Marriage Equality in Australia the Next Steps
"The next step, quite frankly, is having three people or four people that love each other being able to enter into a permanent union endorsed by society …There are even some creepy people out there... [who] say it is OK to have consensual sexual relations between humans and animals. Will that be a future step? In the future will we say, ‘These two creatures love each other and maybe they should be able to be joined in a union? I think that these things are the next step.”
"The next step, quite frankly, is having three people or four people that love each other being able to enter into a permanent union endorsed by society …There are even some creepy people out there... [who] say it is OK to have consensual sexual relations between humans and animals. Will that be a future step? In the future will we say, ‘These two creatures love each other and maybe they should be able to be joined in a union? I think that these things are the next step.”
-Senator Cory Bernardi, Australian Senate Debate, 18.09.
12
"I agree with that Senator Sanatorium, if we let this thing go too far, pretty soon, we'll be fucking dogs"
-Tony Soprano, Series 6, Episode 6
Whilst love itself cannot be legislated, the institutional bond of
marriage is designed to encourage its longevity and concerns the symbolism of
union as much as the procedural comingling of rights and property: if not, why
go to an altar or registry surrounded by friends and family and utter
ritualistic phrases when one could just send a letter to their solicitor?
This paper aims to demonstrate that whilst tradition and law define
marriage as between a male and a female, equality
dictates that all natural persons not directly related by blood, who wish to
wed (and only non-minors and in non-plural marriages) should, without further
limitations, be able to do so using international standards of anti-discrimination
justice as the yardstick. A reconsideration of the international terms of
reference might be a means for same-sex marriage to occur in the absence of an
Act of Australian parliament. This paper will (1) begin with a statutory
definition of marriage and review of relevant Australian jurisprudence and (2)
assess the current legal position of entitlement to marriage against the
backdrop of The Commonwealth v Australian
Capital Territory (2013)[1]
(the ACT case).
The second part of the paper responds to the notion of (3)
limitations and restrictions and finally (4) compares the Australian and
international positions before weighing the question of limitations if marriage
were to be defined by different parameters to those of The Marriage Act 1961 (Cth) (the Marriage Act). The Constitution cannot in modern times be
interpreted to have intended a fundament schism between the symbolic rights of
two classes of Australian society.
1. Marriage in Australia
The Constitution confers power on the federal government to make
laws pertaining to ‘marriage’ through its own head of power under s. 51
(xxi). Section 5 of the Marriage Act defines it as “the union of
a man and a woman to the exclusion of all others, voluntarily entered into for
life”. This stops short of the famous 19th century judicial
definition of Lord Penzance (a divorce judge) in Hyde v Hyde and Woodmansee (1866) who defined it thus in
Christendom. Whilst marriage is not a Christian institution in Australia[2],
or a specifically religious one, the male/female component has been hitherto immutable.
It is worth noting that a great deal of the opposition to same-sex marriage is
motivated by conservative religious lobbies on both sides of politics. The
Shop, Distributive and Allied Employees Association, for instance, the
conservative (and originally catholic) Union in the influential right-wing
faction of the NSW Branch of the Australian Labor Party does not support
marriage equality and along with other conservative Unions within that party
will not allow a binding vote in favour of marriage equality. When at the
December, 2012 National Conference the party finally granted a conscience vote
to its members on the issue of same-sex marriage it was nonetheless a foregone
conclusion that a policy resolution in favor an amendment of the Marriage Act would fail under Labor.
The then opposition, led by socially conservative (and publicly, staunchly
Jesuit) Tony Abbott was also unlikely to change the Act and indeed had a
binding vote against doing so, which in government it maintains. For all
intents and purposes the state of Australian politics as it stands leaves the
matter in perpetual limbo. Nonetheless whilst politics seems paralised on the
issue, as Meagher notes, (before the ACT
Case) there had been speculative judicial obiter about the breadth of the
definition of ‘marriage’ however the constitutional validity to change the
definition in terms of gender in The
Marriage Act had not been questioned or decided.[3]
Meagher’s 2003 exploration into the possibility of whether the act could even validly
legislate for same sex marriage considered the obiter of McHugh J in Re Wakim; Ex Parte McNally (1999)[4]
which queried whether: “arguably ‘marriage’ now means, or in the near future
may mean, a voluntary union for life between two people to the exclusion of
others”[5].
The weighing of the connotations of ‘marriage’ between 1900 and
today is curious: certainly there is a factual argument that reasons marriage
around the world now includes same-sex union, however it is submitted that the mechanics
and balance of Australian democratic politics as outlined above shows that the
majority of party members (within their party units) of both major parties
support the notion that marriage is between a man and a woman and that being
the case, determines from a democratic point of view, that regarding the terms
of reference of these times, the definition can have no other conclusion than
the status quo. That position however
is irrelevant to the thesis of this paper which submits that the right for same
sex couples to marry is now an internationally accepted one.
2. The ACT Case
The ACT government passed the Marriage Equality (Same Sex) Act 2013 (ACT)(the
ACT Act) in October 2013. In so doing
the territory advanced the proposition that the Federal Marriage Act did not in fact govern same-sex marriage, which might
be articulated as a different species of marriage to traditional heterosexual
marriage: to “provide for marriage equality
for same sex couples, not for some form of legally recognized relationship
which is relevantly different from the relationship of marriage which the
federal laws provide for and recognise”, per French CJ, Hayne, Crennan,
Kieffel, Bell and Keane JJ at <3>. There is no doubt that the legal
fiction that same sex marriage is a different entity to traditional doesn’t sit
well with Australian law. Firstly, the parliament considered and defeated two
2012 bills to change the act to solemnise same-sex unions, furthermore s. 3 of
the Marriage Amendment Act 2004 (Cth)
made clear that (with the insertion of the following to s. 5): “’marriage’ means the union of a man and a woman to
the exclusion of all others, voluntarily entered into for life”, whilst s. 88EA of The Marriage Act since that amendment, expressly states that same sex unions solemnised abroad are not,
under the act to be deemed Australian marriage.[6]
So the question the High Court took upon itself to answer was whether the
Federal Government, under s. 51 (xxi) could
constitutionally enact laws relating to same sex marriage, and answered this in
the affirmative. This being so, the ACT
Act was inconsistent with the Marriage
Act. The scope of what might Constitutionally constitute marriage was decided
at par. 33 to require:
(i)
a
consensual union
(ii)
between
natural persons (a number of persons omitted)
(iii) in accordance with legally prescribed
requirements
and defined it as:
(iv)
a
union recognised by the law,
(v)
intended
to endure, terminable only by the law and which
(vi) affects mutual rights and obligations.
But if the above shows that the High Court
interprets that s. 51 (xxi) thus confers federal power to create laws relating
to same sex marriage, and that s. 5 of The
Marriage Act excludes same sex marriage, surely it follows that the Federal
government has the power to either re-amend The
Marriage Act or enact a same sex marriage act. If it is enabled to do the
latter, then the States and Territories must have the power, in the absence of
such an act, to make their own. At paragraphs 56-59, the unanimous judgment seems
to reject this argument articulating at par. 59, “the implicit negative
proposition that the kind of marriage provided for by the Act is the only
kind of marriage that may be formed or recognised in Australia.” But, par. 56
speaks of “the absence of a provision permitting same sex marriage” and not the
absence of an act. Herein lies some circular inconsistency within the judgment.
There was the further issue under the ACT
Act that lacked clarity in whether a man married to another man in the
territory, might be able to marry a woman under the federal marriage act. If one adopts the apples and oranges
approach, that the two types of union are distinct, then theoretically one
would have two valid unions, but for s. 33 of the ACT Act, the preponderance of these diverse marriage types simplifies
the notion that the Constitution can only have envisaged one form of marriage, especially owing to
the fact that the framers included s. 51 (xxi) to alleviate complications inherent
in the 19th century operation of marriage across the United States
of America[7] (though
this does not go to why, prior to 1961 Marriage law was the domain of the
states).
Whilst some scholars have found the above broad
scope (at par. 33 of the judgement) ‘especially problematic’[8]
it is submitted that it is a definition that sits with the requirements of
modern times.
3. Limitations and Restrictions
Does the potential scope of the Constitutional power under s. 51
(xxi) really cover: forced marriages, marriages amongst minors, incestuous or
polygamous marriages or marriages between humans and animals, or even amongst the
beasts themselves?
Beginning with animals; that is not what husbandry means! It is a nonsense to suggest that there is any
scope allowed for bestial marriage for it only allows for natural persons.
The question of polygamy is open-ended, for the judgment decided
that Australian Law does recognise polygamous marriage, indeed the Family Law Act 1975 (Cth), s. 6
recognises a polygamous marriage solemnised in a jurisdiction in which it is or
was legal. In the face of s. 88EA of the Marriage
Act, it appears that polygamous marriage falls into the scope of what the
Federal Parliament could legislate with respect of marriage both under statute
and within the jurisprudence. Whether this should be so is open for debate;
western polygamy traditionally relates to the popular notion that Mormonism, a
branch of the Christian faith in the United States of America permits it (it no
longer does). Indeed the case of Hyde v
Hyde concerned an English Mormon suing for divorce of a wife. It is curious
that the accepted legal definition of Australian marriage under s. 5 of the Marriage Act is based on the judgment of
a 19th century British case concerning a former Mormon priest.
Whilst in no state in North America is polygamy currently legal, it is in many
nations and cultures around the world, that being so and there existing no
inherent imbalance in power or influence in choosing to undertake such a
marriage, it is submitted that there is no legal basis to state that the
federal government does not have the power to legalise polygamy, (especially
when under s. 94 of the Marriage Act
it prohibits polygamy, in the same reasoning as in the Act Case, it must thereby have the power to allow it). Whether it
should is a matter of moral and not legal determination.
Turning to incestuous marriages, the prohibitions in s. 23B of The Marriage Act already exist to
exclude such matters, the fear that the broad definitional scope now determines
that the Federal parliament could legislate for inter-familial marriage is
moot; it already had that power. Whilst marriageable age will be dealt with
below, one question that has not been clarified is whether the judgment alludes
to the fact that the Federal Government has the power to enact laws relating to
customary marriage in the Australian indigenous context. An analogous instance
was alluded to in the 19th century case of Bethell v Hildyard (1888)[9]
which saw an African colonial polygamous ‘marriage’ overridden by English law
prohibiting polygamy. Without further discourse on that subject it is
sufficient to say that if it fulfills the scope of the judgment, then Federal
parliament can enact laws as to customary Aboriginal marriage within the
marriage power.
4. The International context
Regarding the final questions of the marriageable age and forced marriage, it is simple enough to state that the age under the Marriage Act is 18 years (s. 11), or between 16-18 in exceptional and unusual circumstances, as decided by a judge or magistrate (s. 12) and satisfying the consent provisions (ss. 13-16). One question arises as to whether the federal government would have the power to lower that age limit, and if it did, for instance lowering the marriageable age to 14, would that make problematic the compatibility of state criminal acts that define the legal age of consent for sexual conduct as 16-18, similarly what impact would it have on federal codes purporting to regulate the same field? Article 23 of the International Covenant on International Civil an Political Rights 1966, (the ICCPR), enabled by Australian Human Rights Commission Act 1986 (Cth) (without any reservation pertaining to that article) protects the recognition of “The right of men and women of marriageable age to marry and to found a family”. Dealing first with the issue of age, the Human Rights Committee did state that “the Covenant does not establish a specific marriageable age either for men or for women, but that age should be such as to enable each of the intending spouses to give his or her free and full personal consent in a form and under conditions prescribed by law.”[10] Forced or non-consensual arranged marriage is prohibited under s. 23B of the Marriage Act, in addition to this, a non-consensual union is not deemed to be constitutionally envisaged by the Marriage power per the judgment in the ACT Case. It might be argued that the jurisprudence for the consensual aspect of marriage, especially in the ACT Case indicates that consent is the very lowest bar for what the constitution could envisage as marriage.
Regarding the final questions of the marriageable age and forced marriage, it is simple enough to state that the age under the Marriage Act is 18 years (s. 11), or between 16-18 in exceptional and unusual circumstances, as decided by a judge or magistrate (s. 12) and satisfying the consent provisions (ss. 13-16). One question arises as to whether the federal government would have the power to lower that age limit, and if it did, for instance lowering the marriageable age to 14, would that make problematic the compatibility of state criminal acts that define the legal age of consent for sexual conduct as 16-18, similarly what impact would it have on federal codes purporting to regulate the same field? Article 23 of the International Covenant on International Civil an Political Rights 1966, (the ICCPR), enabled by Australian Human Rights Commission Act 1986 (Cth) (without any reservation pertaining to that article) protects the recognition of “The right of men and women of marriageable age to marry and to found a family”. Dealing first with the issue of age, the Human Rights Committee did state that “the Covenant does not establish a specific marriageable age either for men or for women, but that age should be such as to enable each of the intending spouses to give his or her free and full personal consent in a form and under conditions prescribed by law.”[10] Forced or non-consensual arranged marriage is prohibited under s. 23B of the Marriage Act, in addition to this, a non-consensual union is not deemed to be constitutionally envisaged by the Marriage power per the judgment in the ACT Case. It might be argued that the jurisprudence for the consensual aspect of marriage, especially in the ACT Case indicates that consent is the very lowest bar for what the constitution could envisage as marriage.
This paper has submitted that a pursuit of marriage-equality by
means of International law might advance the possibility of having Australian
law altered through international treaty obligations. As was shown above,
Article 23 of the ICCPR describes the “right of men and women... to marry”. It
is tempting but erroneous to advance the interpretation that this means men and
women or men and men or women and women. In Joslin
v New Zealand (2002)[11],
the HRC rejected the substance of that submission stating that the article “is
the only substantive provision in the Covenant that defines a right by using
the term ‘men and women’”[12]
rather than other more universal terms. The communication in Joslin v New Zealand is along the lines
of how one might make a communication to the HRC on the grounds that s. 5 of
the Marriage Act is a violation of
international human rights under the ICCPR, though in that instance of course
it failed, it is possible but unlikely that in the intervening 13 years the
situation may have changed substantially to reconsider the matter.
However, article 26 of the ICCPR
provides that “all persons are equal before the law and are entitled without
any discrimination to the equal protection of the law”. Any future
communication need not actually reference Article 23 as it is not relevant to
the issue of same sex marriage. In reference to the response in Joslin, even accepting that s. 23 only
applies to marriage between men and women, it simply needs to be stated that if
a state party has enacted a law that is in violation of Article 26, it need not
matter that Article 23 may be referenced (but need not be).
This above is a tidy notion, however everything turns on what
constitutes ‘discrimination’. The prevailing notion in Australia is that there
is no discrimination between same sex couples and legally married couples at
law with regard to their legal and property rights. This is a convenient state
of affairs that ignores the practical reality that marriage is about symbolism.
From the ring worn as a symbol of the union, to the ritualistic
nature of ‘traditional’ marriage, to the many provisions within the act
relating to who may marry two individuals, what the celebrant may say and how;
symbolism is inherent in the whole of the activity, which is governed by s. 51
(xxi) of the Constitution. A marriage certificate is not merely another
conveyancing document, nor a bill of transfer of chattel ownership. It is more
than a recognition of legal obligations: it is a recognition of a union. If the
intrinsic symbolic importance is acknowledged by the Marriage Act, then to deny it to citizens based on their sexual
orientation is to breach Article 26 of the ICCPR. Following this logic a Tasmanian Dams approach can be pursued
however, that level of extension is not in issue.
Evan Hughes
[1] 250
CLR 441
[2]
Attorney-General (Commonwealth) v ‘Kevin and Jennifer’ and Human Rights and
Equal Opportunity Commission (2003) 30 Fam LR 1
[3] Dan
Meagher, ‘The times are they a-changin’? — Can the Commonwealth parliament
legislate for same sex marriages?’ (2003) 17 Australian Journal of Family Law
134
[4] 198
CLR 511
[5]
Ibid at <533>
[6]
See: The Commonwealth v Australian Capital Territory (2013) 198 CLR 511 at par.
57
[7]
Official Record of the Debates of the Australasian Federal Convention,
(Sydney), 22 September 1897 at 1080, cited at par 7 of The Commonwealth v
Australian Capital Territory (2013) 198 CLR 511
[8] P
Parkinson and N 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, 185
[9] 38
Ch D 220
[10]
General Comment No. 19, Human Rights Committee, 39th Session, Adopted 27 July,
1990, par. 4
[11] HRC
902/1999