currently apply in section
88D).[66]
The Entsch Cross Party Bill also provides that this
amendment will apply retrospectively meaning that overseas same-sex marriages
that took place prior to commencement of this amendment will also be
recognised. The previous Bills do not include this provision and it is unclear
whether this amendment is necessary to enable earlier overseas same-sex
marriages to be recognised.
Under the Marriage Act (Cth), there are three major
classes of authorised marriage celebrants. Two of these continue to be regulated
by the state and territory Registries of Births, Deaths and Marriages and the
third and more recent class is regulated by the Commonwealth. These classes
are:
-
celebrants from recognised religious denominations proclaimed
under section 26 of the Marriage Act who are nominated by their
denomination and registered and regulated by state and territory Registries of
Births, Deaths and Marriages (‘recognised religious denomination celebrants’)
-
state and territory officers authorised to solemnise marriages under
subsection 39(1) of the Marriage Act and registered by state and
territory Registries of Births, Deaths and Marriages (‘state and territory
marriage registrars’)
-
Commonwealth-registered marriage celebrants who are authorised
under the Marriage Celebrants Program to perform marriages (‘Commonwealth
marriage celebrants’). This group includes civil celebrants and celebrants who
are ministers of religion whose denomination is not proclaimed under section 26
of the Marriage Act (for example, Sikhs, Buddhists and World Harvest
Ministries)
There is also a fourth
much smaller category of celebrants, namely Defence Force chaplains. Part V of
the Marriage Act (Cth) allows Defence Force chaplains to solemnise
marriages where at least one of the parties is a member of the Defence Force
and where this marriage occurs in an overseas country.[67]
Section 47 of the Marriage Act (Cth) provides that
religious ministers can refuse to solemnise any particular marriage:
Nothing in this Part:
(a) imposes an obligation on an authorised celebrant, being a
minister of religion, to solemnise any marriage; or
(b) prevents such an authorised celebrant from making it a
condition of his or her solemnising a marriage that:
(i) longer
notice of intention to marry than that required by this Act is given; or
(ii)
requirements additional to those provided by this Act are observed.
Exemptions for ministers of religion in the four Bills
The four Bills all have provisions clarifying that ministers
of religion are not bound to solemnise same-sex marriages. However the Bills
differ in substance and approach. All four Bills include a clarifying provision
stating that ministers of religions are not bound to solemnise any marriage.
The clarification clauses in the Hanson-Young Bill and Leyonhjelm
Bill are drafted so that they would remain in the amending Act. In contrast the
clauses in the Shorten Bill and the Entsch Cross Party Bill
are more explicit and drafted so that they would be inserted in the Marriage
Act (Cth) at the end of section 47.
In the Hanson Young Bill item 8 in Schedule 1 of the
Bill states:
To avoid doubt, the amendments made by this Schedule do not
limit the effect of section 47 (ministers of religion not bound to solemnise
marriage etc.) of the Marriage Act 1961.
The Leyonhjelm
Bill is similar. Item 9 in Schedule 1 adds a clarifying note that would
remain in the Freedom to Marry Act rather than the Marriage Act:
To avoid doubt, the amendments made by this Schedule do not
require ministers of religion to solemnise marriages.
In contrast, the Shorten Bill and the Entsch Cross Party
Bill amend section 47 in the Marriage Act adding a note at the end of
that provision stating:
one effect of paragraph (a) is that a minister of religion
cannot be required to solemnise a marriage where the parties to the marriage
are of the same sex (Shorten Bill)[68]
a minister of religion may refuse to solemnise a marriage for
any reason, including because to do so would be contrary to the minister’s
beliefs or the minister’s understanding of the doctrines, tenets, beliefs or
teachings of the minister’s denomination’.[69]
(Entsch Cross Party Bill)
Both styles of drafting have a similar effect, although the
approach in the Shorten/Entsch Bills of inserting the
more explicit note into the Principal Act may provide more clarity. In
commenting on similar provisions in the same-sex marriage Bills tabled in the
last Parliament, the Gilbert & Tobin Centre of Public Law argued:
being as explicit as possible in the Bill on this point in
the context of same-sex marriage may be desirable, particularly given the
Constitution’s guarantee in section 116 that the Commonwealth cannot limit the
free exercise of religion. [70]
The Shorten, Hanson Young and Entsch Cross Party Bills all
amend section 47 in the Marriage Act (Cth) by adding the words ‘or in
any other law’ to make it clear that there is no other source of legal
obligation on a minister of religion to solemnise a marriage. The Explanatory
Memorandum to the Entsch Cross Party Bill states that this amendment is necessary
to ensure that other laws, such as the Sex Discrimination Act 1984 (Cth)
do not compel ministers of religion to solemnise a marriage.[71] A minister might refuse to
solemnise a marriage for any reason, including because it would be contrary to
the minister’s beliefs, or understanding of the doctrines, tenets, beliefs or
teachings of the minister’s denomination.[72]
It is of note that some religious groups requested this
amendment when making submissions to the 2012 parliamentary committees
inquiring into the same-sex marriage Bills. They argued that this is necessary
to make clear that there is no other source of legal obligation (such as
anti-discrimination or equality laws) for a minister of religion to solemnise a
marriage involving a same-sex couple.[73]
The Leyonhjelm Bill extends the exemption in section 47
beyond ministers of religion to other authorised celebrants with the exception
of state and territory marriage registrars. The rationale for this amendment is
to protect not only religious conscience but also conscience claims by those
who are not religious.[74]
The Coalition of Celebrant Associations Inc (CoCA) argued
for such an exemption in their submissions to the 2012 Committee inquiry into the
same-sex marriage bills. CoCA’s submission states:
It cannot be assumed that all celebrants who deliver civil
marriage services would support a change in the definition of marriage. Because
of the broad range of authorised persons, there are varying levels of support
for any change in the definition of marriage that gives equal legal recognition
to same sex relationships. CoCA considers that if religious celebrants are
given the freedom to choose or refuse to marry any couple on the basis of
belief, then the same respect needs to be afforded to celebrants offering civil
ceremonies.
The Entsch Cross Party Bill rejected the idea of extending
the exemption to other authorised celebrants:
It is not considered appropriate to extend the right to
refuse to solemnise marriages to other authorised celebrants. Under the Code of
Practice for Marriage Celebrants and existing Commonwealth, State and Territory
discrimination legislation, authorised celebrants who are not ministers of
religion or chaplains cannot unlawfully discriminate on the grounds of race,
age or disability. To allow other authorised celebrants to discriminate on the
grounds of a person’s sex, sexual orientation, gender identity or intersex
status would treat one group of people with a characteristic that is protected
under discrimination legislation differently from other groups of people with
characteristics that are also protected.[75]
Religious groups would presumably support opening up the
exemption to all ‘authorised celebrants’, thereby ensuring that Commonwealth
marriage celebrants with a religious belief opposing same-sex marriage would be
exempt from solemnising same-sex marriage. The Anglican Church Diocese of
Sydney made such a suggestion in a submission to the 2012 Committee inquiry
into the same-sex Bills:
We are ... aware that in the United Kingdom civil celebrants
who are Christian have been forced, due to equality laws and policies, to
conduct civil partnership ceremonies for same-sex couples against their own
consciences or risk losing their jobs (even though there are few ceremonies for
same-sex couples and they are easily covered by other celebrants). There is no
reason to think the same will not occur in relation to the solemnisation of
marriages involving same-sex couples should they become lawful in the United
Kingdom.
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.[76]
Under section 39 of the Marriage Act (Cth) state and
territory officers are authorised to solemnise marriages. 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).[77]
This provision is based on the premise that authorised celebrants in the employ
of the state should not be able to discriminate.[78]
In the Entsch Cross Party Bill, item 4 amends section
39 to provide that a state and territory marriage registrar must not refuse
to solemnise a marriage if the refusal would amount to unlawful discrimination
within the meaning of the Australian Human Rights Commission Act (Cth),
providing the marriage is otherwise lawful.[79]
The effect of this amendment is similar to the Leyonhjelm Bill in that it would
ensure that marriage registrars would be obliged to solemnise same-sex marriage
as long as there were no other legal impediments under the Marriage Act (Cth).
Its effect would also be that ‘people who choose to get married without using a
minister of religion, a chaplain or a marriage celebrant can do so without
facing unlawful discrimination’.[80]
This issue has arisen in some overseas jurisdictions
including the United Kingdom and Canada where marriage registry office
celebrants have declined to solemnise same-sex marriages or civil partnerships
on religious grounds. In the United Kingdom a registrar at Islington Borough
Council and a Christian was dismissed for refusing to perform same-sex
partnership ceremonies. In Ladel v London Borough of Islington, Lord
Neuberger said that under the Equality Act (Sexual Orientation) Regulations
2007 it was ‘simply unlawful’ for Miss Ladel to refuse to perform civil
partnerships.[81]
A similar situation arose in Canada. There, the Civil
Marriage Act of 2005 permits same-sex marriage and provides a clear exemption
for officials of religious bodies. However it was found by a provincial court
(the Court of Appeal for Saskatchewan) soon after enactment of the 2005
same-sex marriage laws that a marriage commissioner‘s refusal to solemnize
same-sex marriage on the basis of religious beliefs was unlawful.[82]
Crucially, while acknowledging religious freedoms afforded under section 2(a)
of the Canadian Charter of Rights and Freedom, the Court said that marriage
commissioners
do not act as private citizens when they discharge their
official duties ... they serve as agents of the province.
The Court added,
a system that would make marriage services available
according to the personal religious beliefs of commissioners is highly problematic.[83]
Part V of the Marriage Act (Cth) allows Defence Force
chaplains to solemnise marriages where at least one of the parties is a member
of the Defence Force and where this marriage occurs in an overseas country.[84]
Defence Force chaplains are classed as ‘religious celebrants’ so the exemption
in section 47 of the Marriage Act (Cth) for ‘religious celebrants’ will
automatically apply.
Two of the Bills include additional provisions affecting
chaplains:
-
The Entsch Cross Party Bill adds a further clarifying note to
section 81 providing that a chaplain may refuse to solemnise a marriage on the
ground that the solemnisation of the marriage would be contrary to the
chaplain’s beliefs or the chaplain’s understanding of the doctrines, tenets,
beliefs or teachings of the chaplain’s church or faith group.[85]
This is a clarifying provision only and is legally unnecessary.
-
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.[86]
While there has been public debate about the rights of wedding
service providers such as caterers or florists to refuse services for gay
weddings,[87]
none of the four Bills include provisions that would provide exemptions in
relation to providing goods or services for weddings. The Entsch Cross Party
Bill explains the rationale for rejecting this option:
It is not considered appropriate to amend the Sex
Discrimination Act 1984 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 already unlawful under discrimination legislation for
such persons to discriminate on the grounds of a person’s sex, sexual
orientation, gender identity or intersex status. 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.[88]
Objects clause
All four Bills contain an objects clause. 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 Hanson-Young Bill:
The objects of this Act are:
to remove from the Marriage Act 1961 discrimination
against people on the basis of their sex, sexual orientation or gender
identity; and
to recognise that freedom of sexual orientation and gender
identity are fundamental human rights; and
to promote acceptance and the celebration of diversity
The Leyonhjelm Bill:
The objects of this Act are:
to ensure the Marriage Act 1961 allows all Australians
the freedom to marry regardless of sex, sexual orientation, and gender
identity;
to facilitate less government intervention in private and
family life; and
to promote freedom of choice and conscience for individual
Australians.
The Shorten Bill:
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:
45 Form of ceremony
...
(2) Where a marriage is solemnised by or in the presence of
an authorised celebrant, not being a minister of religion, it is sufficient if
each of the parties says to the other, in the presence of the authorised
celebrant and the witnesses, the words:
"I call upon the persons here present to witness that I,
A.B. ( or C.D.), take thee, C.D. ( or A.B.), to be my lawful wedded wife ( or
husband)"; or words to that effect.
72 Form and ceremony of marriage [for members of the Defence
Force overseas]
...
(2) Unless, having regard to the form and ceremony of the
marriage, the chaplain considers it unnecessary for the parties to the marriage
to do so, each of the parties shall, in some part of the ceremony and in the
presence of the chaplain and the witnesses, say to each other the words:
"I call upon the persons here present to witness that I,
A.B. ( or C.D.), take thee, C.D. ( or A.B.), to be my lawful wedded wife ( or
husband)"; or words to that effect.
The Shorten and Hansen Young Bills amend subsections 45(2)
and 72(2) by inserting the words ‘or partner’ after the words ‘or husband’. The
Leyonhjelm Bill and the Entsch Cross Party Bill would insert the words ‘or
partner or spouse’. The effect of these amendments would mean couples would
have the choice of the following words:
-
to be my lawful wedded wife (or husband) (the current wording)
-
to be my lawful wedded partner (the words added by all four
Bills)
-
to be my lawful wedded spouse (the additional words in the
Leyonhjelm Bill and the Entsch Cross Party Bill).
It has been suggested that it can be implied through the
phrase ‘or words to that effect’ that ‘a partner’ or ‘spouse’ is covered by
these subsections, and that therefore, the proposed amendments to sections
45(2) and 72(2) are unnecessary.[89]
Marriage ceremony
The words to be spoken by an authorised marriage celebrant (other
than ministers of religions) would be changed by all four Bills to be:
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.[90]
Following the Coalition’s party room decision to retain its
existing policy regarding marriage and reject a possible conscience vote on
same-sex marriage, Prime Minister Abbott has stated there was a ‘strong
disposition’ from the party room to put the question of same-sex marriage to a
popular vote after the next election, either via a plebiscite or a referendum.[91]
In Australia, the terms ‘plebiscite’ and ‘referendum’ have
quite distinctive meanings.
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. 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?" There is much scope for using the words to
tilt the result one way or the other.[92]
Election analyst Anthony Green also notes that it would be
unlikely that changes to the Marriage Act (Cth) would be dependent on
the plebiscite. ‘The Parliament would still have to legislate the changes and
would presumably do so dependent on the plebiscite result.’[93]
There have only been three national plebiscites
in Australia:
-
1916: military service conscription (defeated)
-
1917: reinforcement of the Australian Imperial
Force overseas (defeated)
-
1977: choice of Australia’s national anthem
('Advance Australia Fair' preferred.)
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 2011 in relation to a proposed plebiscite on carbon tax:
‘Plebiscites are rare in Australia. 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.
...
...plebiscites bind no one and make no change to the law. 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.[94]
Referendums and plebiscites are different types of ballot. While
both entail a vote by Australia’s electors, a referendum is a vote to change
the Australian Constitution and the outcome is binding. 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 128 of
the Constitution. For a referendum proposal to succeed at federal level
it must obtain a ‘double majority’, meaning it must win the majority of votes
nationally and also win in a majority of the states (four out of six states).
Since Federation there have been 44 proposals for constitutional change put to
Australian electors at referendums. Only eight have been approved. The last
successful national referendum was in 1977 when Australians voted to, among
other things, set a retirement age of 70 for High Court judges. Each national
referendum since then has failed.
A referendum to decide the Commonwealth’s power over same-sex
marriage is not necessary. The High Court has already determined in the Same-sex
marriage case that the federal Parliament has the power to legislate on
this topic.
The proposal for a referendum has not taken a clear form. However,
if the proposal were to give the Commonwealth power to restrict the right of
the Parliament to legislate on same-sex marriage, it would be unlikely to
succeed. Obtaining a majority of votes nationally and a majority in four states
would be a high hurdle. In the unlikely event that such a referendum were
successful then state and territory powers in this area would quite likely be
revived and same sex marriage laws at state and territory level would again
become a real possibility.[95]
For opponents of same-sex marriage, it would be easier to
defeat a plebiscite on same-sex marriage than it would be to pass a referendum
constitutionally ruling out same-sex marriage.[96]
Immediate reaction to the proposal for a popular vote has
been mixed including within the Coalition. Prime Minister Abbott, in arguing in
support of a popular vote said: ‘this
[matter] in the end is so personal, so sensitive, so intimate, if you like,
that it really should be decided by people rather than by Parliament’.[97]
Those supporting the existing definition of marriage would appear to generally
agree with the Prime Minister. Minister Scott Morrison has come out strongly in
favour of a referendum,[98]
a view criticised by the Attorney-General who argues a referendum is ‘totally
unnecessary’ and that a plebiscite would be the only practical method of
popular vote on this issue.[99]
Malcolm Turnbull, who has consistently supported a conscience vote, showed some
disappointment saying that a plebiscite planned so far in advance will
unnecessarily place the matter in the public arena from now until after the
next election.[100]
The Opposition see it as a delaying tactic also pointing to
its substantial cost and its potential for divisiveness.[101]
Others question the reasoning for postponing until after next election and want
more detail on the format that would be adopted. Greens Leader Senator Di
Natale says that if there is to be a popular vote it must be a plebiscite held
at the next election and the question must to be drafted by Parliament rather
than the Government.[102]
Following that announcement, Greens Senator Rice introduced a cross party Bill[103]
and subsequently moved that a reference be given to the Senate Legal and
Constitutional Affairs References Committee on the matter of a popular vote, the
reporting date for the Committee being 16 September 2015.[104]
The numerous parliamentary committee inquiries into same-sex
marriage legislation, have canvassed at great length the various arguments for
and against same-sex marriage and the relevant committee reports provide an
excellent summary of those arguments. The views put to the 2009 Committee
inquiry were summarised in the previous Parliamentary Library Background
note and that summary still provides an accurate reflection of views on
both sides of the debate.[105]
However since those Committee inquiries, the emphasis of the
debate appears to have shifted with a strong focus moving to questions
regarding religious freedoms. A central question now being debated is how far
religious exemptions should extend for those who are morally opposed to
same-sex marriage on the basis of their religious beliefs and whether an
exemption should be offered to those opposed on non-religious grounds.
There is general agreement by those engaged
with this debate that any change to the law should accommodate religious
celebrants who would not celebrate gay weddings and as the analysis above indicates,
all four Bills currently before the Parliament make some provision to protect
the right of refusal by religious celebrants.
However for some, protection of religious
freedom goes beyond the rights of religious celebrants to choose who they
should and should not marry. Religious groups raising concerns about same-sex
marriage also seek assurances about:
-
the rights of all celebrants, not just religious
celebrants, to decline gay weddings on the basis of a religious or
conscientious conviction
-
the rights of wedding service providers to decline
request for service from gay couples on the basis of a religious conviction
-
the rights of religious schools to organise their
employment and enrolment policies and their curriculum content based on their
teaching on marriage and
-
the rights of health and welfare agencies to make
decisions and run their affairs according to their religious principles.[106]
In relation to marriage celebrants, one
suggestion has been to extend the exemption that currently applies for
religious celebrants to cover all authorised civil celebrants. As noted above
the Leyonhjelm Bill does this to some extent, providing
an exemption for authorised celebrants based on conscience. However that Bill excludes from the exemption state and territory marriage
registrars, the rationale being that authorised celebrants in the employ of the
state should not be able to discriminate.[107]
As noted above, the Entsch Cross Party Bill rejected the
idea of extending the religious exemption to other authorised celebrants.[108]
The rights of wedding service providers (such
as caterers and florists) have been a subject of concern in overseas
jurisdictions considering same-sex marriage. Of the 13 states in the United
States that legislated to legalise same-sex marriage a number also provided
special exemptions for marriage service providers. For example in the state of
Connecticut the law provides:
...a religious organization, association or society, or any
nonprofit institution or organization operated, supervised or controlled by or
in conjunction with a religious organization, association or society, shall not
be required to provide services, accommodations, advantages, facilities, goods
or privileges to an individual if the request ... is related to the solemnization
of a marriage or celebration of a marriage and such solemnization or
celebration is in violation of their religious beliefs and faith.[109]
Some would say that such an exemption would need to have
limits. For example, if a florist or wedding venue provider wished to exclude
gay marriage business they would need to advertise their services as such.[110]
The trade-off would be that if a person believes marriage is a religious tradition
they would have to accept that ‘the market will be narrowed for them to fulfil
the purity of their conscience, unless they want to fall foul of
anti-discrimination law’.[111]
This may be a marginal issue. Furthermore, providers of wedding services may
already have had to address these types of issues in the past when previous
changes in marriage practice may have conflicted with their religious beliefs.
It may be that ‘the market will work itself out’ with the likelihood of
conflict over this issue being fairly remote.
In relation to the concern regarding the
rights of religious institutions and the possibility that education
institutions could be forced to teach and recruit in conflict with their views
about marriage, it may be that these issues are already addressed. There are
already some protections available which operate to protect their religious
freedoms with regard to teachings on sex and sexual relationships which would
also encompass teachings about marriage. For example at federal level the Sex
Discrimination Act 1984 provides that, in general, prohibitions
notwithstanding, it is not unlawful for an education institution that is
conducted in accordance with the doctrines, tenets, beliefs or teachings of a
particular religion or creed to discriminate against another person ‘on the ground
of the other person’s marital status or pregnancy in connection with the
provision of education or training if the discrimination occurs ‘in good faith
in order to avoid injury to the religious susceptibilities of adherents of that
religion or creed’.[112]
Similarly, at state and territory level there
are various exceptions provided in anti-discrimination laws that provide
exemptions for religious educational institutions, although these do vary from
state to state.[113]
It would appear that religious beliefs concerning the meaning of marriage could
be encompassed by some of these exemptions in the same way that beliefs about
de-facto heterosexual and same-sex relationships are already protected.
Australian Human Rights Commissioner Tim
Wilson has contributed to this debate. He supports civil same-sex marriage but
argues the human right of religious freedom is equally important.[114] Quoting former Prime
Minister John Gorton debating the introduction of the Marriage Act
in 1961 the Commissioner states ‘marriage, of course, can mean a number of
things ... it can mean a religious ceremony; it can mean a civil ceremony; and it
can mean a form of living together. The Commissioner continues:
So long as we pardon the pun, marry all these traditions in
one institution there will be angst about the nature of the law. If the law
excludes same-sex couples, there will be injustice. If people of faith are
forced to act against their conscience, their human rights will also be
breached.[115]
Commissioner Wilson’s solution would be to
separate the civil and religious traditions of marriage but treat them equally
in law. The Marriage Act would recognise civil marriages. A civil
marriage would be defined as a union between two people voluntarily entered
into for life and could be solemnised by a licensed civil celebrant. The Act
would also recognise religious marriages in different religious traditions in a
different section of the text.[116]
There are international examples where this
has occurred, in particular the United Kingdom and South Africa, although
arguably, the circumstances in those countries differ to the Australian
setting. In the case of the United Kingdom, the new law had to take account of
the established Church of England with its own Canon Law regarding marriage.[117] In the case of South
Africa, the two-law response was a compromise that had to be found quickly to
satisfy a twelve-month time limit imposed by the Supreme Court. It has been
suggested it was an inelegant and imperfect solution but revolutionary for its
time and place.[118]
Marriage equality campaigner Rodney Croome is
critical of both the Wilson proposal and any suggestion that same-sex marriage
would be an assault on religious freedom.[119]
I have no doubt Tim Wilson is sincere in his desire to find a
path forward on marriage equality, but talking up the need to protect religious
freedoms when they are not actually under attack opens a Pandora’s box.
It feeds the narrative of opponents of marriage equality that
the reform should be opposed because of a plethora of so called “unintended
consequences”, when there is no real basis for these fears at all.
It jeopardises bipartisan support for marriage equality
legislation, given strong Labor, Green and crossbench support for the
principles of antidiscrimination. It provides those conservatives who want to
delay marriage equality with just the excuse they need: there are serious
consequences to this reform that require the kind of careful consideration and
detailed legislative drafting that will take many months.[120]
As the Paper has observed, Australia has achieved a high
degree of equality between the treatment of same-sex and heterosexual
relationships with marriage remaining the one significant area of difference.
For some, it is important to take time to ponder and consider the full
implications of changing the meaning of this long established and important
institution. For others, including those who live with the memories and scars
of the criminalisation and prejudice endured by homosexuals in the past, it is
important to move swiftly to remove this last remaining area of difference.
Overseas experience would suggest that a long and protracted discussion about
the meaning of marriage, leading up to a popular vote some 18 months away, is
likely to bring a passionate, robust and even strident or divisive debate
within the Australian community.
To date, 21 countries allow same-sex marriage. These include
Canada, South Africa, Argentina, the United States, Belgium, Denmark, France,
Iceland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, the United
Kingdom (excluding Northern Ireland), Brazil, Argentina and Uruguay. Two
countries, Finland and Slovenia have legislation allowing same-sex marriage
which is yet to come into force. In Ireland, which recently had a referendum
supporting same-sex marriage, legislation is yet to be introduced and passed by
the Parliament.
This paper is selective and focuses on same-sex marriage
legislation that has been introduced in countries with a similar common law
tradition to Australia—namely Canada, South Africa, the United States, the
United Kingdom and New Zealand although it is also acknowledged that some of these
countries have a different constitutional framework that includes an entrenched
charters of rights. The paper also contains information on developments in
France. While France’s legal system is based on a civil code rather than common
law, the paper covers that jurisdiction due to recent interest by some
Australian politicians who have suggested the French model may be an
appropriate model for Australia to follow.[121]
The legislation that permits same-sex marriages in Canada is
the Civil Marriage Act 2005 (CAN) introduced into Parliament on 1
February 2005 and assented to on 20 July 2005.[122]
Some Canadian provinces and territories had allowed same-sex marriages to take
place from as early as 2001, however these marriages were said to exist in an
‘interim legal capacity’ given that the federal Canadian Government had not yet
enacted legislation for same-sex marriage.[123]
Prior to enactment of the Civil Marriage Act, the
federal Government referred a number of questions relating to the legislation
to the Supreme Court of Canada. These questions concerned the legislative
authority of the federal Parliament to make such a law and to its consistency
with the Canadian Charter of Rights and Freedoms (Charter). In
response, the Court confirmed that the federal Canadian Government had exclusive
authority to amend the definition of marriage so that it included same-sex
marriage. In addition to this, the Supreme Court noted that the right to
freedom of religion protected under the Charter afforded religious
institutions the right to refuse to perform same-sex marriages if they felt such
marriages conflicted with their religious beliefs.[124]
In its preamble, the Civil Marriage Act states that
it is only by allowing same-sex couples to equally access the institution of
marriage that their rights to equality without discrimination can be respected.
It also acknowledges that the availability of civil unions, instead of marriage,
does not offer same-sex couples the equality they are entitled to.
Under section 2 of the Civil Marriage Act, marriage,
for civil purposes, is defined as:
...the lawful union of two persons to the exclusion of all
others.
Section 4 provides further clarity stating:
For greater certainty, a marriage is not void or voidable by
reason only that the spouses are of the same sex.
The Law Council of Australia, in a submission to the 2012 Committee
inquiry into the same-sex Bills had recommended that the Canadian definition
was an appropriate model for Australia’s Marriage Act, noting the
definition is simple and gender-neutral, broad and inclusive and at the same
time, ‘the definition respects the common law understanding of marriage as
being a monogamous union.’[125]
Freedom of Religion
The Civil Marriage Act explicitly provides for the freedom of religion for churches and
religious groups. Under the Act it is recognized that officials of religious
groups are free to refuse to perform marriages that are not in accordance with
the religious views of their respective faiths. Section 3 states:
It is recognized that officials of religious
groups are free to refuse to perform marriages that are not in accordance with
their religious beliefs.
Section 3.1 provides further protection based on freedom of
conscience and religion stating:
For greater certainty, no person or
organization shall be deprived of any benefit, or be subject to any obligation
or sanction, under any law of the Parliament of Canada solely by reason of
their exercise, in respect of marriage between persons of the same sex, of the
freedom of conscience and religion guaranteed under the Canadian Charter of
Rights and Freedoms or the expression of their beliefs in respect of
marriage as the union of a man and woman to the exclusion of all others based
on that guaranteed freedom.
In relation to protection of religious groups, it is of note
that section 3 is similar to section 47 of the Australian Marriage Act (Cth)
in that it provides officials of religious groups the discretion to refuse to
perform marriages that are not in accordance with their religious beliefs. The
Canadian Act contains
an additional protection in section 3.1, which effectively acknowledges the
rights of religious officials to freedom of religion and freedom of conscience
if they choose not to perform same-sex marriages. In contrast, the Marriage
Act (Cth) does not explicitly safeguard any particular rights of authorised
celebrants who refuse to perform marriages. The Law Council has suggested that
such a protection could be considered for inclusion in the Marriage Act (Cth).[126]
Soon after the enactment of the Civil Marriage Act
(CAN) the focus in Canada shifted back to the provincial level, with some
marriage commissioners in Saskatchewan and other parts of the country refusing
to solemnize same-sex marriages on religious grounds.[127]
Further to this, In the Matter of Marriage Commissioners Appointed Under the
Marriage Act 1995[128] the Court of Appeal for Saskatchewan held that that a marriage
commissioner‘s refusal to solemnize same-sex marriage on the basis of religious
beliefs is unlawful.[129]
The Court concluded that the proposed amendments to the Saskatchewan
Marriage Act 1995 (that is the amendments that would have allowed an
exemption for marriage commissioners) would be contrary to section 15(1) of the
Canadian Charter of Rights and Freedoms and, if enacted, ‘would violate
the equality rights of gay and lesbian individuals’.[130]
Crucially, while acknowledging religious freedoms afforded
under s 2(a) of the Canadian Charter of Rights and Freedom, the Court
said that marriage commissioners
... do not act as private citizens when they discharge their official
duties ... they serve as agents of the province‘. The Court added, ‘a system that
would make marriage services available according to the personal religious
beliefs of commissioners is highly problematic’ ...[131]
As such, the Court concluded that the positive effects of
the amendments did not outweigh their deleterious effects and did not curtail
equality rights in a way that was justifiable:
The Supreme Court has repeatedly confirmed that freedom of
religion is not absolute and that, in appropriate cases, it is subject to
limitation. This is clearly one of those situations where religious freedom
must yield to the larger public interest.[132]
Same-sex marriages in South Africa are permitted under the Civil Union Act
2006 (SOU),[133]
which received assent on 29 November 2006. Marriages in South Africa are
legislated for under two different Acts. The Marriage Act 1961
(SOU)[134]
applies to marriages between members of the opposite-sex. The Civil Union Act
applies to both same-sex marriages and marriages between opposite-sex couples.
The case of Minister of Home Affairs v Fourie was the
impetus for the introduction of legislation permitting same-sex marriages in South
Africa.[135]
It involved a request by a lesbian couple to have their union recognised
and recorded by the South African Government as a valid marriage. The couple
argued that the common law definition of marriage and the Marriage Act (SOU)
excluded same-sex couples and therefore discriminated against them on the basis
of their sexual orientation. They argued that this discrimination breached
their Constitutional rights to equality and dignity.[136]
In a unanimous decision, the Constitutional Court held that,
to the extent that the common-law definition of marriage and the Marriage
Act (SOU) excluded same-sex couples from marriage, they were unfairly
discriminatory. Accordingly, they were unconstitutional and invalid.[137]
The Court determined that the remedy should be the issuing
of a declaration of inconsistency, which was to be suspended for 12 months to
give Parliament time to address the unconstitutional exclusion of same-sex
couples. The Parliament responded to the declaration of inconsistency by
enacting the Civil Union Act (SOU) rather than amending the traditional Marriage
Act (SOU).[138]
The Civil Union Act (SOU) reiterates the rights that
are protected by the Constitution of the Republic of South Africa such as the right
to equality before the law; the right to equal protection and benefit of the
law; the right to freedom of conscience, religion, thought, belief and opinion;
and protection from unfair discrimination on behalf of the state on a number of
grounds including gender, sex, and sexual orientation.[139]
‘Marriage’ is not explicitly defined in the Civil Union
Act (SOU). Instead, ‘civil union’ is defined to mean:
...the voluntary union of two persons who are both 18 years of
age or older, which is solemnised and registered by way of either a marriage or
a civil partnership, in accordance with the procedures prescribed in this Act
to the exclusion, while it lasts, of all others.[140]
Same-sex couples who wish to marry under the Civil Union
Act (SOU) are able to choose whether they would like their union to be
registered as a marriage or a civil partnership. Regardless of the union that
is selected, the legal rights that attach to marriage under the Marriage Act
(SOU) also attach to unions under the Civil Union Act (SOU). This is
explicitly stated in section 13 of the Civil Union Act (SOU).[141]
The Act also prescribes the formal requirements for entering
into such a civil union marriage and in many ways mirrors the provision of the Marriage
Act (SOU), which was not repealed or amended and remained open
exclusively to facilitate marriage by heterosexual couples who chose not to get
married in terms of the new Act.[142]
The Civil Union Act (SOU) also contains a provision
which allows a marriage officer to object to solemnising a same-sex civil partnership
or marriage on the grounds of conscience, religion and belief.[143]
The Law Council in an earlier submission suggested that the
South African Civil Union Act could be considered by the Committee in
addition to the Canadian Civil Union Act as possible models for same-sex
marriage legislation in Australia.[144]
De Vos argues that the Civil Union Act (SOU) is in
many ways an inelegant and imperfect solution and has created technical
anomalies in relation to the rules regarding who can perform marriages under
the traditional Marriage Act (SOU) and who can perform marriages under
the Civil Union Act (SOU).[145]
De Vos concludes:
In many ways the compromise reached by Parliament – by
adopting a separate Civil Union Act that nevertheless extends full marriage
rights to all qualifying same-sex and different sex couples – is an inelegant
one. It has unnecessarily complicated South Africa’s family law regime by
providing heterosexual couples with a choice to marry under the old or the new
Act while providing same-sex couples only with the option of entering into a
marriage or a civil partnership under the Civil Union Act.
...
At the same time it might be argued that the compromise
reached by a democratically elected Parliament bestows the kind of legitimacy
on same-sex relationships that would have been unthinkable only ten short years
ago. Given the fact that South Africa is not a developed country and given,
moreover, that attitudes towards same-sex desire amongst ordinary South
Africans can hardly be described as enlightened, the adoption of legislation
that now allows same-sex couples the choice of entering into a marriage seems
little short of revolutionary.[146]
Legislation permitting same-sex marriage in England and
Wales (the Marriage (Same Sex Couples) Act 2013)
commenced on 29 March 2014 and in Scotland (the Marriage
and Civil Partnership (Scotland) Act 2014) commenced on 16 December
2014.
This paper considers only the Marriage (Same Sex Couples)
Act (UK).[147]
The Marriage (Same Sex Couples) Act (UK) (or the ‘new
Act’) includes provision amongst other things for:
-
civil marriage of same-sex couples
-
religious marriage of same-sex couples, where the religious
organisation wishes to conduct such marriages, that is where the organisation
has ‘opted in’
-
protection for religious bodies and individuals who do not wish
to conduct marriage ceremonies for same-sex couples
-
exclusion of the Church of England and the Church of Wales from
performing same-sex marriages
-
conversion of civil partnerships to marriage and
-
enabling transsexual people to change their legal gender without
necessarily having to end their existing marriage.
The Marriage Act 1949 (UK) (which
remains in operation) does not define marriage as between a man and a woman,
but sets out the procedure and premises where a marriage may take place.[148]
The new Act therefore does not define marriage but simply states:
‘Marriage of same sex couples is lawful’.
Religious protections
Clergy of the Church of England or Church in Wales are not
permitted to solemnise marriage of same-sex couples according to their rites.
The new Act provides specifically that Canon law of the Church of England is
not contrary to the general law which enables same-sex couples to marry, by
virtue of providing only for marriage of opposite sex couples (as Canon B30
does).[149]
Same-sex couples do not have the right to have their marriages solemnized by
clergy of the Church of England or Church in Wales.
Other denominations and religions
Same-sex couples may marry with a religious ceremony
according to the rites of another religious organisation only if that
organisation has ‘opted-in’ to marry same-sex couples and their building has
been registered for the purpose of marriage of same-sex couples.
The Marriage (Same Sex Couples) Act (UK) provides:
1 Extension of marriage to same sex couplesE+W
- This
sectionnoteType=Explanatory Notes has no associated
(1)Marriage of same sex couples is lawful.
...
(3) No Canon of the Church of England is contrary to section
3 of the Submission of the Clergy Act 1533 (which provides that no Canons shall
be contrary to the Royal Prerogative or the customs, laws or statutes of this realm)
by virtue of its making provision about marriage being the union of one man
with one woman.
(4) Any duty of a member of the clergy to solemnize marriages
(and any corresponding right of persons to have their marriages solemnized by
members of the clergy) is not extended by this Act to marriages of same sex
couples.
2 Marriage according to religious rites: no compulsion to
solemnize etc
(1) A person may not be compelled by any means (including by
the enforcement of a contract or a statutory or other legal requirement) to—
(a) undertake an opt-in activity,[150]
or
(b) refrain from undertaking an opt-out activity.
(2) A person may not be compelled by any means (including by
the enforcement of a contract or a statutory or other legal requirement)—
(a) to conduct a relevant
marriage,
(b) to be present at, carry out,
or otherwise participate in, a relevant marriage, or
(c) to consent to a relevant
marriage being conducted, where the reason for the person not doing that thing
is that the relevant marriage concerns a same sex couple.
The Marriage (Definition of Marriage) Amendment Act
2013 (NZ) received assent on 19 April 2013 and
came into force on 19 August 2013.[151]
It amends the Marriage Act 1955 (NZ)[152]
with the effect of enabling couples to marry regardless of their gender or
sexual orientation. The new statutory definition of marriage in the Marriage
Act defines marriage as ‘the union of 2 people, regardless of their sex,
sexual orientation, or gender identity.’
The Marriage Act (NZ) had previously authorised but
did not oblige any marriage celebrant to solemnise a marriage. This is further
reinforced by the new law which states that no religious or organisational
celebrant is obliged to solemnise a marriage that would contravene religious
beliefs or philosophical or humanitarian convictions of a religious body or
approved organisation. Relevantly section 29 provides:
(1) A marriage licence shall authorise but not oblige any
marriage celebrant to solemnise the marriage to which it relates.
(2) Without limiting the generality of subsection (1), no
celebrant who is a minister of religion recognised by a religious body
enumerated in Schedule 1, and no celebrant who is a person nominated to
solemnise marriages by an approved organisation, is obliged to solemnise a
marriage if solemnising that marriage would contravene the religious beliefs of
the religious body or the religious beliefs or philosophical or humanitarian
convictions of the approved organisation.
New Zealand academic Rex Ahdar argues that the exemption
for celebrants is not worded widely enough and would like the exemption to
cover independent marriage celebrants.[153]
First, marriage celebrants who are "independent",
that is, not members of any of the listed religious bodies, or any approved
organisation, are not protected. Yet some 45 percent of marriages are conducted
by these independent celebrants (23 percent are conducted by registrars at a
state registry office and 32 percent by a church or approved organisation
marriage celebrant). Independent marriage celebrants are persons that
"will conscientiously perform the duties of a marriage celebrant" and
"it is in the interests of the public generally, or of a particular
community (whether defined by geography, interest, belief, or some other factor)
"that they be so appointed (Marriage Act 1955, s 11 (3) (a) (b)).
Such persons may well have beliefs that generate a
conscientious objection to SSM. It was wrong then, for the Ministry of Justice
to recommend that independent celebrants be excluded from the benefit of the
conscientious objection exemption in s 29(2). The Ministry's argument was that,
in contrast to ministers of religion, independent celebrants (and registrars)
are appointed by the government "to perform a public function, not to
promote their own religious or personal beliefs”.[154]
Ahdar also cites the example of the Anglican Church where it
may eventually be decided that solemnisation of same-sex marriage is allowed.
If that happened, Ahbar argues that Anglican clergy who dissent from that
official line ought to be protected.
The right of religious freedom protects all who practice that
faith, not just for the "orthodox" or those who happen to abide by
the views of the majority of co-religionists or the pronouncements of the
ecclesiastical or ruling elite. Appellate courts have acknowledged this (see eg
R (Williamson) v Secretary of State
for Education and Employment [2005] UKHL 15; [2005] 2 AC 246; [2005] 2 All
ER 1 at [22]). In light of this I proposed an amendment to s 29(2):
Without limiting the generality of subsection (1), no
celebrant who is a minister of religion recognised by a religious body
enumerated in Schedule 1, and no celebrant who is a person nominated to
solemnize marriages by an approved organisation, is obliged to solemnize a
marriage if solemnizing that marriage would contravene the religious beliefs of
that celebrant.
But this change was not adopted. So, for now, the position of
conservative church ministers within the mainstream Protestant denominations
remains precarious.[155]
Under the US
Constitution, states have the marriage law-making power.
During the period from 2003 to 2015, 13 states
and the District of Columbia legislated to permit same-sex marriage with all
providing some form of religious exemption in regard to marriage. In that
period same-sex marriage was also legalised in a number of other states,
brought about through court decisions including state based challenges to bans
against same-sex marriage.[156]
The situation in the United States changed significantly and
dramatically when on 26 June 2015, the US Supreme Court handed
down its decision in Obergefell v Hodges,[157] deciding by the narrow majority of 5-4 that same-sex couples had a
constitutional right to marry, and that the right is protected under the 14th
Amendment.
The case, Obergefell v Hodges, brought together 14 same-sex
couples and two gay men whose partners were now deceased who sought to
challenge the state bans on same-sex marriage in Michigan, Kentucky, Tennessee,
and Ohio. The appellants had been successful in challenging the bans in their
respective District Courts but those decisions were reversed at the Sixth
Circuit. On appeal, the majority of justices of the US Supreme Court quashed
the decision of the Sixth Circuit. The Court ruled that the
denial of marriage licenses to same-sex couples and the refusal to recognize
those marriages performed in other jurisdictions violates the Due Process and
the Equal Protection guarantees of the Fourteenth Amendment.
The Fourteenth Amendment relevantly states:
Section 1. All persons born or naturalized in the
United States and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
The decision has generated significant ‘international
celebration, condemnation, and critique’.[158]
In Australia, it was a major impetus for the renewed debate on same-sex
marriage with advocates announcing an intention to bring further legislation
before the Parliament to bring Australia in line with overseas developments.[159]
The Court’s decision and judicial reasoning
has been questioned in legal circles, Father Frank Brennan observing:
There is much about the judicial reasoning in
the case that would raise eyebrows among lawyers not used to the judicial
activism of the liberal majority of the US Supreme Court which has long viewed
the due process and equal protection clauses as a vehicle for legislating their
preferred view on contested political and social issues.[160]
Other commentators suggest the outcome is not surprising
noting that Obergefell is a part of a judicial path that had helped
facilitate the recognition of gay and lesbian civil rights in the United
States.[161]
However as Raj and others have also noted, what is striking about the judgment
is the mix of sentimentality and optimism that underscores the constitutional analysis.
Much of the majority's opinion, delivered by Justice Anthony Kennedy, evokes
visions of liberty, equality, and dignity.[162]
In delivering the opinion of the court, Justice Kennedy points to the ‘transcendent
importance of marriage’, his concluding and somewhat poetic statement is now
often quoted:
No union is more profound than marriage, for it embodies the
highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a
marital union, two people become something greater than once they were. As some
of the petitioners in these cases demonstrate, marriage embodies a love that
may endure even past death. It would misunderstand these men and women to say
they disrespect the idea of marriage. Their plea is that they do respect it,
respect it so deeply that they seek to find its fulfillment for themselves.
Their hope is not to be condemned to live in loneliness, excluded from one of
civilization's oldest institutions. They ask for equal dignity in the eyes of
the law. The Constitution grants them that right.[163]
In a passionate dissent, Chief Justice John Roberts critiques
the majority for imposing their ‘will’ upon the Constitution, ignoring
precedent, and taking the issue away from legislatures or voters to decide on:
But this court is not a legislature. Whether
same-sex marriage is a good idea should be of no concern to us. Under the
Constitution, judges have power to say what the law is, not what it should be.[164]
Similarly Justice Scalia also in dissent
observed:
'Until the courts put a stop to it, public
debate over same-sex marriage displayed American democracy at its best.
Individuals on both sides of the issue passionately, but respectfully,
attempted to persuade their fellow citizens to accept their views.[165]
Another of the four dissenters, Justice Alito
highlighted the perils of a broad-brush judicial determination
constitutionalising the right of same-sex marriage and short-circuiting the
more nuanced debates which could go on in parliaments. He highlighted that the
decision will 'be used to vilify Americans who are unwilling to assent to the
new orthodoxy,’ pointing out that the majority 'compares traditional marriage
laws to laws that denied equal treatment for African-Americans and women’.[166]
Further analysis of this case is beyond the
scope of this paper, other than to say that commentators have seen flaws in the
legal reasoning of both the majority and the dissenting judgments. The
majority, for not focusing on legal issues and instead delivering a ‘moving and
elegant ‘essay on the joys and virtues of marriage, and the pain that gay
couples and their children face when they cannot marry. The dissenters, for
both studiously ignoring recent relevant precedents and for the more serious
failure of not addressing the question of whether states can refuse to
recognise same-sex marriages that are valid where they are celebrated. To
commentator Richard Lempert the failure to address the marriage recognition
issue was bizarre:
Even if states need not allow same sex couples
to marry, which is the dissenters’ position, it does not follow that they can
refuse to acknowledge the legitimacy of marriages validly celebrated elsewhere.
The issue poses special problems for the dissenters. The argument at the core
of most dissents is that the Court’s majority has unwisely and inappropriately
taken upon itself to decide a question that is for the people to resolve
through normal democratic processes. Justice Scalia was perhaps the bluntest in
making this point. He opened his dissent by saying that he wrote separately “to
call attention to the Court’s threat to American democracy.” The same theme was
sounded in each of the other dissents, sometimes in language almost as strident
as Scalia’s.
...
They should either have labeled their opinions
“dissenting in part” and agreed with the majority’s holding on the recognition
issue, or they should have indicated and justified their disagreement with both
issues the case posed. But addressing the recognition issue would, on the one
hand, have meant agreeing to require states to recognize some same sex
marriages, or, on the other hand, acknowledging that they were choosing between
the rules of two state electorates with little more to justify their choice
than their personal preferences. I expect the dissenters found the first option
unacceptable because they wanted no part in the legalization of same sex
marriage, while the second option would have meant that the democratic high
road they claimed to be defending was no longer available. They could escape
the dilemma only by ignoring their obligation to speak to an issue they had
agreed to review. This is the path they followed. It allowed them to wage war
with the majority’s opinion on their own terms[167]
Legal academic Father Frank Brennan suggests
that it is regrettable that the Supreme Court took it upon itself to discover a
definitive answer in the silent Constitution on this contested social
question of same-sex marriage, because ‘there can be no doubt that the
democratic process was taking US society in only one direction on the issue’:
The court, by intervening and deciding the
issue unilaterally, has reduced the prospects of community acceptance and
community compromise about the freedom of religious practice of those who
cannot embrace same-sex marriage for religious reasons. Alito is right when he
assumes 'that those who cling to old beliefs will be able to whisper their
thoughts in the recesses of their homes, but if they repeat those views in
public, they will risk being labeled as bigots and treated as such by
governments, employers, and schools.'
There will be years of litigation now about the
right of religious bodies to restrict services only to couples who marry in
accordance with the institution's religious creed. It will all be nasty and
hard fought.[168]
Raj questions the majority reasoning on other grounds
suggesting that marriage has not necessarily been ‘the destiny’ or final
outcome for gay rights as the Court suggested and that the high elevation of
marriage raises broader questions about relationship and sexual equality:
Ultimately, marriage reform generates claims for love,
equality, and dignity. Such principles are powerful and important to protect.
However, as marriage equality jurisprudence reflects on the evolving regulation
of marriage, and the push for social acceptance more broadly, we should also be
wary of claims that inadvertently exclude others. No one should have to get
married in order to have their relationship respected or to access support from
the state. Love and family find expression in disparate ways.[169]
Raj thoughtfully concludes:
It would also be parochial to assume that marriage equality
will eliminate the violence, harassment, and discrimination that sexual and
gender minorities are subjected to on a daily basis.
So, feel free to wash your Facebook profile pictures in
rainbow filters and campaign for marriage equality, but remember that the push
for social justice goes well beyond that.[170]
Same-sex marriage has been legal in France since 2013. The legislation allowing same sex marriage was marked by fierce debate
in parliament, legal challenges and massive street protests before it became
law on 17 May 2013.[171]
The new law provides
that marriage is contracted by two persons of
different sex or the same-sex who have reached the age of 18. Adoption by
same-sex couples is also recognised under these laws in France.[172]
As part of its official separation of church and state,
French law recognises only the civil marriage. This must be performed by a
French Civil Authority which includes the mayor or his legally authorised
replacement, the deputy mayor or a city councillor.
In France, religious marriage ceremonies are optional, have no legal
status and may only be held after the civil ceremony has taken place (which
can, but need not be, on the same day). For this reason, the new same-sex
marriage law affects only civil marriages. It does not make provision for
accommodating religious celebrants or protecting religious freedoms.
Furthermore there is no provision for marriage registrars to opt out of
conducting same-sex marriages on the ground that it goes against their
religious or moral belief.
Following passage of the legislation introducing same-sex
marriage, a challenge was brought before the Conseil Constitutionnel (constitutional
court) by a group of mayors opposed to same-sex marriage. They argued that the law should have included
a ‘freedom of conscience’ clause, giving marriage officials the right not to
carry out same-sex marriages if it conflicts with their personal religious or
moral beliefs. Their claim was that the lack of such a clause in the law is
contrary to the French constitution.
The Constitutional Court in its judgment
rejected this claim and held that it was not unconstitutional for public
officials to be required to officiate at same-sex marriages regardless of any
personal objections.
The Court noted that the government did not
include an opt-out clause within the legislation ‘to assure the law is applied
by its agents and to guarantee the proper functioning and neutrality of public
service,’ ‘Freedom of conscience is not violated by officiating at weddings,’
the Court said.[173]
Since 1999 France has also permitted civil
unions or civil solidarity pacts (pacte civil de solidarité, or PACS). This is
a contractual form of civil union between two adults (same-sex or opposite-sex)
for organising their joint life. It brings rights and responsibilities, but
less so than marriage.[174] Initially introduced to provide legal recognition for same-sex
relationships, PACS also became popular with heterosexual couples.
Apart from marriage, legal recognition of relationships can
be categorised in three ways:
-
Presumptive de facto recognition
-
Relationship registration and
-
Civil unions.
In a process begun in the 1980s, de facto relationships have
gradually been afforded similar rights to married relationships under
Australian law.[175]
Initially these rights were afforded to heterosexual relationships, however
over the past 10 years this recognition has moved further, with Australia
witnessing an incremental blurring of the distinction between the legal rights
of same-sex and opposite-sex couples living together in a genuine de facto
relationship.[176]
These changes were initially evident on a state and
territory level, where sustained reform programs were embarked upon.[177]
New South Wales was the first state to implement comprehensive legislative
reforms removing discrimination of same-sex couples. The Property
(Relationships) Legislation Amendment Act 1999 (NSW) amended around 20
pieces of legislation on a range of matters including inheritance, accident
compensation, legal aid and stamp duty. Where a definition of de facto
relationship in existing law failed to include same-sex couples, these
definitions were amended or replaced so that the law would no longer apply
differently to couples of opposite sex and same sex. As a result of these
reforms in NSW and similar enactments in all other states and territories,
same-sex couples achieved equality with heterosexual couples in many areas of
the law.[178]
In 2006, the Australian Human Rights Commission (formerly
HREOC), released a report that identified 58 federal Acts that discriminated
against same-sex couples.[179]
The Federal Government, acting on this report, introduced the 2008 reforms
comprising: the Family Law Amendment (De Facto Financial Matters and Other
Measures) Act 2008 (Cth) which provides for same-sex and
heterosexual couples living in a de facto relationship to have their property
and maintenance claims heard under the Family Law Act 1975 (Cth)[180];
The Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General
Law Reform) Act 2008 (Cth) which removes discrimination against same-sex
couples from a raft of Commonwealth legislation, including veteran affairs,
social security and income tax; and the Same-Sex Relationships (Equal
Treatment Commonwealth Laws-Superannuation) Act 2008 (Cth) which allows superannuation
trustees to make same-sex couples and their children eligible for superannuation
reversionary benefits.
In order to benefit from these law reforms, same-sex couples
do not have to formalise their relationships. If a couple can satisfy ‘fairly
nebulous, but what some might consider intrusive criteria, they will be deemed
to be living in a genuine de facto relationship’.[181]
At federal level the essence of the definition of a de facto
relationship is ‘a couple living together on a genuine domestic basis’ who are
not legally married or related by family. This definition is substantially the
same in state legislation. Both federal and state definitions contain an
inclusive list of criteria to be used in determining whether a recognised
relationship exists. These factors are:
-
the duration of the relationship
-
the nature and extent of their common residence
-
whether a sexual relationship exists
-
the degree of financial dependence or interdependence, and any
arrangements for financial support, between them
-
the ownership, use and acquisition of their property
-
the degree of mutual commitment to a shared life
-
the care and support of children
-
the reputation and public aspects of the relationship.
No particular finding is required in relation to any one of
these circumstances in deciding whether the persons have a de facto
relationship. The decision-maker therefore has a significant discretion.[182]
At federal level, a de facto relationship can also exist
between two people where one partner is legally married to someone else, or is
in a registered relationship with someone else or is in another de-facto
relationship.[183]
Some Australian states and territories have supplemented
their de facto relationship laws with the introduction of relationship
registers. Registers provide advantages over presumptive relationship
recognition in that entering a ‘registered relationship’ provides conclusive
proof of the existence of the relationship, thereby gaining all of the rights
afforded to de facto couples under state and federal law without having to
prove any further factual evidence of the relationship.
State relationship registration schemes allowing for
same-sex and heterosexual relationship recognition currently exist in Tasmania,
Victoria, New South Wales, the Australian Capital Territory and Queensland.
The detail of these schemes varies. For example the
Victorian and Tasmanian registration schemes allow both for registration of
domestic relationships and for caring relationships to be recognised.[184]
The ACT, Tasmania and New South Wales schemes each recognise the other’s state
registered schemes, however Victoria does not. All registers allow for the
recognition of a registered relationship to be revoked. Revocation, while
similar to divorce, is arguably easier to obtain.[185]
At federal level registration of a relationship at state or
territory level is also conclusive proof of the existence of a de facto
relationship.
Entering into a ‘registered relationship’ provides
conclusive proof of the existence of the relationship, thereby gaining all of
the rights afforded to de facto couples under state and federal law
without having to prove any further factual evidence of the relationship.[186]
For most, if not all, practical and legal purposes,
registration can be equivalent to a civil union, the main difference being that
civil unions tend to permit a greater level of formal ceremonial and symbolic
recognition.[187]
The ACT’s history of relationship register and civil union
legislation has been more complicated and controversial than that of the
states, partly because of constitutional arrangements between the Commonwealth
and territories. In its first attempt to introduce legal recognition of same
sex relationships, the Civil Unions Act 2006 (ACT) allowed two people to
enter into a civil partnership by making a declaration to each other in the
presence of a celebrant and one other witness. That legislation was repealed
through disallowance by the then Howard Government and in response, the ACT
Government introduced new legislation, the Civil Partnerships Act 2008 (ACT).
The 2008 Act removed provisions that allowed people to solemnise by a ceremony,
rather than merely register their relationship as a couple. The Civil
Partnerships Act 2008 (ACT) was repealed by the Civil Unions Act 2012 (ACT)[188]
which essentially re-instated the civil ceremony aspects of the 2006 scheme
which had been previously disallowed. The Civil
Unions Act 2012 (ACT) is still
in force in the Australian Capital Territory.
The Queensland Civil Partnerships Act 2011, when
first enacted also provided for civil partnership declarations as well as
registration. Declarations were required to be performed in front of a civil
partnership notary and they were to be available to both same-sex and
heterosexual couples. However in 2012 the then recently elected Campbell Newman
Government made amendments through the Civil Partnerships and Other
Legislation Amendment Act 2012 (Qld) with the effect that same-sex
couples were no longer able to participate in a state sanctioned declaration
ceremony and the term civil partnership was changed to registered relationship.
The Act was renamed the Relationships Act 2011 (Qld).
The literature suggests that Australian law has achieved substantial
legal equality between all couples, married or unmarried, opposite sex and
same-sex.[189]
Nonetheless there are still some areas in which same-sex couples are treated
differently. Some of these are described briefly below.
In most Australian jurisdictions adoption rights continue to
be an area where same-sex couples are treated differently to opposite-sex
couples. Only same-sex couples in New South Wales, the ACT, Tasmania and
Western Australia have access to adoption on an equal footing to heterosexual
couples.[190]
At the federal level same-sex and heterosexual couples now
come under the Family Law Act 1975 (Cth) in regard to division of
property and maintenance. However it is of note that there are additional
thresholds for de facto relationships that do not apply to married
relationships. Under section 90SB of the Family Law Act 1975 (Cth) the
court can make an order in relation to property adjustment and maintenance only
if the unmarried couple have been engaged in the de facto relationship for at
least two years, or where there is a child of the relationship, or where the
relationship is registered under state or territory law, or where a partner
made substantial contributions and the order is necessary to prevent serious
injustice.[191]
In contrast, there is an automatic capacity on marriage to access the courts to
address these matters.
Succession and intestacy laws are state and territory
matters and have been modified to provide equal rights for de facto same-sex
and heterosexual couples. However, arguably de facto couples are required to
face more hurdles than the partners of a marriage. In particular, most states
require that couples who are not married must be together in a de facto
relationship for at least two years before they will be recognised as the
deceased intestate’s partner. Note however that the requirements that the
relationship be of a certain minimum duration, does not apply to registered
partners.[192]
There are also small but not insignificant differences in
relation to wills and in relation to the division of intestate estate between
current de facto partners and a previous husband or wife.[193]
For example in all states, a will is revoked upon marriage, unless the will was
made in contemplation of the marriage. Only Tasmania and the ACT have
equivalent provisions for those who enter into a significant relationship or
civil partnership.[194]
Another difference between marriage and partnership
registration relates to portability with a major drawback of the state and
territory relationship registries being the lack of portability of the
relationship status of registration. The ACT, Tasmania and New South Wales
registers have some portability in that they each recognise other state
registered schemes, however Victoria does not. In contrast, marriage is
recognised anywhere in Australia.[195]
Arguably one of the more significant remaining differences
in the treatment of same-sex couples and married couples relates less to legal
rights and responsibilities and more to the social and symbolic status that attaches
to marriage. Supporters of same-sex marriage argue that relationship
registration offers no equivalent to marriage because it lacks the special
cultural significance, the ceremonial aspects, and the social status of
marriage.[196]
They say that the prohibition of same-sex marriage denies lesbians and gay men
access to this particularly solemn and ceremonial act of expressing commitment
to their life partners.[197]
As one submission to the Senate Committee inquiry into the
Marriage Equality Bill 2009 argued:
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.[198]
[1]. Relationships
Act 2003 (Tas); Relationships Act 2008 (Vic); Relationships Register Act 2010 (NSW);
Relationships Act 2011 Qld); Civil Unions Act 2012 (ACT).
[2]. Further
information on this reforms can be found in the following Bills Digests (the
Bills for which were all enacted): M Neilsen, and K Magarey, Same-sex
Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008,
Bills digest, 20, 2008–09, Parliamentary Library, Canberra, 2008,
accessed on 21 August 2015;
M Neilsen, K Magarey and E Karlsen, Same-Sex
Relationship (Equal Treatment in Commonwealth Laws—General Law Reform) Bill
2008, Bills digest, 44, 2008–09, Parliamentary Library, Canberra,
2008, accessed on 21 August 2015;
Note also that the enactment of the
legislation discussed in
M Neilsen,
Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008,
Bills digest, 9, 2008–09, Parliamentary Library, Canberra, 2008, brought
about equal treatment at Commonwealth level of the breakdown of de facto heterosexual
and same-sex relationships in relation to maintenance and property.
[3]. M
Neilsen, ‘Same-sex
marriage’, Background note, 10 February 2012, Parliamentary Library,
accessed 17 August 2015.
[4]. Marriage Act 1961 (Cth),
accessed 28 August 2015.
[5]. S Maiden,
‘Labor's switch on gays: same-sex marriage nod’. Sunday Herald Sun, 4 December 2011, accessed 17
August 2015.
[6]. See: D McKeown, Chronology of same-sex marriage bills introduced into the federal
parliament: a quick guide, Research paper series,
2014‑15, 29 June 2015, accessed 17 August 2015.
[7]. P
Hartcher, ‘Opinion: Labor transformed, almost’, Canberra
Times, 28 July 2015, accessed 17 August 2015.
[8]. B Shorten
(Leader of the Opposition) Transcript of joint doorstop interview: Canberra: 12 August 2015:
renewable energy; climate change; Tony Abbott and the Liberals stuck in the
past on marriage equality; polls, media release, 12 August 2015, accessed 17 August 2015.
[9]. D
McKeown, op. cit.
[10]. In his 2nd
reading speech on the Stephen Jones Bill referred to above, Malcolm Turnbull
said ‘Were ... a free vote to be permitted I would support legislation which
recognised same-sex couples as being described as in a marriage.’, in : D McKeown, op. cit. See also: D Hurst, ‘Same-sex marriage: disappointment and anger as Coalition party room
rejects free vote’, Guardian (Australia), 11
August 2015, accessed 31 August 2015.
[11]. Some members
of the Government gave interviews indicating they were unhappy with the process
and the outcome. See for example: D Hurst, op. cit. and Crowe, D. ‘Gay
marriage splits Coalition’, The Australian, 12 August 2015, accessed
17 August 2015.
[12]. G
Henderson, ‘Plebiscite
on same-sex marriage is a reasonable compromise’, The Australian
(online edition), 15 August 2015, accessed 17 August
2015.
[13]. T Abbott
(Prime Minister), Transcript of joint doorstop interview: Queanbeyan, NSW: 12 August
2015: visit to Green Army river corridor and urban bushland restoration
project; Australia's 2030 emissions reduction target; same-sex marriage, media release, 12 August 2015,
accessed 17 August 2015.
[14]. ‘Libs warned to toe gay line [Warning to gay rebels]’, Herald Sun, 13 August 2015, accessed 27 August, 2015.
[15]. G Barwick,
’The Commonwealth Marriage Act 1961’, Melbourne University Law Review,
3, 1961–62, p. 277, quoted in O Rundle, ‘An examination of relationship
registration schemes in Australia’, Australian
Journal of Family Law, 25, 2011, p. 126, accessed 23 August 2015.
[16]. J Quick and
R Garran, The Annotated Constitution of the Australian Commonwealth,
1901, quoted in G Griffith, ‘Same-sex
marriage’, Briefing Paper, NSW Parliamentary Library Research
Service, 3/2011, 2011, p. 20, accessed 23 August 2015.
[17]. G Barwick,
op cit., p. 277.
[18]. O Rundle,
op. cit., p. 127.
[19]. Ibid.
[20]. Subsection
5(1).
[21]. G Barwick,
‘Second
reading speech: Marriage Bill 1960’, House of Representatives, Debates,
19 May 1960, p. 2006, accessed 23 August 2015.
[22]. J Gorton, ‘Second
reading speech: Marriage Bill 1961’, Senate, Debates, 18 April 1961, p. 554, accessed
23 August 2015.
[23]. (1866) LR 1
P&D 130 per Lord Penzance who said, ‘marriage, as understood in
Christendom, may for this purpose be defined as the voluntary union for life of
one man and one woman to the exclusion of all others.’ The words, ‘as
understood in Christendom’ are not included in section 46 of the Marriage
Act.
[24]. J Norberry,
Marriage
Legislation Amendment Bill 2004, Bills digest, 155, 2003–04, Parliamentary
Library, Canberra, 2004, p. 2, accessed 23 August 2015.
[25]. Inserted by
the Marriage Amendment Act 2004.
[26]. P Ruddock,
‘Second
reading speech: Marriage Legislation Amendment Bill 2004’, House of
Representatives, Debates, 27 May 2004, p. 29356, accessed 23 August
2015.
[27]. Ibid.
[28]. Ibid.
[29]. In a press
release issued by the then Shadow Attorney-General, Nicola Roxon, quoted in J
Norberry, op cit., p. 11
[30]. P Ruddock,
‘Second
reading speech: Marriage Amendment Bill 2004’, House of Representatives, Debates,
24 June 2004, p. 31459, accessed 23 August 2015.
[31]. G Griffith
op. cit., p. 22.
[32]. Ibid.
[33]. A Nicholson,
‘The
legal regulation of marriage’, Melbourne University Law Review, 29,
2005, p. 557, accessed 23 August 2015.
[34]. Commonwealth
v Australian Capital Territory (2013) 250 CLR 441, [2013] HCA 55, accessed 17
August 2015.
[35]. Frank
Brennan and George Williams, cited in M Neilsen, ‘Same-sex
marriage’, Background note, 10 February 2012, Parliamentary Library, footnote
no. 32, accessed 17 August 2015.
[36]. Inconsistency
between Commonwealth and state laws is governed by section 109 of the Constitution,
which provides that, ‘when a law of a State is inconsistent with a law of the
Commonwealth, the latter shall prevail, and the former shall, to the extent of
the inconsistency, be invalid’. In the case of the Australian Capital
Territory, subsection 28(1) of the Australian Capital
Territory (Self-Government) Act 1988 (Cth) provides that a
provision of an Australian Capital Territory enactment has no effect to the
extent that it is inconsistent with a law of the Commonwealth in force in the
territory but that ‘such a provision shall be taken to be consistent with such
a law to the extent that it is capable of operating concurrently with that law’.
[37]. Same-Sex
Marriage Bill 2012 (Tas); Same-Sex Marriage Bill 2013 (NSW); Marriage Equality
Bill 2012 (Vic); Same Sex Marriage Bill 2013 (SA); Same-Sex Marriage Bill 2013
(WA).
[38]. Marriage Equality (Same
Sex) Act 2013 (ACT) accessed 17 August 2015.
[39]. Note that
this was based on section 28 of the Australian Capital Territory
(Self-Government) Act 1988, not on section 109 of the Constitution.
See footnote 37 above.
[40]. For
example, the United States, South Africa and Canada. See Appendix 1 below.
[41]. Commonwealth
v Australian Capital Territory, op cit., para 57.
[42]. Ibid., para
58.
[43]. Ibid., para
55.
[44]. A Twomey, ‘Same-sex marriage and constitutional
interpretation’, Australian Law Journal,
88(9) September 2014, pp. 613-616, accessed 17 August 2015, S
Chordia, ‘The
High Court, same-sex marriage and federalism’, Alternative Law Journal,
39(2), 2014, accessed 27 August 2015.
[45]. Ibid.
[46]. S McDonald,
‘High
Court on same sex marriage’ Bulletin
(Law Society of South Australia), 36(4), May 2014, p. 24, accessed 17
August 2015.
[47]. S McDonald,
op. cit., p. 22.
[48]. Commonwealth
v Australian Capital Territory, para 16.
[49]. Ibid., para
22.
[50]. A Twomey,
op. cit.
[51]. Commonwealth
v Australian Capital Territory, para 33.
[52]. Ibid.,
paras 35–37.
[53]. A Twomey,
op. cit., para 613 and S Chordia, op. cit.
[54]. Ibid.
[55]. Ibid.
[56]. Ibid., p.
615.
[57]. A Twomey,
op. cit.; A Twomey, ‘Inconsistency between commonwealth and territory laws’, Federal Law Review, 42, 2014, pp. 421–439; G Williams,
‘Same-sex marriage and the Australian states’, Alternative Law Journal, 41(1) 2015, pp. 7–10; P Parkinson and N Aroney, ‘The territory of
marriage : constitutional law, marriage law and family policy in the ACT same
sex marriage case’ Australian Journal of Family Law,
28(2), 2014, pp. 160–190; S Chordia, op. cit., all accessed 17 August 2015.
[58]. Commonwealth
v Australian Capital Territory, para 60, quoted in S McDonald, op. cit., p.
24.
[59]. G Williams, op. cit., p. 8.
[60]. Ibid.
[61]. Note that
there is a further Bill, the Recognition
of Foreign Marriages Bill 2014, introduced by Senator Sarah Hanson Young on
15 April 2014. That Bill amends the Marriage Act 1961
to remove the prohibition on the recognition of same-sex marriages solemnised
in a foreign country. The Bill was referred to the Senate
Legal and Constitutional Affairs Legislation Committee for inquiry and report
by 3 September 2014. The Committee recommended that the Bill not be passed.
[62]. W Entsch, ‘Introductory
speech: Marriage Legislation Amendment Bill 2015’,
House of Representatives, Debates, 17 August 2015, p. 9, accessed 17 August 2015.
[63]. House of Representatives Standing Committee on Social Policy
and Legal Affairs, Inquiry
into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill
2012, March 2012.
[64]. The Hanson-Young
Bill and the Shorten Bill use the word ‘two’; the Leyonhjelm
Bill and Entsch Cross Party Bill use the number ‘2’.
[65]. Law Council
of Australia, Submission to the House Standing Committee on Social Policy and
Legal Affairs, Inquiry into the Marriage Equality Amendment Bill 2012 and
the Marriage Amendment Bill 2012, March 2012, p. 16, accessed 23 August
2015, p. 21.
[66]. For example
prohibited relationships such as sibling marriages, or if either party is under
the age of 16 years (section 88D).
[67]. Marriage
Act (Cth), section 71.
[68]. Item 6,
Schedule 1.
[69]. Item 8,
Schedule 1.
[70]. Gilbert
& Tobin Centre of Public Law, Submission
to the House Standing Committee on Social Policy and Legal Affairs, Inquiry
into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill
2012, March 2012, p. 6, accessed 17 August 2015.
[71]. Explanatory
Memorandum, Marriage Legislation Amendment Bill 2015,
accessed 17 August 2015.
[72]. Ibid.
[73]. Anglican
Church Diocese of Sydney, Submission
to the House Standing Committee on Social Policy and Legal Affairs, Inquiry
into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill
2012, March 2012, p. 7, accessed 17 August 2015.
[74]. Explanatory
Memorandum, Freedom
to Marry Bill 2014, accessed 23 August 2015, p. 2.
[75]. Coalition
of Celebrant Associations Inc., Submission
to the House Standing Committee on Social Policy and Legal Affairs, Inquiry
into the Marriage Equality Amendment Bill 2012 and the Marriage Amendment Bill
2012, March 2012, accessed 17 August 2015.
[76]. Anglican
Church Diocese of Sydney, op. cit.
[77]. Proposed
subsection 39(4) inserted by item 3, Schedule 1 to the Bill.
[78]. Explanatory
Memorandum, Freedom
to Marry Bill 2014.
[79]. Section 100
sets out reasons for refusing to solemnise a marriage.
[80]. Explanatory
Memorandum, Marriage Legislation Amendment Bill 2015.
[81]. Ladel v
London Borough of Islington [2009] EWCA Civ 1357, (concerned with a
registrar of marriages who refused to register same sex partnerships under the Civil
Partnerships Act 2004). The case was unsuccessfully appealed to the ECHR.
[82]. G Griffith,
op. cit., p. 7, accessed 17 August 2015
[83]. In
the Matter of Marriage Commissioners Appointed Under the Marriage Act 1995
paragraph 98, quoted in G Griffith, op. cit. This case is discussed in
Appendix 1.
[84]. Marriage
Act (Cth), section 71.
[85]. Item 10 of
Schedule 1. Section 81 provides that a chaplain may refuse to solemnise a
marriage on certain grounds.
[86]. Proposed
subsection 71(3), inserted by item 10, Schedule 1. The Explanatory Memorandum
states that the requirement of ‘possibility’ recognises that
there may be circumstances where a willing chaplain cannot be arranged (e.g. if
the people involved are in a remote location), as well as circumstances in
which other provisions would prevent the marriage being solemnised.
[87]. See p. 22
below.
[88]. Explanatory
Memorandum, Marriage Legislation Amendment Bill 2015,
accessed 23 August 2015.
[89]. Law Council
of Australia, op. cit., p. 16.
[90]. Amendment
to section 46 of the Marriage Act. Note Ministers of religion are exempted from
saying these words if the Attorney-General is satisfied that the form of the
religious ceremony sufficiently states the nature and obligations of marriage.
[91]. T Abbott
(Prime Minister), Transcript of joint doorstop interview:
Queanbeyan, NSW: 12 August 2015 op. cit.
[92]. A Green, ‘Plebiscite
or Referendum - What's the Difference?’, Anthony Green’s election blog,
12 August 2015, accessed 17 August 2015.
[93]. Ibid.
[94]. G Williams,
‘Opinion: National plebiscite on carbon tax an expensive, bad idea’, Age, 21 June 2011,
[95]. The power
of the states to make laws with regard to marriage is discussed above in the
section dealing with constitutional issues.
[96]. A Green,
op. cit.
[97]. T Abbott
(Prime Minister), Transcript of joint doorstop interview: Queanbeyan, NSW: 12
August 2015, op. cit.
[98]. Scott
Morrison (Minister for Social Services), Interview with Miranda Devine: 2GB: 17 August 2015: same-sex
marriage; Jobs for Families child care package,
transcript, 17 August 2015, accessed 17 August 2015.
[99]. G Brandis
(Attorney-General), Interview with Peter Van Onselen: Sky News Australian Agenda: 16 August
2015: same-sex marriage; Dyson Heydon; environmental laws; constitutional
recognition of Indigenous peoples; ALRC Freedom Inquiry; welcome to country
ceremonies; workplace relations; leadership, transcript,
17 August 2015, accessed 17 August 2015.
[100]. M Turnbull,
(Communications Minister), Transcript of doorstop interview: Canberra: 13 August 2015: NBN
satellite; marriage equality debate, media
release, 13 August, accessed 17 August 2015.
[101]. T Butler
(Member for Griffith), Tony Abbott holding Australia back on marriage equality, media release, 17 August 2015, accessed
17 August 2015.
[102]. R Di Natale,
(Leader of Australian Greens) Greens propose way forward on marriage equality, media release, 13 August 2015,
accessed 17 August 2015.
[103]. Marriage
Equality Plebiscite Bill 2015, accessed 28 August 2015.
[104]. Senate Legal
and Constitutional Affairs References Committee, The matter of a popular vote, in the form of a plebiscite or referendum,
on the matter of marriage in Australia.
[105]. M Neilsen,
Background note, op. cit.
[106]. For example:
F Brennan, ‘Four preconditions for supporting marriage equality’, Eureka Street, 25/15, 11 August 2015.
[107]. Explanatory
Memorandum, Freedom
to Marry Bill 2014, accessed 23 August 2015.
[108]. The
Explanatory Memorandum argues that to allow authorised celebrants to
discriminate on the grounds of a person’s sex, sexual orientation, gender
identity or intersex status would treat one group of people with a characteristic
that is protected under discrimination legislation differently from other
groups of people with characteristics that are also protected; Explanatory
Memorandum, Marriage Legislation Amendment Bill 2015, accessed 28 August 2015.
[109]. An Act Implementing the Guarantee of Equal Protection under the
Constitution of the State for Same Sex Couples, 2009 Conn.
Pub. Acts no. 09‑13, section 17, refer to p. 19 for relevant
legislation, accessed 17 August 2015.
[110]. T Wilson, ‘Defend
religious freedom’, The Australian, 6 July 2015, p. 10, accessed 17 August 2015.
[111]. Ibid.
[112]. Sex
Discrimination Act 1984 (Cth), subsection 38(1) (employment), subsection 38(3)
(enrolment).
[113]. For example:
New South Wales, the Anti-Discrimination Act 1977 provides a religious
exemption under section 56: Nothing in this Act affects: [,,,] (c) the
appointment of any other person in any capacity by a body established to
propagate religion, or (d) any other [act or] practice of a body
established to propagate religion that conforms to the doctrines of that
religion or is necessary to avoid injury to the religious susceptibilities of
the adherents of that religion.
[114]. T Wilson, op.
cit.
[115]. Ibid.
[116]. ibid.
[117]. See Appendix
1.
[118]. Ibid.
[119]. R Croome, ‘What the 'religious freedom' argument against marriage equality
really means’, Guardian Australia, 16
July 2015, accessed 17 August 2015.
[120]. Ibid.
[121]. ‘Ministers
tied in knots over same-sex union’, Sydney
Morning Herald, 13 June 2015, accessed 27 August 2015.
[122]. Civil Marriage
Act 2005 (CAN), accessed 17 August 2015.
[123]. Law Council
of Australia, op. cit., p. 21.
[124]. Ibid.
[125]. Ibid.
[126]. Ibid.
[127]. G Griffith, op
cit., p. 7.
[128]. In
the Matter of Marriage Commissioners Appointed Under the Marriage Act 1995
2011 SKCA 3, accessed 23 August 2015.
[129]. G Griffith, op.
cit., p. 7.
[130]. Ibid.
[131]. In
the Matter of Marriage Commissioners Appointed Under the Marriage Act 1995, op. cit., para 98.
[132]. Ibid, para
100, quoted in: G Griffith, op. cit., pp. 6–8.
[133]. Civil Union Act
2006 (SOU), accessed 28 August 2015.
[134]. Marriage Act 1961
(SOU), accessed 28 August 2015.
[135]. Minister of Home
Affairs and Another v Fourie and Another [2005] ZACC 19; as quoted in
Law Council, op. cit., p. 22.
[136]. Law Council
of Australia, op. cit., p. 22.
[137]. Ibid., p. 23.
[138]. P de Vos, ‘A
judicial revolution? The court-led achievement of same-sex marriage in South
Africa’, Utrecht Law Review 4(2), June 2008, p. 169, accessed
17 August 2015.
[139]. Civil Union
Act (SOU), Preamble.
[140]. Civil Union
Act (SOU), section 1.
[141]. Law Council
of Australia, op. cit., p. 24.
[142]. P de Vos, op.
cit., p. 169.
[143]. Law Council
of Australia, op. cit., p. 24.
[144]. Ibid.
[145]. P de Vos, op.
cit., p. 173.
[146]. Ibid., pp.
173–174.
[147]. For further
information about both Acts the reader is referred to: House of Commons
Library, ‘Marriage of same sex couples across the UK: what’s the same
and what’s different?’, Research
Paper, 14/29, 14 May 2014, accessed 17 August 2015.
[148]. Marriage Act 1949 (UK), accessed 28 August 2015.
[149]. Canon B30
sets out the Church of England’s general teaching on marriage. It refers
specifically to marriage between a man and a woman. See: House of Commons
Library, ‘Marriage
(Same Sex Couples) Bill, Bill no. 126 of 2012–13’, Research Paper,
13/08, 31 January 2013, p. 6, accessed 17 August 2015.
[150]. An opt-in
activity is listed in a table. The Government’s Explanatory Notes summarise the
list as meaning ‘the various types of activity relating to the decision of a
religious organisation to opt-in to solemnizing marriage for same sex couples’.
Opt-in activities would include, for example, applying for the registration of
a building. Ibid., p. 44.
[151]. Marriage
(Definition of Marriage) Amendment Act 2013, (NZ), accessed 27
August 2015.
[152]. Marriage
Act 1955 (NZ), accessed 27 August 2015.
[153]. R Ahdar, ‘Solemnisation
of same-sex marriage and religious freedom’, New Zealand Law Journal,
November 2014, p. 397, accessed 17 August 2015.
[154]. Ibid., pp.
397–398.
[155]. Ibid.
[156]. Examples of
state based challenges to bans on same sex marriage include: Bourke
v Beshear, 996 F.Supp.2d 542 (2014); DeBoer
v Snyder, 772 F. 3d 388, pp. 416-420 (2014); Henry
v Himes, 14 F.Supp.3d 1036 (2014); Latta
v Otter, 779 F.3d 902 (2015); Waters
v Ricketts (United States District Court,
2 March 2015); Ex
Parte State Ex Rel Alabama Policy Institute (Supreme Court of Alabama,
3 March 2015), accessed 3 June 2015.
[157]. Obergefell
v Hodges 192 L. Ed. 2d 609, 135 S Ct.
2584 (2015), accessed 17 August 2015.
[158]. S Raj, ‘Dignified futures: a queer case on marriage equality?’, Law Society Journal, 14, August 2015, p. 22, accessed 17
August 2015.
[159]. See for
example T Butler (Member for Griffith), Transcript of doorstop interview: Coomera, Qld: 2 July 2015:
marriage equality, media release, 2 July
2015, accessed 17 August 2015.
[160]. F Brennan, ‘The US Supreme Court's gay marriage overreach’, Eureka Street, 2 July 2015, accessed 17 August 2015.
[161]. Raj notes
that in 1996, the court invalidated an amendment to the Colorado Constitution
that would preclude the Colorado government from passing anti-discrimination
laws or funding programs for gay, lesbian, and bisexual people. In 2003, the
court held that all remaining state bans on sodomy were unconstitutional
because they impinged on the right to private intimate association. A decade
later, the court brought down sections of the Defense of Marriage Act (US)
that prevented the federal recognition of same-sex marriages solemnised in
states where it was legal. See S Raj, op. cit., p. 22.
[162]. Ibid.
[163]. Obergefell v Hodges
p. 28.
[164]. Ibid., p. 2.
[165]. Ibid., p. 3.
[166]. F Brennan,
op. cit.
[167]. R Lempert, ‘Obergefell v. Hodges: Same sex marriage & cultural jousting at the
Supreme Court’ FIXGOV
blog, Brookings, 29 June 2015, accessed 17 August
[168]. F Brennan,
op. cit.
[169]. S Raj, op.
cit., p. 23.
[170]. Ibid.
[171]. France LOI
n° 2013 404 du 17 mai 2013.
[172]. Note that due
to different legal system and languages, the information regarding France is
mainly from secondary sources.
[173]. ‘France’s mayors “cannot block gay marriage”’, Telegraph,
18 October 2013, accessed 28 August 2015.
[174]. Loi n°99-944 du 15 novembre 1999 relative au pacte civil de solidarit.
[175]. The De
Facto Relationship Act 1984 (NSW) was the first state enactment to provide
a specific mechanism for property settlement when de facto couples split up.
[176]. A Sifris and
P Gerber, ‘Same-sex
marriage in Australia: A battleground for equality’, Australian Journal
of Family Law, 25, 2011, p. 96, accessed 27 August 2015.
[177]. See for
example, The Property (Relationships) Legislation Amendment Act 1999 (NSW); The
Statute Law Amendment (Relationships) Act 2001 (Vic); The Discrimination Law
Amendment Act 2002 (Qld); Statutes Amendment (Domestic Partners) Act 2006 (SA);
Relationships Act 2003 (Tas) and Acts Amendment (Lesbian and Gay Law Reform)
Act 2002 (WA).
[178]. N Witzleb,
‘Marriage as the ‘last frontier’? Same-sex relationship recognition in
Australia’, International Journal of Law, Policy and the Family, 25(2),
2011, p. 139.
[179]. Human Rights
and Equal Opportunity Commission (HREOC), National
Inquiry into Discrimination against People in Same-Sex Relationships: Financial
and Work-Related Entitlements and Benefits `Same-Sex: Same Entitlements,
Final Report, Sydney, HREOC, 2007, accessed 28 August 2015.
[180]. Prior to the
coming into operation of this legislation, property and maintenance disputes between
unmarried couples were heard in the state courts under state legislation.
[181]. A Sifris and
P Gerber, op. cit., p. 97.
[182]. Note also
that some jurisdictions also offer protection to relationships that do not
qualify as a de facto or couple relationship (described as ‘close personal
relationship’ in NSW, ‘domestic relationship’ in the ACT, ‘caring relationship’
in Tasmania and Victoria, and ‘close personal relationship’ in SA. However
these categories of relationship, with their less stringent criteria, generally
receive relatively less recognition and rights than those categories of
relationship where parties must be a cohabiting couple. For further information
see N Witzleb, op. cit., p. 142.
[183]. Family Law
Act, paragraphs 4AA(5)(a) and (b).
[184]. Section 5 of
the Relationships Act 2008 (Vic) provides that a registrable caring
relationship is: a relationship (other than a registered relationship) between
two adult persons who are not a couple or married to each other and who may or
may not otherwise be related by family where one or each of the persons in the
relationship provides personal or financial commitment and support of a
domestic nature for the material benefit of the other, whether or not they are
living under the same roof, but does not include a relationship in which a
person provides domestic support and personal care to the other person for fee
or reward; or on behalf of another person or an organisation.
[185]. For a fuller
explanation of the different legal requirements of relationship registration
see: O Rundle, op. cit., p. 126.
[186]. The Acts
Interpretation Act 1901 defines a person as the de facto partner of another
person (whether of the same-sex or a different sex) if the person is either in
a registered relationship under State or Territory law or if the person is in a
de facto relationship with the other person (sections 2D, 2E and 2F).
[187]. The term
‘civil union’ seems to have been used first in legislation passed in Vermont in
2000, in response to the Vermont Supreme Court ruling in Baker v. Vermont,
requiring that the State grant same-sex couples the same rights and privileges
accorded to married couples under the law, G Griffith, op. cit., p. 4.
[188]. Subsection
33(1).
[189]. N Witzleb,
op. cit., p. 159.
[190]. For details
of the legislation relating to adoption in the various jurisdiction, see A
Sifris and P Gerber, `Jack
& Jill/Jack and Bill: The case for same-sex adoption' AIternate
Law Journal 34, 2009, p. 168, accessed 28 August 2015.
[191]. N Witzleb,
op. cit., p. 148.
[192]. Ibid., p.150.
[193]. Further
described in: Ibid., p. 151.
[194]. Ibid. Also
gives examples of how partners of a same-sex and heterosexual relationships can
be disadvantaged where a partner, dies intestate.
[195]. For further
detail, see Rundle, op. cit., p. 147.
[196]. N Witzleb, op.
cit., p.135.
[197]. Ibid., p.
136.
[198]. S Argent,
quoted in: Senate Legal and Constitutional Affairs Legislation Committee, Marriage
Equality Bill 2009: Report, the Senate, 2009, paragraph 3.26,
accessed 24 August 2015.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
This work has been prepared to support the work of the Australian Parliament using information available at the time of production. The views expressed do not reflect an official position of the Parliamentary Library, nor do they constitute professional legal opinion.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Entry Point for referral.