Same-Sex Marriage

1
Same-Sex Marriage

• An Update on Overseas Developments

2
Canada Provinces allow same-sex marriage

• Ontario, British Columbia and Quebec courts have
  held that the Canadian Charter of Rights and
  Freedoms requires that marriage be extended to
  same-sex couples
• Reason constitutional right to equality Art
  15(1)
• the dignity of persons in same-sex relationships
  is violated by the exclusion of same-sex couples
  from the institution of marriage
• Same-sex couples have been marrying in these
  provinces since 2003.

3
Canada Federal Response

• The Federal Parliament proposed a law to
  recognise same-sex marriage
• The validity of the law was upheld by the
  Canadian Supreme Court
• The meaning of the term marriage in the
  Constitution is not frozen to the meaning it had
  in the 1800s
• The Bill has passed the second reading in the
  House of Commons, 163 to 138

4
USA Massachusetts

• The Massachusetts Supreme Court held that the
  Massachusetts Constitution requires recognition
  of same-sex marriage
• Over 1000 same-sex couples were married on the
  first day the ruling took effect
• A constitutional amendment has been proposed to
  reverse the Courts ruling and substitute civil
  unions instead. The earliest it can pass is
  November 2006.

5
USA California

• The State Superior Court ruled that denying
  marriage to same-sex couples is unconstitutional.
  The decision is being appealed.
• A Bill is before the State legislature to allow
  for same-sex marriage
• A constitutional amendment is being sought to
  prohibit same-sex marriage

6
USA New York State

• The NY Supreme Court ruled that denial of
  same-sex marriage is unconstitutional
• Rote reliance on historical exclusion as a
  justification improperly forecloses
  constitutional analysis and would have served to
  justify slavery, anti-miscegenation laws and
  segregation.

7
USA Connecticut Vermont

• Legislation defines marriage as the union of one
  man and one woman
• The legislation also provides for civil unions
  for same-sex couples

8
USA Nebraska

• State constitutional amendment preventing
  same-sex marriage and civil unions passed. 70
  approval.
• US District Court held the amendment to be
  unconstitutional under the equal protection
  clause of the US Constitution
• Because it precludes access to the democratic
  legislative process to seek legal reform

9
USA Federal Response

• In 1996 the Defence of Marriage Act was passed
• No State shall be required to give effect to a
  law of any other State with respect to a same-sex
  "marriage."
• The words "marriage" and "spouse" are defined for
  purposes of Federal law.
• A constitutional amendment has been suggested
• President Bush the amendment is necessary
  because of attempts by "activist judges" to
  redefine marriage

10
The Netherlands Belgium

• The Netherlands and Belgium allow full same-sex
  marriage
• Extended through legislation, not judicial
  decision

11
South Africa

• The Supreme Court developed the common law
  definition of marriage so as to conform with the
  constitutional Bill of Rights. It now includes
  same-sex marriages.
• Reason The capacity for commitment and the
  ability to love and nurture and honour and
  sustain transcends the incidental fact of sexual
  orientation
• However, until the executive takes action under
  the Marriage Act, the Courts decision does not
  operate.

12
Spain

• Parliament is considering a Bill to allow for
  same-sex marriage
• The Bill has passed the lower house
• It is expected to pass the upper house
• The Vatican has criticised the Bill

13
Non-Marriage Recognition

• The following countries recognise same-sex
  relationships, but not marriage

14
Relevance to Australia?

• Trend internationally is towards recognition of
  same-sex marriage
• And towards recognition of same-sex relationships
  in other ways (eg registered partnerships)
• States in Australia are moving in these
  directions
• The Commonwealth is moving backwards similar to
  the US federal government. Different from other
  liberal, developed nations.

15
Do we want same-sex marriage?

• Yes case
• Equality
• Human dignity
• Liberty/Freedom of choice
• No case
• Marriage an inherently problematic institution
• Recognising same-sex marriage will inevitably
  force same-sex relationships into a heterosexual
  model
• Removes the freedom gay men and lesbians have to
  define their own relationships