FAMILY:
Preserving marriage in Australia

by Richard Egan

News Weekly, November 1, 2003
Will amendments to the Marriage Act be needed to head off judicial attempts to dilute the meaning of marriage? Richard Egan examines the issue.

The fundamental definition in Australian law of marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life" is under attack from a number of directions.

Earlier this year, the Australian Democrats moved an amendment to the Marriage Act to change this definition to allow marriage between two men or between two women.

Only the Australian Greens supported them and the proposal was soundly defeated.

There is at present no legal recognition of same sex couples in Federal law. Up until September 2003 the ALP joined the Coalition parties in rejecting attempts by the Democrats or Greens to introduce provisions giving any such recognition to same sex couples. According to National Party Senator Ron Boswell, the ALP had done so on at least 11 occasions.

However, on September 10, the ALP supported a Democrat motion in the Senate calling for full recognition of same sex couples in Federal law.

Same sex recognition

The motion was in response to a finding by the United Nations Human Rights Committee that Australia had breached Article 26 of the International Covenant on Civil and Political Rights by refusing to give a war widower's pension to Edward Young who had been the homosexual companion of a deceased war veteran.

It is worth noting that only one nation (Finland) of the twelve countries represented on the Committee that heard this matter gives national legal recognition to same sex couples and that homosexual behaviour is illegal in three of these countries (India, Benin and Mauritius).

The representatives of Malta and the United States signed a joint opinion which somewhat qualified their agreement with the Committee.

In particular they noted that the Committee did not have the opportunity to consider whether there are reasonable and objective grounds for a State to make a distinction in the way it confers benefits on unmarried heterosexual and same sex couples, as the Australian Government had inexplicably declined to address this central issue and had instead limited its defence to procedural and other technical matters.

Discrimination?

Just one week later on September 17, the ALP itself moved amendments in the Senate to superannuation legislation to treat same sex couples as "partners" with the same benefits as married couples.

These amendments passed with ALP, Democrats and Greens support. As expected, the amendments have since been removed by the House of Representatives.

In early August, Simon Crean was asked about same sex marriage. He replied, "Our position has always been that there should not be discrimination based on sexuality.

"It's also the case that advice that's come to us indicates that constitutionally it is probably difficult, if not impossible, for the Commonwealth Government to legislate in this area [i.e., same sex marriage].

"Our task has been to remove discrimination against gay couples in other areas where we have the capacity, and that's what we'll continue to focus on."

It is unclear what the ALP's position would be on legislation designed to make clear that the Marriage Act only applied to marriage between one man and one woman.

Legal challenges

Another way in which the accepted definition of marriage in Australia could be challenged would be for a same sex couple who have been married in a jurisdiction which recognises such marriages, e.g., Canada, the Netherlands or Belgium, to seek to have an Australian court recognise their marriage as valid.

Given the unpredictability of the Courts there is no certainty as to the outcome of such a case.

High Court Justices Kirby and McHugh have already claimed in obiter dicta that the word "marriage" in the Constitution may have changed so that today it may include same sex marriage.

One Canadian same sex couple have already tried to be admitted to the United States as a married couple but have been refused.

They were welcome to enter as two single men, but declined.

Gay activism is international in character and a deliberate attempt to force a change in Australian law is foreseeable.

Similarly, a same sex couple may apply to be married in Australia and when refused may seek judicial relief as did the same sex couples in Ontario.

Definition and recognition

Notwithstanding the common law definition of marriage, the Constitution and the Marriage Act 1961, it is not impossible that an Australian court may follow the precedent set by the Ontario Supreme Court in changing the definition of marriage on its own authority

Homosexual activists are trying this strategy all over the United States in an effort to find a Court which will follow the Ontario precedent.

On October 8, the Supreme Court of Arizona dismissed one such attempt, ruling that the State of Arizona's prohibition of same sex marriage was rationally related to its "legitimate interest in encouraging procreation and childbearing within the stable environment traditionally associated with marriage."

Another possible approach would be to seek to expand the new common law test decided by the Full Bench of the Family Court in Attorney-General (Cwth) v Kevin and Jennifer as to whether a person is a man or a woman.

This decision already incorporates psychological factors which may be given more weight than biological realities.

The test set by the Court is so loose that it may be capable of being expanded to cover same sex marriages even where neither party is a transsexual.

For example, it may be sufficient for one of a male homosexual couple to define himself as taking the part of the "wife" or "woman" in the relationship for a Court to recognise him as a "woman" for the purpose of marriage.

Preservation

If we wish to preserve the age old and universal meaning of marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, then we must amend the Marriage Act 1961 to incorporate this definition definitively, to overturn the novel definition of "man" and "woman" introduced into common law by the Family Court and to explicitly exclude the recognition in Australia of same sex marriages registered in foreign jurisdictions.

Such an amendment will require the support of the Howard Government and, to pass the Senate, either the support of the ALP or of members of the ALP prepared to exercise a conscience vote.

The alternative is the certain eventual recognition of same sex marriages in Australian law, with the consequent diminishing of the status of marriage as a unique relationship between a man and a woman oriented to the procreation and education of children.