Having overcome the social stigma attached to homosexual practices, at least in most Western societies, as well as making some political gains in a number of Eastern cultures, the proponents of gay rights have since persuaded a number of countries, states and even some major cities and Native American tribes, that it is not enough to recognise same-sex unions as equal to marriage, but that it is discriminatory not to do so in terms of equality as marriage.
The contention is illogical. The premise will be examined shortly. Also to be considered is the Australian Capital Territory’s Marriage Equality (Same Sex) Act 2013 which has just become law (in that territory) and is immediately facing a challenge in the High Court.
But first, consider the scope and impact of this rapidly growing movement for the recognition of gay marriage which has become the most controversial social and human rights issue in the world.
The situation is changing apace, but on last count sixteen countries have passed nation-wide laws recognising same-sex unions as marriage, and six others have proposals pending legislation or referenda. In addition, some fourteen countries have civil unions and registered partnership laws, with ten more proposals pending, but which do not go as far as to recognise same-sex unions as marriage.
As well there are a number of states, territories, major cities and other sub-national entities throughout the world (including fourteen states of the USA) which have either enacted same-sex marriage laws or licensing provisions, or in most cases have introduced various de facto forms of recognition short of same-sex marriage.
At the same time there are twenty-seven countries, with four others pending, and thirty-eight states (including thirty-five in the USA) which have reacted to this movement by expressly enacting laws prohibiting same-sex marriage. In many cases the issue has been so vehemently opposed that prohibition has been embedded in amendments to the constitutions of the countries or states concerned.
Of the sixteen countries that have lawfully recognised same-sex marriage, all have gone through divisive stages and shifts in public opinion. Some have experienced several failed attempts along the way. Most have started with some form of registered or unregistered cohabitation arrangement before accepting same-sex civil unions short of marriage and then finally deeming such unions as marriage. Most have experienced heated debates, protests and religious opposition in the process.
The notion that some principle is at stake unless same-sex unions are deemed to be marriage, is not shared by all those who promote or support gay rights. A largely ignored and less well organised international movement of Gays Against Gay Marriage opposes any such recognition. (Their reasons are mixed, but basically they reject any affinity with the concept of marriage, and some also see same-sex marriage as demeaning and damaging of the rights and freedoms of gay people.)
So why all these mixed reactions, and why is it illogical, as a matter of fact and of law, to deem same-sex unions to be the same as marriage?
Leaving aside the many objections, there are sound practical reasons why same-sex unions should be recognised in law. But same-sex unions and opposite-sex unions are factually different and separate concepts. They also involve different legal considerations.
Marriage is not just a ceremonial means of solemnising and making lawful a sexual union. Beyond the nuptials and the honeymoon is a fundamental institution which, in fact and in law, has only one meaning. The law needs to be cautious in creating a legal fiction that defines “marriage” as some kind of hybrid relationship or collective concept that neither form of union represents.
The problem for lawmakers lies in the fact that same-sex unions have never been identified or referred to by any established term; nor have same-sex unions been classified as an anthropological category. That is to say, they do not have their own institution.
This has allowed gay marriage advocates, in the making of same-sex union laws by countries and states around the world (including some states and territories in Australia), to claim, illogically, that it is not enough for same-sex unions to be recognised in status as equal to marriage, but that it is discriminatory unless those laws deem same-sex unions to be the same as marriage.
Where separate same-sex-union legislation has been deficient in addressing this lack of an appropriate term for such unions, without corrupting the definition and the institution of marriage, is the inclusion of a provision to the effect that: although a union sanctioned under this act is not the same as marriage, it shall not be improper for that union to be referred to or described by the term “marriage”.
Certainly, there is a degree of fiction in that approach but considerably less so than the contrivance of deeming same-sex unions as marriage. It would also allay many objections and be less likely to conflict with marriage laws or constitutional “stumbling blocks” such as section 51 placitum (xxi) of the Australian Constitution.
There has never been any constitutional doubt about what marriage is. Nor has there been any need, until this same-sex-unions issue arose, for marriage to be defined, at least in regard to legislation. Although “marriage” was reserved in the 1900 Constitution as a matter for the federal parliament, it was not until 1961 that the parliament enacted any measure on that subject (the Marriage Act 1961) and not until 2004 did parliament decided that “marriage” should be defined in that Act.
Up until 1961, marriage had been regulated since European settlement in Australia under a collection of separate measures of the states and territories (and before then by a complexity of Aboriginal laws and customs which, within various kinship arrangements, were based on monogamy, and seemingly also derived from a similar belief in an “Adam and Eve” beginning).
Due to concerns in 2004 following the adoption of same-sex marriage by some overseas countries and the livening of the issue in Australia, the Coalition government, with the support of Labor, amended the 1961 Act to ban the recognition of foreign same-sex unions in Australia and to define marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
That definition was based on the common law understanding of that term; but unfortunately that definition is altogether inadequate as a complete meaning of marriage and is given to a more ecclesiastical expression rather than an anthropological one. Thus, the definition has been open to the proponents of gay marriage seeking to re-cast it to mean “the union of two people, regardless of their sex, sexual orientation or gender identity, to the exclusion of all others, voluntarily entered into for life”.
Even so, neither definition says anything about the real and natural purpose of marriage or why it is necessary to be recognised in law. The Marriage Act is not there just to make sex lawful. What is missing from the Act’s definition of marriage are the words (or others to like effect) that: “marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, and intended in nature for the issue of children and the perpetuation of human kind”.
The inclusion of those added words (in italics) may seem hurtful to the prospects of gay couples but, in reality, it would be better than pretending that same-sex unions are something that they are not and can never be; even accepting that same-sex-union laws may permit the adoption of children, or condone one partner being a biological father or mother with someone outside that union (giving rise to issues of selfishness by the “parents” and social problems for the child).
The ACT has now brought the matter into sharp focus with its Marriage Equality (Same Sex) Act 2013, which awaits challenge in the High Court. The Act strives to avoid collision with the Constitution by not defining what “marriage” is, but more by saying what it is not.
The Dictionary part of the Act provides that: “marriage, under this Act, means—(a) the union of two people of the same sex to the exclusion of all others, voluntarily entered into for life; but (b) does not include a marriage within the meaning of the Marriage Act 1961 (Cwlth)”. It also adds to this definition in section 7 by providing that: “(1) Two people of the same sex may be married under this Act only if— … (c) each person cannot marry the person’s proposed spouse under the Marriage Act 1961 (Cwlth) because it is not a marriage within the meaning of that Act”.
Nowhere in this new Act or its definition is it acknowledged, as it is in section 6(2) of the Civil Unions Act 2012 (ACT) which the later Act has repealed, that “A civil union is different to marriage but is to be treated for all purposes under territory law in the same way as marriage”.
Also, unlike the earlier Civil Unions Act 2012 (ACT) which was very sketchy on the process by which same-sex unions were to be solemnised other than by some form of declaration made before a registered celebrant, the new Marriage Equality (Same Sex) Act 2013 sets out to mimic the provisions of the federal Marriage Act 1961 by requiring, inter alia, that celebrants conduct “marriage” ceremonies and have the parties take their partners as a “lawfully wedded spouse, wife or husband” (as preferred), and sign “marriage” certificates.
The first thing to note about the definition in this new Act is that it accepts marriage, in specie, to be the same thing in both acts. It then excludes from the Act those (opposite-sex) unions to which the federal Marriage Act 1961 applies. Thus, it purports to deal with something that is marriage but not marriage as defined by the Marriage Act 1961 (Cwlth). So what is it?
The Act doesn’t really say nor, presumably, does it want to say; or at least it doesn’t want to say too much. But it can be gleaned from what it does say that whatever marriage means, either as an institution or merely as a process of obtaining recognition and status under law, or both, then it is the same thing that is being dealt with and legislated upon; the only difference being that its provisions apply to all those same-sex couples to whom the Marriage Act 1961 does not apply.
In that sense the Act is a better model than the Marriage Equality Bills that failed to pass in the previous federal parliament and in which attempts were made to amend the Marriage Act 1961 by combining same-sex unions with opposite-sex unions in a collective definition. But the Act still fragments and corrupts the concept which is marriage; and it also maintains the fiction and pretence that same-sex unions can be something they are not.
But nothing is beyond politics or the interpretive skills of the High Court. “Marriage”, like many other words to be found in dictionaries, can be used, and is used, in different contexts and in different senses of primary and secondary meanings. Words can also be made to mean what you want them to mean (as the oft-quoted Humpty Dumpty approach to the mastery of words attests). But it is difficult to perceive how “marriage” as it appears in the Constitution leaves any room for interpretation, ambiguity or meaning other than that which it has meant long before Doctor Johnson or any other lexicologist put pen to paper.
If that be so in regard to the Constitution then this new Act, despite its title, is not about marriage or equality, but about same-sex unions still trying to find a way to be part of the institution of marriage.
Judicially, the issue is: What does “marriage” mean in the Constitution (as the High Court may find it to be), and is it reserved to the federal parliament? For it is not just a matter of whether the Marriage Act 1961 can be distinguished, but whether in operation and effect the (pointedly titled) Marriage Equality (Same Sex) Act 2013 (ACT) escapes the reaches of the Constitution.
Conceptually however, the policy issue comes down to: whether marriage is to remain with its centuries-old meaning intact, or whether out of political “feel-good” tokenism it is to become a general catch-all umbrella for same-sex unions and any other form of intimate domestic union that might become fashionable in the years ahead.
It is still possible, should the Act survive the High Court challenge, for the federal parliament to disallow it. Parliament is also able to limit the powers of the ACT (it not being a state) in respect of same-sex marriage, if it wishes to do so, as it did in 1997 in relation to euthanasia.
Obviously, that prospect would pose problems for the present government. First, it could not rely on the support of the Senate as presently constituted or as it will be after July next year. Second, it would not want to reignite the hotly debated issue of same-sex marriage which took place in the previous parliament in relation to two failed Marriage Equality Bills.
Clearly, however, the jumble of pacifying laws that now apply among the Australian states and territories in respect of same-sex unions needs to be addressed and applied uniformly on a national basis. Either parliament cedes to the extraordinary fiction of amending the definition of “marriage” in the Marriage Act 1961 to mean that opposite-sex and same-sex unions are conceptually the same or are compatible for purposes of the Act (with all its consequences) or preferably, it recognises same-sex unions as entitled to their own dedicated legislation equal in status to marriage and, for want of an original term, for it to be in no way regarded as improper if those unions are referred to and described by the term “marriage”.
One way or the other the issue is not going away but is being driven by an emotional outpouring of irrational and illogical reasoning that is resulting in ill-considered legislation.
Since the completion this article another legislative version similar to the ACT’s Marriage Equality (Same Sex) Act 2013 has been introduced in the New South Wales parliament with reasonable prospects of being adopted. It is titled the Same-Sex Marriage Bill 2013. It too sets out to mimic the Marriage Act 1961 and to distinguish same-sex unions from that Act. But it avoids issues of equality by boldly treating “marriage” as divisible. That is, it ignores all that marriage constitutes and blithely treats it as two “brands” of the same thing: opposite-sex marriage and same-sex marriage.
While it is less contrived in its concept than the ACT’s version, which attempts to admit same-sex unions into the institution of marriage, the New South Wales version just takes marriage over in its entirety and divides it into two kinds, with two forms of legislative recognition: the Same-Sex Marriage Bill 2013 kind and, implicitly, by retitling the other as the Opposite-Sex Marriage Act 1961 kind. The fiction is patent.
John de Meyrick is a lawyer, writer and commentator on legal affairs. He contributed the article “Gay Marriage and Legal Fiction” to the March 2012 issue.