Sigrid McKenna
Chapter( Three( *( Sigrid( McKenna,( Marriage'
equality:'A'possible'reality'or'unreachable'dream?(
37
Marriage equality
Marriage!equality:!
!! !
!
!!!!!!!
A"possible(reality(or(unreachable(dream?!
Sigrid'McKenna'
The right to marriage for people of all sexual orientations is a complex issue plagued by
social, religious, moral and political concerns and as a consequence has often been sidelined in favour of more mainstream and easily definable rights. However a growing
awareness of substantive equality has led the legal community to assess the possibility of
same-sex marriage legislation being introduced successfully into Australian law.
Currently the Marriage Act 1961 (Cth) (Marriage Act) prohibits the recognition of samesex marriage in Australia. However it has been argued the power to legislate on the issue
may exist at a State level.1 This assumption will be discussed in Part I with a particular
focus on the Marriage Equality (Same Sex) Act 2013 (ACT) (Same Sex Act), to evaluate
whether same-sex marriage legislation can be enacted in Australia.
The freedom of same-sex marriage, however, is not just a domestic issue. In light of the
ever-lengthening list of countries legislating for the right, the issue must also be
considered within the context of the international community.2 Part II will therefore
compare the Australian legal context to the International Covenant on Civil and Political
Rights 3 (ICCPR), which is arguably one of the most important instruments of
international equality.
Human rights do not exist in a vacuum. They are affected and limited by other rights.
Part III will therefore evaluate the effects of the right to freedom of religious conscience,
Mary Anne Neilsen, Same-sex Marriage, Parliament, of Australia
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/Bri
efingBook44p/Marriage.
1
Geoffrey Lindell, ‘Constitutional Issues Regarding Same-Sex Marriage: A comparative survey – North
America and Australasia’ (2008) 30(27) Sydney Law Review 27, 29.
2
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171
(entered into force 23 March 1976).
3
38
Sigrid McKenna
a right that has been argued to be in direct contrast to the right of marriage.4 It is
arguably important to inquire whether the implementation of same-sex marriage
legislation will require a compromise and whether such a compromise can be justified. 5
Marriage(equality(in(Australia(
The primary act regulating marriage within Australia is the Marriage Act. In 2004 the
Marriage Act was amended6 to define ‘marriage’ as ‘the union of a man and a woman to
the exclusion of all others’.7 As a consequence, a same-sex marriage cannot be legally
recognised in Australia.8 Since the Commonwealth Parliament has to date refused to
amend the Marriage Act jurists have speculated as to the other possibilities of including
same-sex legislation domestically.9
As a federation Australia’s legislative power is divided between two groups – the States
and the Commonwealth Parliament. Though federal legislation prohibits same-sex
marriage jurists have argued the division of law under a system of federation may enable
States to enact legislation allowing domestic same-sex marriages.10 Indeed there have
been several attempts by various State governments to legislate on the issue11 with the
closest being the relatively recent Same Sex Act. However just one week after its
enactment the Same Sex Act was held to be invalid by the High Court in Commonwealth v
Australian Capital Territory (2013) (ACT Case).12 It has therefore become necessary to
assess this case’s legal implications for the introduction of the right to same-sex marriage
in Australia at both a State and federal level.
4
Trischa Mann (ed), Australian Law Dictionary (Oxford University Press, 2010) 260.
Standing Committee on Social Issues, New South Wales Legislative Council, Same-sex marriage law in New
South Wales (2013) 32.
5
6
Marriage Amendment Act 2004 (Cth).
7
Marriage Act 1961 (Cth) s 5(1).
Castan Centre for Human Rights Law, Submission to NSW Legislative Council Standing Committee on
Social Issues, Inquiry into Same-Sex Marriage Law in NSW, (5 March 2013) 4.
8
Karina Anthony and Talina Drabsch, ‘Legal Recognition of Same-Sex Relationships’ (Research Paper No
9, Parliamentary Library, NSW Parliament, 2006) 57.
9
10
Lindell, above n 2, 43.
EG: Same-Sex Marriage Bill 2013 (NSW); Marriage Equality Amendment Bill 2010 (Cth); Marriage Equality
Amendment Bill 2009 (Cth).
11
12
Commonwealth v Australian Capital Territory [2013] HCA 55.
39
Marriage equality
The Marriage Act and the Same Sex Act were argued to be validly created as the power to
legislate on the topic of marriage is listed in the Australian Constitution as a concurrent
power.13 That is, marriage is a power shared by both the State and the Commonwealth
legislatures. However, as there were two statutes concerning the regulation of marriage
within Australia the issue of inconsistency became the primary concern of the High
Court. Under s 109 of the Australian Constitution, any State statute which conflicts with
a federal law will be held to be invalid to the extent of the inconsistency.14 The High
Court determined the Marriage Act was intended by the legislature to be a ‘comprehensive
and exhaustive statement of the law of marriage’.15 Since the Same Sex Act attempted to
also regulate marriage the High Court held the two Acts could not operate concurrently
and the authority of the Marriage Act was held to prevail.16
Consequently it appears that though the States do have Constitutional power to enact
same-sex marriage legislation, due to the rule of inconsistency, such a statute is
condemned to be ruled invalid by the High Court. In reality, it is only the
Commonwealth Parliament who has the necessary superiority of authority to enact
legislation recognising same-sex marriages.17
However the ACT Case was not merely concerned with statute inconsistency. In the
course of determining the validity of the Same Sex Act the High Court assessed the scope
of the power of ‘marriage’ within the context of s 51(xxi).18 Traditionally the High Court
has recognised the importance of the original meaning of the term. In this case, it is
arguable at the time of Federation in the 1900s the definition of marriage was confined
to the traditional definition that is between a man and a woman, as enacted by s 5(1) of
the Marriage Act. However it has been argued the Australian Constitution must be
applicable to modern contexts. As such there has been a certain willingness to allow for
13
Australian Constitution s 51(xxi).
Tasmanian Law Reform Institute, The Legal Issues Relating to Same-Sex Marriage, Research Paper No 3
(2013) 32.
14
Sarah Condie, Same-sex couples and marriage (31 December 2013) New South Wales State Library
<http://guides.sl.nsw.gov.au/content.php?pid=316240&sid=2590814>
15
High Court of Australia, Summary: The Commonwealth of Australia v The Australian Capital Territory (12
December 2013).
16
Patrick Parkinson and Nicholas Aroney, ‘The territory of marriage: Constitutional law, marriage law and
family policy in the ACT same sex marriage case’ (2014) 28 Australian Journal of Family Law 160, 168.
17
18
High Court of Australia, above n 16.
40
Sigrid McKenna
‘flexibility and adaptability within the Constitution’ by adopting broad definitions of
Constitutional powers.19
These arguments have been evident in the past especially with respect to the ‘postal,
telegraphic, telephonic, and other like services’ power20 which has been held to include
the radio21 and the television22 though at the time of Federation they had not yet been
conceived.23 Jurist Dan Meagher has also argued the word ‘marriage’ is ‘a legal term of
art’ which he suggests allows such concepts to ‘gain their meaning from social and
cultural constructs which [may] change over time’.24 The High Court held in the ACT
Case ‘marriage’, within the context of the Constitution, is ‘a consensual union formed
between natural persons in accordance with legally prescribed requirements’.25 Therefore
it was held the marriage power could include ‘a marriage between persons of the same
sex’.26
However this Constitutional definition of marriage was held to be amendable by federal
legislation. That is, the Commonwealth Parliament was held to have the valid authority
to either legislate for or against same-sex marriage.27 Therefore it could be argued the
effect of such a decision is that s 5(1) of the Marriage Act could be amended to validly
include same-sex marriage if the federal legislature so desired.
Same*sex(marriage(internationally
Human rights do not always recognise state sovereignty and by often transcending
national borders require an analysis in the international human rights forum. The
freedom for persons of the same-sex to marry is not specifically included in any
19
Tasmanian Law Reform Institute, above n 14, 16.
20
Australian Constitution s 51(v).
21
R v Brislan; Ex parte Williams (1935) 54 CLR 262.
22
Jones v Commonwealth (No 2) (1965) 112 CLR 206.
23
Lindell, above n 2, 39.
Tasmanian Law Reform Institute, The Legal Issues Relating to Same-Sex Marriage, Research Paper No 3
(2013) 19 citing Dan Meagher, ‘The Times are They a-Changin’?’ (2003) Australian Journal of Family Law
134, 149.
24
25
High Court of Australia, above n 16.
26
Ibid.
27
Lindell, above n 2, 44.
41
Marriage equality
international human rights document.28 Instead it has been forced to depend on several
articles within the ICCPR including Article 26 which outlines the anti-discrimination
right, Article 17 which states all people have a right to privacy and Article 23 which
outlines the right for natural persons to marry and found a family.29
Arguably the most significant case in interpreting these ICCPR articles on the issue of
recognising the right to marriage is Joslin v New Zealand (2002) (Joslin).30 The United
Nations Human Rights Committee was asked to consider Article 23, the right to marry
and found a family, in light of a New Zealand statute prohibiting same-sex marriage.
Article 23 states ‘[t]he right of men and women of marriageable age to marry and to
found a family shall be recognized’.31 The Human Rights Committee interpreted this to
mean same-sex marriage was not a right protected by the ICCPR as the use of the words
‘men and women’ was held to only apply to heterosexual couples. It was determined a
refusal to provide for same-sex marriage by a signatory was not a breach of the ICCPR.32
However, Joslin has since been criticised as a literal reading which ignored the overall
intention of the ICCPR. Many human rights jurists have argued the Human Rights
Committee did not consider Article 26, the anti-discrimination right. Article 26 ‘prohibits
discrimination in law or in fact in any field regulated and protected by public
authorities’33 ‘on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status’. 34 Although
Article 26 does not expressly include sexual orientation as a ground for a finding of
Human Rights Commission, ‘Human rights and discrimination on the basis of sexual orientation or
gender identity - Addressing sexual orientation and sex and/or gender identity discrimination’
(Consultation Report, Human Rights Commission, 2011)
https://www.humanrights.gov.au/publications/section-4-human-rights-and-discrimination-basis-sexualorientation-or-gender-identity
28
29
Castan Centre for Human Rights Law, above n 8, 6-19.
30
Joslin et al v New Zealand, Communication No 902/1999, U N Doc A/57/40 at 214 (2002).
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171
(entered into force 23 March 1976) Article 23(2).
31
Australian Human Rights Commission, ‘Marriage Equality in a Changing World’ (Position Paper),
Australian Human Rights Commission, 2012) 2-3.
32
United Nations Human Rights Committee, General Comment No 18: Non-discrimination, (Thirty-seventh
session, 1989), Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 26 (1994) 3.
33
34
Human Rights Commission, above n 25.
42
Sigrid McKenna
discrimination the Human Rights Committee has held in several cases the terms ‘sex’ and
‘other status’ should now include sexuality.35
There have also been several other international cases which have declined to follow the
precedent set by Joslin. In Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project
v Minister of Home Affairs (2005)36 the South African Constitutional Court argued the term
‘men and women’ used to describe marriage in international treaties such as the ICCPR is
irrelevant. Changing cultural attitudes have forced international bodies to recognise
contemporary approaches to rights or risk becoming atrophied tools of ignorance and
inefficiency. 37 It is therefore arguable since the Human Rights Committee did not
consider Article 26 a similar case today may be decided differently, especially when one
considers the growing international support for same-sex marriage.38
However it has also been argued while the ICCPR imposes anti-discrimination
commitments on its signatories, the covenant does not impose a positive obligation to
recognise the right for same-sex couples to marry.39 In the General Comment No 18 the
Human Rights Committee has stated ‘[i]t is for the State parties to determine appropriate
measures to implement the relevant provisions’ therefore ensuring state sovereignty
powers are not impeached but also creating a loophole for reluctant signatories.40 As a
consequence the Commonwealth Parliament cannot be forced to uphold Article 26.
Same*sex(marriage(and(religion(
Human rights do not exist by themselves. They are often enhanced or even limited by
other rights. The right to freedom of religious conscience has been argued to be a right
in direct contrast to the right of marriage. Many mainstream religious groups believe
Toonen v Australia, Communication No 488/1992, U N Doc CCPR/C/50/D/488/1992 (1994); Young v
Australia, Communication No 941/2000, U N Doc CCPR/C/78/D/941/2000 (2003).
35
Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister
of Home Affairs and Others [2005] ZACC 19.
36
37
Australian Human Rights Commission, above n 32, 3.
38
Tasmanian Law Reform Institute, above n 14, 28.
39
Australian Human Rights Commission, above n 32, 1.
United Nations Human Rights Committee, General Comment No 18: Non-discrimination, (Thirty-seventh
session, 1989), Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 26 (1994) 1.
40
43
Marriage equality
marriage should only be between a man and a woman. From this view, any other type of
relationship cannot be legally recognised as a marriage and to implement same-sex
marriage legislation would severely impeach the practice of religious expression.41 To
assess the truth of this assumption and therefore determine the legal reality, it is
necessary to temporarily disregard religious principles of morality.
Marriage has historically been considered to be a religious institution but in today’s world
it is arguable marriage is predominantly an agreement regulated by a, relatively, secular
government. A valid marriage no longer requires religious solemnisation. Furthermore
many religions today support the right for same-sex couples to marry including several
sects of mainstream Abrahamic religions which have previously condemned the right.42
Freedom of religion is protected at an international level by the ICCPR in Article 18.43
However while it upholds religious belief it also arguably protects the freedom to not
believe. That is, Article 18 also protects atheist or agnostic beliefs. It is arguable the right
to believe a same-sex marriage will not contravene certain moral principles is also
upheld.44
By recognising religion is a social construct and that no one religion can be given
predominance by the ICCPR, it therefore becomes necessary to contemplate a legislative
compromise. In the many other countries where same-sex legislation has been
implemented, 45 each respective legislature has arguably protected both religious
expression and marriage rights by allowing same-sex couples to be married in civil rather
than religious ceremonies. Furthermore foreign same-sex marriage statutes do not force
religious institutions or their clergy to participate.46
By drawing on the examples of other similar legal systems it can be argued in reality there
does not need to be any serious effect on the freedom of religious expression. In fact it
Ira Lupu and Robert Tuttle, ‘Same-Sex Equality and Religious Freedom’ (2010) 5(2) Northwestern Journal
of Law and Social Policy 274, 275.
41
42
Tasmanian Law Reform Institute, above n 14, 20-21.
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171
(entered into force 23 March 1976).
43
44
Lupu and Tuttle, above n 41.
Other countries include: Argentina, Belgium, Canada, Denmark, Iceland, Mexico, the Netherlands,
Norway, Portugal, South Africa, Spain, Sweden, and several states in the USA.
45
46
Lupu and Tuttle, above n 41, 276.
44
Sigrid McKenna
could be argued religious institutions that refuse to allow the Commonwealth Parliament
to legislate for same-sex marriage are impeaching the freedom of other religions that do
recognise same-sex marriage.
Conclusion(
The right for same-sex couples to marry has been a highly debated topic both
domestically and internationally. It is a highly contentious topic which tends to elicit
strong, emotional responses. Though the arguments preventing same-sex marriage are
loud it appears from the evidence the solution is simple. While it is not feasible for State
parliaments to legislate on the topic, it appears the Commonwealth Parliament by
amending the Marriage Act under its marriage power is the best option for creating a
cohesive, equal statute that will enable Australia to fulfil its international antidiscrimination obligations. Religious expression will arguably not be enormously affected
as religious institutions will not be forced to participate in a civil ceremony.47
The meaning of marriage and its implications for the world have evolved as moral,
cultural, religious and political attitudes have changed.48 Whereas once upon a time the
Marriage Act may have reflected the dominant attitude towards same-sex marriage it
appears arguable it is time for legislative change. Indeed as the list of countries legislating
for same-sex equality grows so too does the pressure on the Commonwealth Parliament
to update its policy on anti-discrimination and equality.49 It is arguable that by providing
for equality in marriage in Australia we can greatly assist the march towards equality
across the world.50
(
47
Ibid.
Human Rights Resource Centre Ltd, Submission to Inquiry into the Marriage Equality Amendment Bill 2009,
August 2009, 5.
48
49
Australian Human Rights Commission, above n 32, 3.
50
Human Rights Resource Centre Ltd, above n 48.
45
Marriage equality
References
A(Articles/Books/Reports(
Anthony, Karina, and Talina Drabsch, ‘Legal Recognition of Same-Sex Relationships’
(Research Paper No 9, Parliamentary Library, NSW Parliament, 2006)
Australian Human Rights Commission, ‘Marriage Equality in a Changing World’
(Position Paper), Australian Human Rights Commission, 2012)
Lindell, Geoffrey, ‘Constitutional Issues Regarding Same-Sex Marriage: A comparative
survey – North America and Australasia’ (2008) 30(27) Sydney Law Review 27
Lupu, Ira and Robert Tuttle, ‘Same-Sex Equality and Religious Freedom’ (2010) 5(2)
Northwestern Journal of Law and Social Policy 274
Mann, Trischa (ed), Australian Law Dictionary (Oxford University Press, 2010) 260
Parkinson, Patrick and Nicholas Aroney, ‘The territory of marriage: Constitutional law,
marriage law and family policy in the ACT same sex marriage case’ (2014) 28 Australian
Journal of Family Law 160
Standing Committee on Social Issues, New South Wales Legislative Council, Same-sex
marriage law in New South Wales (2013) 32
Tasmanian Law Reform Institute, The Legal Issues Relating to Same-Sex Marriage, Research
Paper No 3 (2013)
B(Cases(
Commonwealth v Australian Capital Territory [2013] HCA 55
Jones v Commonwealth (No 2) (1965) 112 CLR 206
Joslin et al v New Zealand, Communication No 902/1999, U N Doc A/57/40 at 214 (2002)
Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and
Others v Minister of Home Affairs and Others [2005] ZACC 19
R v Brislan; Ex parte Williams (1935) 54 CLR 262
Toonen v Australia, Communication No 488/1992, U N Doc CCPR/C/50/D/488/1992
(1994)
Young v Australia, Communication No 941/2000, U N Doc CCPR/C/78/D/941/2000
(2003)
C(Legislation(
Marriage Act 1961 (Cth)
Marriage Amendment Act 2004 (Cth)
Marriage Equality Amendment Bill 2010 (Cth)
Marriage Equality Amendment Bill 2009 (Cth)
Same-Sex Marriage Bill 2013 (NSW)
46
Sigrid McKenna
D(Treaties(
International Covenant on Civil and Political Rights, opened for signature 16 December 1966,
999 UNTS 171 (entered into force 23 March 1976)
E(Other(
Castan Centre for Human Rights Law, ‘Submission to NSW Legislative Council Standing
Committee on Social Issues’, Inquiry into Same-Sex Marriage Law in NSW, (5 March 2013)
Condie, Sarah, ‘Same-sex couples and marriage’ (31 December 2013) New South Wales
State Library <http://guides.sl.nsw.gov.au/content.php?pid=316240&sid=2590814>
High Court of Australia, ‘Summary: The Commonwealth of Australia v The Australian Capital
Territory’ (12 December 2013)
Human Rights Commission, ‘Human rights and discrimination on the basis of sexual
orientation or gender identity - Addressing sexual orientation and sex and/or gender
identity discrimination’ (Consultation Report, Human Rights Commission, 2011)
https://www.humanrights.gov.au/publications/section-4-human-rights-anddiscrimination-basis-sexual-orientation-or-gender-identity
Human Rights Resource Centre Ltd, ‘Submission to Inquiry into the Marriage Equality
Amendment Bill 2009’, August 2009
Neilsen, Mary Anne, Same-sex Marriage, Parliament, of Australia
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentar
y_Library/pubs/BriefingBook44p/Marriage
United Nations Human Rights Committee, General Comment No 18: Non-discrimination,
(Thirty-seventh session, 1989), Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRI/GEN/1/Rev.1 at 26 (1994) 3.
47