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ACT makes a dog's breakfast of marriage equality

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Frank Brennan |  28 October 2013

Rainbow coloured banner bearing the slogan 'Equal love'After the June decisions of the US Supreme Court on same sex marriage, I restated in July 2013 my support for civil unions. Conceding that neither side of the debate was much interested in that outcome, I said, 'We can probably no longer draw a line between civil unions and same sex marriage. That will be the long term consequence of last month's US Supreme Court decisions which will impact much further west than California.'

The caravan has been moving at some pace since then in Australia but it is difficult to assess in what direction or whether it just be around in circles with the advocates for marriage equality digging themselves into a judicial hole from which it might be difficult for either side to emerge.

During the recent federal election, Kevin Rudd pulled out all stops to advocate same sex marriage legislation in the Commonwealth Parliament. Tony Abbott stuck firmly to the line that his party would maintain party policy that marriage is a relationship between one man and one woman to the exclusion of others, and that the party policy would be maintained unless and until the party revised its position, including whether or not to allow a conscience vote. In the Liberal Party, as distinct from the Labor Party, members are always free to cross the floor without the risk of automatic expulsion from the party — though their prospects of promotion tend to take a nosedive.

I remain of the view that any extension of the civil law's definition of marriage should be the preserve of the Commonwealth Parliament with all members being granted a conscience vote. Presently the 1961 Commonwealth Marriage Act as amended states that 'marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life'.

At 11.40am on 22 October the ACT Legislature voted by nine votes to eight to agree in principle to the passage of its Marriage Equality Bill. Thirteen minutes later, they voted by eight votes to seven to agree to 25 amendments including a renaming of the bill as the Marriage Equality (Same Sex) Act 2013. The purpose of the amendments was to 'clarify that this is a law for same-sex marriage and the ACT is not seeking to legislate in an area of law already governed by the Commonwealth under the Marriage Act 1961'.

The result is a dog's breakfast. And everyone is now off to the High Court.

Just to give one morsel from the dog's breakfast: The long title of the Act has been amended to read: 'An Act to provide for marriage equality by allowing for marriage between two adults of the same sex, and for other purposes'. But another amendment provides a definition of marriage: 'Marriage means a marriage under the Marriage Act 1961'. But the main 'dictionary' definition given in the Act states that 'marriage does not include a marriage within the meaning of the Marriage Act'.

So there you have it: under some provisions of the ACT Marriage Equality (Same Sex) Act, marriage means a marriage under the Commonwealth Marriage Act (which excludes same sex marriage) except presumably when it is a marriage under the ACT Marriage Equality (Same Sex) Act, between two adults of the same sex.

Under the Constitution, the Commonwealth Parliament has power to make laws with respect to marriage. So too do the states. And since 1978, so too does the ACT Legislative Assembly. But if a Commonwealth law covers the field, any state or territory law does not operate to the extent of any inconsistency.

Undoubtedly the Commonwealth will argue in the High Court that it has covered the field on marriage since 1961 and it should be left to do so. Advocates for 'marriage equality' frustrated by the slow pace of change at a Commonwealth level have decided to pursue state and territory legislation for forms of unequal and inferior marriage recognition in the hope of providing further political pressure for the Commonwealth to act.

All this is being done in the name of 'marriage equality'. The sort of marriage being offered same sex couples by the ACT law is so 'equal' as to provide: 'A marriage under this Act ends if either of the parties to the marriage later marries someone else under a Commonwealth law (including a marriage in another jurisdiction that is recognised by the Commonwealth as a valid marriage)'. No need for a minimum time of separation; no need for a court order; just up and off!

Professor George Williams, one of the legal advisers to the ACT Government on their amended Act, said three years ago: 'It would be better to have a single national law providing for same-sex marriage. However, such a law may not be legally possible, and in the short term may be politically unachievable. In these circumstances, we should not discount the possibility of a state leading the way.'

Marriage equality advocates are pursuing the issue at a state level in the hope of pressuring the Commonwealth. In the process they risk blowing apart the national coherence of marriage laws put in place in 1961.

History provides some salutary lessons about the need for detailed, careful legislative work — other than the 13 minutes consideration given by the ACT legislature to their amendments last week. History also points to the wisdom of a conscience vote in the national Parliament on this issue.

Introducing the Commonwealth Marriage Bill on 19 May 1960, Sir Garfield Barwick said he had taken a full year to prepare the legislation and he was prepared to wait many more months to debate the bill 'making with the states the several administrative arrangements which the bill contemplates'. He said: 'the measure will not be treated as a party measure ... members will be free to adopt their own attitudes and to express them by their vote, freely'.

The original Marriage Act contained no definition of marriage. Kim Beazley Snr like other members saw no need for a definition as he thought the marriage customs of Australians were unlikely to be radically changed by legislation. He said, 'The marriage customs of the community are, in fact, customs and they have not been framed around law. Perhaps to a considerable extent they have been framed around religion.'

Barwick said, 'The founding fathers of the Commonwealth were of a like mind; they thought that these fundamental relationships should be governed by a national law; for in a list of subjects not notable for its length, which were to be conceded to the national Parliament, marriage was included.'

Interesting for present purposes, Gough Whitlam, Deputy Leader of the Opposition with the carriage of the matter for the Labor Party, reminded the Parliament on 17 August 1960:

When the Attorney General (Barwick) made his second reading speech on this bill, he announced that while the Government would take full responsibility for having made the proposals contained in the measure and would support them, as a government, the legislation would not be treated as a party measure, and honourable members would be free to adopt their own attitudes to it and express them freely by their votes. The Opposition has resolved to take the same course.

Whitlam went on to say:

This is a field in which the founding fathers themselves, with their very narrow and timid conceptions of the Commonwealth's powers, were agreed that this Parliament should be able to pass laws.

In that respect our Commonwealth is different from the other English-speaking federations, the United States of America and Canada. We have power to pass laws on these subjects. I believe that everyone, whatever he might think of individual features of the bill, would agree that we should pass laws on this subject. As a result of this bill, Australian men and women and their children, wherever they live, will be able more readily and certainly to ascertain and establish their rights to marriage and arising from it.

In what might now be seen as a delightful ambiguity, Barwick, summing up the parliamentary debate, pointed out that there was no definition of marriage in the Bill nor in the Constitution: 'That is because we in this community recognise marriage as monogamous and a voluntary union for life of two people to the exclusion of all others.'

Religion is much less relevant now to the civil definition of marriage because while the crude marriage rate continues to decline (from 7.3 in 1960 to 5.5 in 2008), the proportion of civil marriages continues to increase. A century ago, 95 per cent of marriages were church marriages; in 1969, 89 per cent of marriages were still being performed in church. By 2010, 69 per cent of all marriages were performed by civil celebrants.

Some strong advocates of traditional marriage, including the Australian Christian Lobby, have been suggesting that the matter should be resolved by referendum. That is a bad idea. In Australia, we expect our members of parliament to make the statutory law and our judges to shape the common law and interpret the Constitution. We the people vote by referendum only to change the Constitution.

Occasionally there is a case to be made for a plebiscite when we are trying to determine a particular question to put to the people by referendum to change the Constitution. This is what we did when we wanted to determine whether we were ready to vote for a particular form of republic.

Groups like the Australian Christian Lobby should be careful what they wish for. If a referendum on same sex marriage, why not a referendum on (say) the death penalty? If the opinion polls are right, there is no doubt the way that one would go. Or a referendum on excluding boat people from Australia? Or a referendum on euthanasia? There are good reasons for avoiding the populist politics of lawmaking by direct popular vote of the people.

A year after the passage of the Marriage Act 1961, Barwick observed:

As I said when introducing the Bill ... I do not believe that there is any necessary virtue in uniformity; indeed, in many areas of human endeavour, variety may bring strength. 'But' (to quote from Hansard) 'the relationship of husband and wife, parent and child, is common to us all, whether we derive from one State or another. Also I think it is particularly proper that, as this country increases in international stature, it should have one uniform law of marriage applicable throughout the Commonwealth.'

Writing in an academic journal and reflecting on the passage of the Marriage Act 1961, Barwick said:

To bring unity to the marriage law of Australia was not, however, the main task of the architects of the Marriage Act. Their main task was to produce a marriage code suitable to present-day Australian needs, a code which, on the one hand, paid proper regard to the antiquity and foundations of marriage as an institution, but which, on the other, resolved modern problems in a modern way.

This remains our task, and it is best done by the Australian Parliament exercising a conscience vote rather than state and territory legislatures tinkering and then leaving the matter to the High Court. Marriage is too precious a social institution to be put in the mix of a dog's breakfast.


Frank Brennan headshotFr Frank Brennan SJ is professor of law at Australian Catholic University, and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.

'Equal love' banner image from Shutterstock

 



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'Marriage is too precious a social institution to be put in the mix of a dog's breakfast'. Exactly. Thank you once again, Frank, for your clarity in describing the legal issues and their history.

Joan Seymour 28 October 2013

I think you're misrepresenting the Australian Christian Lobby. As far as I can see the suggestion that gay marriage be resolved by referendum was made in response to the much touted claim that the majority of Australia supports same-sex marriage.There may indeed be good reasons for avoiding the populist politics of lawmaking but fear of exposing the bogus claims by the "marriage equality" lobby is not one of them. In fact, your article reminds me how brilliantly political narratives are forged these days, and how people are made to accept them. This marriage equality campaign in all its glorious elitism is a perfect case in point. In direct contrast to the grass-roots civil rights campaigns of old, this one comes straight from the top of society down; and is a campaign which is ruthlessly unforgiving of disagreement.

DavidSt 28 October 2013

I was on radio the other night with the head of tha Australian Christian Lobby. He advocated a referendum on same sex marriage. I said that was a very bad idea. I remain of that view.

Frank brennan Sj 28 October 2013

I was on radio the other night with the head of tha Australian Christian Lobby. He advocated a referendum on same sex marriage. I said that was a very bad idea. I remain of that view.

Frank brennan Sj 28 October 2013

As someone who, for practical, rather than religious, motives, takes your line on civil partnerships rather than same sex marriage, I think the ACT Legislature may have done the earnest advocates of full same sex marriage equality a great disservice which may very well derail their cause for a lengthy period. I suspect the Federal Government will be successful in its High Court challenge. This will further put back the uncompromising marriage equality advocates' cause. Compromise should have been the name of their game.

Edward F 28 October 2013

There is something very Monty Python-esque, in this convoluted attempted to redefine marriage to incorporate gay marriage. 'An Act to provide for marriage equality by allowing for marriage between two adults of the same sex, and for other purposes'. really?... other purposes, what might that mean? It needs to be pointed out over and over again, that this fight for gay marriage is about 'undefining marriage' as much as it is 'redefining marriage'. To take away a rigid definition of marriage, ie. between a man and woman, will lead to marriage becoming 'undefined' and limitless. I am yet to read or hear any coherent argument against further broadening of the definition of marriage beyond gay marriage, to include such things as polygamy and even familial relationships, eg. cousins. Surely the 'marriage equality' mantra will be used again by supporters of other kinds of 'marriage'.

Ever hopeful 28 October 2013

When you join an organisation you usually agree to obey its rules, whether it be a football club or cricket club or even the Catholic church. So as a member of the catholic church I shall stay with Gods law and not mans. Frank- I am surprised you do not support Gods law better

PHIL 29 October 2013

My issue with conscience votes is the privilege that is extended to the parliament should also be engrained into the legislation. In other words, you tread carefully drafting legislation to enact law that potentially removes the freedom to exercise ones conscience (the ACT is not treading carefully). We see in Victoria new legislation that desires to vilify doctors who have a problem with killing the unborn for social convenience for not referring patients seeking abortion. However, while contentious, the right to hold a view one way or the other on abortion is generally accepted. Not so for same-sex marriage where any opponent exercising the constitutional rights of free speech are called bigots or worse. The knock on effects of discrimination are not being addressed - I believe because the lobbyist of same-sex (and then poly) marriage want to leave that door well and truly open (with no less fervour than the likes of the ACL want to preserve the traditional definition). A core tenant of this debate must be respecting that people hold strong views in many directions, not least of which may be religious where such views are also protected by the constitution (last time I looked anyway).

AndrewE 29 October 2013

Thanks, Frank, for the usual thorough analysis, but I would have liked to see some recognition of the genuine distress caused to people born homosexual who are denied the legal recognition of their loving relationship, a relationship no less committed than a heterosexual couple. If the legal/constitutional dog's breakfast causes some effective soul-searching in the national Parliament, I'd think it will have proved worthwhile. I'm more concerned for ending discrimination against people who are homosexual than the legal/constitutional niceties which in this case may obstruct social justice. I'm afraid that Christ's churches will take longer to recognise the justice issue than even our national parliament.

Peter Johnstone 29 October 2013

I really find any religious involvement in this issue is irrelevant, cynical and disingenuous and see no reason to debate it from a Christian perspective - but at least the Catholic Church is consistent - as opposed to Protestant churches that accept divorce despite it being more definitively forbidden in the Scriptures that same sex marriages (of which it says nothing) And even in the few references it does mention, it refers to men and not women - so lesbian marriages seem to me to be OK.

AURELIUS 29 October 2013

It is a bit rich to have a catholic priest call the movement toward marriage equality a dogs breakfast. After all it is the Catholic Church that still calls the act of homosexuality an abomination, the condition disordered and a warp of gods creation ( the latter description) attributed to archbishop Coleridge on Q@A). Homosexuality is rife throughout the church's soldiers of Christ. A church in denial has no right to interfere in the secular rights of a marginalised people. The discrimination is palpable

Michael Gravener 29 October 2013

Marriages, in the sense of sexual relationships between consenting adults existed well before there were churches or states and has little to do with either. It was a personal matter between the partners. Only in the case of heterosexual relationships were offspring produced. When resources appeared to be unlimited and children were seen as future security, such unions were esteemed and encouraged. As civilisation evolved, laws were enacted to ensure the proper upbringing of offspring by promoting the stability of the relationship. with ceremonial commitments. Really the State has little to concern itself with what consenting adults do in private, unless there are undesirable consequences.

Robert Liddy 29 October 2013

I am the biggest fan of Fr. Frank about 99% of the time, but there are some conclusions drawn in this article which have surprised me a bit. I am wondering if the Good Priest can clarify. Firstly, it’s not technically correct to suggest that the original Marriage Act contained no definition of marriage. Section 46(a) has always provided the requirement for civil celebrants to explain the nature of marriage, this being "Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life." The Howard Government Amendments in 2004 simply moved this definition from section 46(a) to the Definitions section 5. Secondly, several jurists, including Fr. Frank's father, former Chief Justice Gerald Brennan have argued that it is beyond the powers of the Commonwealth Parliament to legislate for any other form of marriage besides that encompassed by its traditional definition’. Therefore, I would find it surprising that Fr. Frank seems so keen to limit the decision making powers on the definition of marriage to the Commonwealth Parliament. This being the case, surely the most legally secure course of action is taking the matter to the people?

Neil 29 October 2013

Why don't we do what the French do - civil marriage at the town hall and then a church blessing. It would make the church much more meaningful and not just a pretty venue. Maybe this could solve the problem as it would be a civil union legally binding and a separate blessing in a church if you are so inclined. Btw I agree with the article, especially the last sentence.

Jane 29 October 2013

Don't say marriage equality, say "marriage equality" or 'so-called marriage equality. We have marriage equality now; everyone has an equal right to get married. If marriage is redefined to include same-sex marriage (etc) we'll need a new word for the partnership based on the anatomical complementarity of males and females which is the accepted means for the procreation of children and their upbringing. This is too fundamental to be thought of as just one type of something greater.

Gavan Breen 29 October 2013

Neil is quite right that the original Marriage Act 1961 provides that an authorized celebrant, other than a religious celebrant “shall say to the parties, in the presence of the witnesses, the words-‘I am duly authorized by law to solemnize marriages according to law. Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter. Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’, or words to that effect.” But the definition section of the Act did not provide a definition of marriage for the very reason stated by Kim Beazley Snr as I quoted in the article. The definition was not inserted into the Act until 2004. I have written about Neil’s other point at considerable length in the past. I have previously used the example of lighthouses. The Commonwealth Parliament under the Constitution has the power to make laws with respect to lighthouses. It is a complex question the extent to which the Commonwealth can extend its own legislative power by redefining what is and what is not a lighthouse. Ultimately it is for the High Court to determine what is a lighthouse in 2013, and that might be quite a different thing from a 1901 lighthouse. What’s now happening is that the ACT legislature is attempting to legislate about a new type of “lighthouse” by saying it is not a lighthouse in the old sense but that it is legislating in the name of providing equal treatment to old style lighthouses (governed by Commonwealth law) and new style lighthouses (governed by ACT law and not Commonwealth law because they are not really lighthouses). Speaking of dog’s breakfasts, I was taken by one comment by a legal mate of mine: If the Commonwealth has power to legislate about dogs, can the problem be overcome by the state legislation defining a particular cross-breed not as a dog but as a dogg? If the High Court were to decide that marriage in the Constitution means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, then it would be beyond power of the Commonwealth Parliament to change or extend the definition of marriage and it would be possible for the States and territories to legislate for same sex unions but not to ascribe the term marriage. Then there would be a case for a referendum to amend the Constitution so that the Commonwealth could make laws with respect to marriage, including same sex marriages. I make no apologies to the various commentators who think that any citizen who happens to be a Catholic priest has no right to comment on these things. I enjoy being an Australian citizen and exercising the entitlements thereto.

Frank Brennan SJ 29 October 2013

Michael Gravener, you need to reread the article. Frank isn't deeming the movement towards marriage equality a dog's breakfast. It's the proposed ACT legislation that's such a mess, and everyone in favour of marriage equality should be dissatisfied with it. Indeed, it's hardly a step towards equality if the same-sex marriage is negated by one partner or another entering into a heterosexual marriage, as the legislation seems to suggest. No equality there!

Joan Seymour 29 October 2013

"to bring unity to the marriage law of Australia was not, however, the main task of the architects of the Marriage Act. Their main task was to produce a marriage code suitable to present-day Australian needs, a code which, on the one hand, paid proper regard to the antiquity and foundations of marriage as an institution, but which, on the other, resolved modern problems in a modern way" is the explanation you quote Fr Frank to sum up the 'dog's breakfast' situation fast enveloping the debate our nation, indeed, all its citizens, should be engaging in re same-sex people and their needs and whether it is best to offer them civil marriage or civil unions or an otherwise structure of protection under the Law of our nation. Barwick's summary talks about paying proper regard to the past and the ACT Labour-Greens coalition has demonstrated in no way a regard for the past by its gung-ho "we want to be first, we want to make history" approach. DavidSt has it correct with his evaluation that the ACT legislation is a 'top-down' approach. Ever Hopeful raises probably the most important objection in this whole debate. What will become of marriage as institution.

Fr Mick Mac Andrew 29 October 2013

When two people fall in love and wish to marry, if they are heterosexual - no problemo. If they are homosexual, they have to read all sorts of opinions, listen to all sorts of opinions, and endure all sorts of difficulties. And the church is one of the culprits in this joyless journey for them - how sad.

Pam 29 October 2013

To Peter Johnstone. Your comment contains so much that requires, if it is to be condidered a serious contributor to this debate, significant clarification. I think that if you wish to make the comment you have, you must clearly identify your sources. Otherwise you your views will carry no purchase and deservedly will be considered irrelevant. For example, who are these people "born homosexual'? Surely you are aware of the vast body of medical and psychological research that discredits any heredity or genetic basis for your glib statement? Yes, it has been suggested that perhaps in a small percentage of sufferers (your word, not mine) that a genetic mutation may occur which leads to a failure of the usual maturation of sexual orientation towards the opposite genetic based sex. But genetic mutatations are widespead and nowhere else are they considered to represent a 'natural variant of normality.' Indeed, variations from normal attributed to mutations are considered abnormal. And what legal recognition precisely is denied homosexual people in this country? They enjoy the legal recognition that many unmarried heterosexual do, as I understand it. And what precisely is this relationship 'no less committed than [that of] a hetero sexual couple"? Certainly less committed I would suggest when it comes to the production and nurturing of one's own children created by God in accordance with his plan for creation of human life. And that is just the first sentence you've written! The real question is not what the Church thinks of 'social justice' as proposed by proponents such as yourself (good self, I'm sure, but sadly misguided) but rather what Christ thinks. Christ is church, in union with his people, not with the flamin' social scientists. Have a pleasant day, Peter,- it's not that bad. Christ will probably get it right without a lot of help from the likes of you and me!

john frawley 29 October 2013

Thanks for your reply Fr Frank. I agree that from a purely legal point of view, there is a case for a referendum. I also note your point of view about the floodgates argument if we push for a referendum on the issue of marriage, if this extends to issues such as the Death Penalty etc.... However I respectfully submit that hardly any other issue is evoking anywhere near the level of debate as Marriage (evidence of which included the volume of submissions received by the Parliament on the issue). In your July Article, Fr. Frank, you mentioned "society could properly move to recognition of civil unions or same sex marriage if and when the overwhelming majority of the population (including those who are presently married civilly) supported such change." Without a referendum, how can a society properly gauge whether an overwhelming majority of the population backs this change or not? Many parliamentarians, both current and former, across the political spectrum are united on this view that seeking public opinion via a referendum is the way to go, for example Anna Burke (ALP), Darren Chester (Coalition) and Nick Xenophon (Ind). There are international precendents which have been established on a same sex marriage referendum. Several states in the USA have adopted this path, as did Slovenia and Ireland will have a referendum on this issue as well, and there is no evidence of any 'floodgates' issue on other hot-button social issues. The problem with have this issue decided by Parliament in a conscience vote is that often parliamentarians do not always represent the views of their constituents. There is little doubt that outer suburban seats such as Isaacs (represented by Mark Dreyfus QC), Blaxland (represented by Jason Clare) and Bruce (represented by Alan Griffin) are vehemently against any change to the legal definition of marriage, however all three sitting members voted to change the definition in the Marriage Act 1961 last September. Similarly, it could be argued that Julie Bishop, in the inner suburban seat of Perth, Curtain as a supporter of the current definition, has defied the will of her electorate in supporting the current definition, as have, arguably Joe Hockey (North Sydney) and Josh Frydenburg (Kooyong). All have indicated that even in the event of a Conscience vote, they would vote to preserve the definition traditional marriage. Therefore the conscience vote is imperfect, where 150 MPs and 72 Senators are effectively imposing a view on what an institution that affects us all, in fact is...

Neil 29 October 2013

Just two short points. (1) "None are good " said Jesus None can abide by all God's Law. (2) The French option of civil marriage and Church blessing if wanted, seems to be a reasonable option. We don't live in a theocracy.

David 29 October 2013

Joan, i know what is being said, The Catholic Church is not supportive of same sex marriage full-stop Frank Brennan have to agree by his mere association with church that he has sworn allegiance too. The Church may excommunicate him otherwise. I am just airing my frustration that when any Church Personal can not talk to an issue without the fear of retribution they try to find a clever way of getting others to understand the moral dilemma by mudding the waters of what is a fundamental Catholic Teaching and/or maybe, just maybe an ethical wrong doing, that discriminates destructively against a minority group of people who have had enough. The ACT marriage act has done more for the rights of equality under the law than the Catholic Church will ever achieve on this. I would prefer a dogs breakfast anyday rather than sit on the fence of injustice.

Michael Gravener 29 October 2013

"Groups like the Australian Christian Lobby should be careful what they wish for. If a referendum on same sex marriage, why not a referendum on (say) the death penalty?, etc" As Christian I would hope there would be a referendum on reintroducing the death penalty or the related aided euthanasia. The alternative is to allow a vote on this by the seedy political rabble with fingers in all sorts of pies.

The_Observer 29 October 2013

"Ultimately it is for the High Court to determine what is a lighthouse in 2013, and that might be quite a different thing from a 1901 lighthouse." If we maintain a real essentialist metaphysics and epistemology then this statement is true. So "Quite a different thing" may be, say, an unoccupied building on Mt Kosciusko housing a laser beam which somehow warns and guides pilots guiding boats in the waters surrounding Australia. "Quite a different thing" can't mean "any building or artifact whatsoever located on within the borders of Australia". The trouble is that we have been for many decades subject to the intellectual disease of nominalist and other anti-essentialist philosophies, and, notoriously, curial thinking in High Courts has not been immune. So unfortunately it's now possible to imagine a High Court determining that, under the constitution, a lighthouse is, say, "any building on Australian soil". If a nominalist-inspired court were so to determine, it would be making an error - not some rarified error of law, but an error of fact, stemming from a false philosophical outlook. I believe a referendum in this case would perhaps the only practical and effective recourse the people of Australia would have: thus using their common sense to "amend" the constitution - precisely so as to preserve it from such anarchic curial tendencies. Ditto for marriage and "same sex marriage".

HH 30 October 2013

Today, the Fairfax press (no critic of “marriage equality”) tells us that the ACT caucus is considering further amendments to their hastily prepared legislation. The ACT Chief Minister says, ''The amendments seek to remove the words marry, marriage, people marrying, marriage equality - they're the words that the amendments seek to remove from our bill.'' The Australian Marriage Equality deputy director Ivan Hinton has actually urged the changes saying, ''The ACT government had clearly acknowledged the need to amend the bill when it passed some of the recommended amendments last week. They now need to finish the job and protect thousands of couples who now have fresh hope of being able to marry on Australian soil for the very first time.'' So come and get “married” in the ACT under a law which won’t use the word! And the “marriage equality” movement is urging legislation that dare not mention its name. Please stop this bus, I want to get off!

Frank Brennan SJ 30 October 2013

Fr Brennan, you seem unwilling and unable to explain the difference between the two different sexual behaviorisms between a married gay couple and a married heterosexual couple, to a child. And the reason for which they exist, without causing spiritual trauma to the child. Tell me how you would explain this difference and why - to my children or your nephew, and why the catholic church doesn’t agree to same sex marriage. In short, tell me how would you as a priest, a lawyer, a man and uncle would explain this to you a child. Your answer may help thousands of parents and their children one day, if you get it right.

Karen 30 October 2013

In today's 'the Australian', Paul Kelly takes up Frank's argument and refers to "the same-sex marriage push as an ideology", not a position put by Frank. However, it does seem that ideology rather than human rights lies behind many of those opposing attempts to introduce same-sex marriage laws. To John Frawley re your response to my earlier comment. First, I’m happy to stand by my factual reference to ‘people born homosexual' and suggest that you should take your own advice and “clearly identify your sources” for your assertion that “the vast body of medical and psychological research that discredits any heredity or genetic basis. ” Secondly, your reference to ‘sufferers’ is offensive and made worse when you wrongly attribute use of the word to me: “sufferers (your word, not mine).” For the record, this is what I said: ". . . I would have liked to see some recognition of the genuine distress caused to people born homosexual who are denied the legal recognition of their loving relationship, a relationship no less committed than a heterosexual couple. . . “ John, as you say, “Christ will probably get it right without a lot of help from the likes of you and me!” but that doesn’t absolve us from loving our fellows and seeking social justice.

Peter Johnstone 30 October 2013

Why not get Kevin Rudd back to do another deep and meaningful public forum with ES? I'm sure his word of wisdom on this issue would be the same as the majority of Australians - "Whatevs"

AURELIUS 30 October 2013

PETER JOHNSTONE - Just move on. I was born male and sexual. Whether I was born heterosexual or homosexual is irrelevant because they are both good. I choose to be homosexual - and that's good.

AURELIUS 30 October 2013

"And priests in black gowns Were making their rounds And binding with briars My joys and desires." Not once in this prescriptive essay by Fr. Brennan is the word love mentioned. Love is the well spring of life time unions whether it be between a man and a woman, a man and a man or a woman and a woman. Parliaments should recognize this fact and legislate accordingly. To tell lovers what is good for them as far as marriage goes, smacks of arrogance and arrogance is a trait we citizens are all too familiar with when it comes to those parties we vote for. Pam, thank you for acknowledging the word, and to all you legal junkies, remember Gos is Love.

Garry Evans 30 October 2013

It is an interesting aside to note that this whole issue seems to be predominantly a first world issue - certainly of not much interest to 3rd world and developing countries at present

John Whitehead 30 October 2013

Western democracy is merely a domestic convenience of consumerism.

Sic transit gloria mundi 30 October 2013

And yet the Greek world, with all its absorptions and dispersals and its Odyssean ramifications, is an inexhaustible Pandora’s box of eccentricities and exceptions to all conceivable rule. I thought of the abundance of strange communities: the scattered Bektashi and the Rufayan, the Mevlevi dervishes of the Tower of the Winds, the Liaps of Souli, the Pomaks of the Rhodope, the Kizilbashi near Kechro, the Fire-Walkers of Mavrolevki, the Lazi from the Pontic shores, the Linovamvaki—crypto-Christian Moslems of Cyprus—the Dönmehs—crypto-Jewish Moslems of Salonika and Smyrna—the Slavophones of Northern Macedonia, the Koutzo-Vlachs of Samarina and Metzovo, the Chams of Thesprotia, the scattered Souliots of Roumeli and the Heptanese, the Albanians of Argolis and Attica, the Kravarite mendicants of Aetolia, the wandering quacks of Eurytania, the phallus-wielding Bounariots of Tyrnavos, the Karamanlides of Cappadocia, the Tzakones of the Argolic gulf, the Ayassians of Lesbos, the Francolevantine Catholics of the Cyclades, the Turkophone Christians of Karamania, the dyers of Mt. Ossa, the Mangas of Piraeus, the Venetian nobles of the Ionian, the Old Calendrists of Keratea, the Jehovah’s Witnesses of Thasos, the Nomad Sarakatzáns of the north, the Turks of Thrace, the Thessalonican Sephardim, the sponge-fishers of Calymnos and the Caribbean reefs, the Maniots of Corsica, Tuscany, Algeria and Florida, the dying Grecophones of Calabria and Otranto, the Greek-speaking Turks near Trebizond on the banks of the Of, the omnipresent Gypsies, the Chimarriots of Acroceraunia, the few Gagauzi of eastern Thrace, the Mardaïtes of the Lebanon, the half-Frankish Gazmouli of the Morea, the small diasporas of Armenians, the Bavarians of Attic Herakleion, the Cypriots of Islington and Soho, the Sahibs and Boxwallahs of Nicosia, the English remittance men of Kyrenia, the Basilian Monks, both Idiorrhythmic and Cenobitic, the anchorites of Mt. Athos, the Chiots of Bayswater and the Guards' Club, the merchants of Marseilles, the cotton-brokers of Alexandria, the ship-owners of Panama, the greengrocers of Brooklyn, the Amariots of Lourenço Marques, the Shqip-speaking Atticans of Sfax, the Cretan fellaheen of Luxor, the Elasites beyond the Iron Curtain, the brokers of Trieste, the Krim-Tartar-speaking Lazi of Marioupol, the Pontics of the Sea of Azov, the Caucasus and the Don, the Turcophone and Armenophone Lazi of southern Russia, the Greeks of the Danube Delta, Odessa and Taganrog, the rentiers in eternal villaggiatura by the lakes of Switzerland, the potters of Syphnos and Messenia, the exaggerators and the ghosts of Mykonos, the Karagounides of the Thessalian plain, the Nyklians and the Achamnómeri of the Mani, the little bootblacks of Megalopolis, the Franks of the Morea, the Byzantines of Mistra, the Venetians and Genoese and Pisans of the archipelago, the boys kidnapped for janissaries and the girls for harems, the Catalan bands, the Kondaritika-speaking lathmakers of the Zagarochoria, the Loubinistika-speakers of the brothels, the Anglo-Saxons of the Varangian Guard, ye olde Englisshe of the Levant company, the Klephts and the Armatoles, the Kroumides of Colchis, the Koniarides of Loxada, the smugglers of Aï-Vali, the lunatics of Cephalonia, the admirals of Hydra, the Phanariots of the Sublime Porte, the princes and boyars of Moldowallachia, the Ralli Brothers of India, the Whittals of Constantinople, the lepers of Spinalonga, the political prisoners of the Macronisos, the Hello-boys back from the States, the two pig-roasting Japanese ex-convicts of Crete, the solitary negro of Canea and a wandering Arab I saw years ago in Domoko, the Chinese tea-pedlar of Kolonaki, killed in Piraeus during the war by a bomb—if all these, to name a few, why not the crypto-Jews of the Taygetus? Patrick Leigh Fermor.

Annoying Orange 30 October 2013

Thank you Annoying Orange. I knew I had missed something. I hope you haven't.

Frank Brennan SJ 30 October 2013

In any other world you could tell the difference And let it all unfurl into broken remnants Smile like you mean it and let yourself let go 'Cause it's all in the hands of a bitter, bitter man Say goodbye to the world you thought you lived in Take a bow, play the part of a lonely, lonely heart Say goodbye to the world you thought you lived in To the world you thought you lived in I tried to live alone but lonely is so lonely, alone So human as I am, I had to give up my defenses So I smiled and tried to mean it to let myself let go 'Cause it's all in the hands of a bitter, bitter man Say goodbye to the world you thought you lived in Take a bow, play the part of a lonely, lonely heart Say goodbye to the world you thought you lived in To the world you thought you lived in 'Cause it's all in the hands of a bitter, bitter man Say goodbye to the world you thought you lived in Take a bow, play the part of a lonely, lonely heart Say goodbye to the world you thought you lived in To the world you thought you lived in Say goodbye to the world you thought you lived in Say goodbye to the world you thought you lived in Say goodbye In any other world you could tell the difference

AURELIUS 31 October 2013

What on earth was the point of Annoying Orange's daft Cut and Paste above, which certainly bust the 200 word suggested degree of E-Street moderation ? Where is the substantive 'Comment' to be discovered in such a repetition ? Those words were written by Patrick Leigh Fermor who died 10 June 2011 aged 96. See - http://www.languagehat.com/archives/004275.php who wrote - "… I want to celebrate his enthusiasm for odd historical-ethnic tidbits and his way with English prose, by providing a delicious excerpt from his 1958 book 'Mani'…" : TOO PROLIX !

Copying Agent Orange 31 October 2013

Advocates of marriage equality should note that cl.19(b) of the Same Sex Marriage Bill 2013 debated in the NSW Legislative Council today provides: “A same-sex marriage solemnised or purporting to be solemnised in New South Wales is void if either of the parties subsequently marries some other person under Commonwealth law.” That’s not equality; that’s not marriage. The legal advice has required the State to drop the bar so low to avoid inconsistency with the Commonwealth Marriage Act which covers the field on marriage that what is proposed is a legal arrangement terminable without notice, without a period of separation, and without a court order. In these circumstances, the same-sex marriage is not dissolved; it is completely void. Barry O’Farrell is right. This should be left to the Commonwealth Parliament to be dealt with. Fancy in 2013 proposing that the State Supreme Courts deal with dissolution of same sex marriages and the accompanying issues of property and children while the Family Court continues to deal with the dissolution of marriages and the accompanying issues of property and children. It’s time everyone took a deep breath and regrouped on the issue of a conscience vote in the Federal Parliament.

Frank Brennan SJ 31 October 2013

Hi Fr Frank. Thanks for the ongoing commentary about this. I agree that State and Territory based bills make a nonsense of marriage and these same sex marriage activists are doing considerable harm to their cause. In my view, it does Shadow Attorney Mark Dreyfus QC and some members of the ALP no favours whatsoever endorsing the madness that has taken place in the ACT. One would have to wonder about Dreyfus' credibility as a legal practitioner given his overt endorsement of the ACT in enacting this dogs breakfast. There is nothing by their actions that suggests that they are about enhancing the sanctity of marriage, or even redefining marriage. By their actions they are evincing an intention to destroy it by replacing the concept of marriage as a contract terminable at will. As you point out this, under any objective analysis is not a marriage. Whilst I agree to you with a point about a Conscience Vote (and the Coalition should not be binding their members to a vote in favour of traditional marriage, nor for that matter should the Greens(!)), you will also note, as I indicated in a previous post that a Conscience Vote is not a great barometer of public opinion. The way the numbers in the parliament stack up, even in the event of a conscience vote on both sides, there will be another heavy defeat for any move to have a gender neutral definition of marriage, possibly as heavy as last year (which was 98-42). Whatever the outcome - which will probably just under two-thirds against any redefinition - it will not be an outcome which is reflective of the mood of the community (although I suspect that the community is not ready to embrace the concept either). If the matter of a change to the flag can go to the people, it seems ludicrous that this can't… For supporters and opponents of the current definition of marriage, and from a democratic and legal point of view (which you concurred with), I am of the firm view (and for once, we are in disagreement - which is rare) this matter should not be decided by the political elite. It is something that we all have a stake in.

Neil 01 November 2013

'A marriage under this [ACT] Act ends if either of the parties to the marriage later marries someone else under a Commonwealth law'. This presumably means that an ACT 'marriage' is dissolved at the instant one of the parties marries a third party, currently necessarily of the opposing sex, in a non-ACT jurisdiction. This is a strange type of equality, but perhaps not as striking as 'marriage equality' in the UK, where adultery is a ground for divorce and adultery can only occur with the involvement of a third party of the opposite sex. In describing the situation as 'a dog's breakfast' Fr Brennan might be underestimating the orderliness of our canine companions.

John Vernau 01 November 2013

The High Court will hear the Commonwealth challenge to the ACT Marriage Equality (Same Sex) Act on December 3 and 4.

Frank Brennan SJ 04 November 2013

I have just responded to a private query about why I consider the ACT legislation a dog’s breakfast which fails to accord marriage equality. The ACT Marriage Equality (Same Sex) Act defines marriage in the main dictionary section of the Act in these terms: “marriage, under this Act, does not include a marriage within the meaning of the Marriage Act 1961 (Cwlth)”. The ACT Marriage Equality (Same Sex) Act then amends the ACT Domestic Relationships Act 1994 with another definition of marriage:“marriage means a marriage under the Marriage Act 1961 (Cwlth)”. A marriage under ACT law (ie all ACT laws) should be the one thing. Otherwise we are in for legal chaos especially if one ACT Act defines marriage as “A” and amends another ACT Act to define marriage as “NOT A”.. To me, that’s a dog’s breakfast!! The ACT Marriage Equality (Same Sex) Act provides: 'A marriage under this Act ends if either of the parties to the marriage later marries someone else under a Commonwealth law (including a marriage in another jurisdiction that is recognised by the Commonwealth as a valid marriage)' That’s not marriage equality. It’s not marriage and it’s not equality. A marriage is a relationship which may be dissolved by court order following upon either mutual consent or a fixed period of separation. Under the ACT law the legal relationship under the Marriage Equality (Same Sex) Act is not just dissolved, it is rendered completely void, and if one party simply enters into a marriage recognised by the Commonwealth. I oppose same-sex marriage laws being enacted in state and territory parliaments because they would be either inoperative or disruptive of a national code while providing an unequal form of marriage.

Frank Brennan SJ 06 November 2013

Thank you Fr Brennan SJ for your additional explanation relating to the Canberra "local Council's" muddled 'parliamentary' drafting. In past times, I had a little to do with the Federal Office of the Parliamentary Counsel (if my memory serves me correctly). What was evident then to me, was that the Lawyers who drafted the Bills needed exemplary legal knowledge AND well-thought-out Drafting Instructions from their 'clients' - the Departments acting under instruction from their respective Ministers. "Solutioneering" would simply not work - inventing the ideas while going along, is no substitute for one's having thought through precisely what the desired outcome really is … and here in our most vulnerable ACT (vulnerable to Federal veto) it seems that neither the initial Drafting Instructions, nor the actual Drafting of the Bill, and then (worst of all) the tinkering along the initial Reading stages, and finally the scant 'mandate' of a 9 v 8 Vote, means - YES, a dog's repast - whether it be a breakfast, luncheon, or dinner. The ACT really is in the weakest and the worst 'state' to attempt to break the log-jam of 'marriage equality'. Still More Tears to come … pass the decanter, Brennan, a surfeit of crome yellow calminative … ( Chapter XX )

Crome Yellow Carminative 11 November 2013

The High Court has reserved its decision regarding the Commonwealth's challenge to the ACT's same-sex marriage laws. "The [High C]ourt says it will hand down its decision next Thursday, and in the meantime will allow same-sex marriages to take place in Canberra from Saturday." http://www.abc.net.au/news/2013-12-03/high-court-reserves-decision-on-same-sex-marriage/5132346

High Court RULES ! O.K. ! 03 December 2013

"… Forty-six couples have registered in order to be able to wed this weekend ahead of a decision on Thursday on whether the ACT's same-sex marriage law is valid. Western Australian Upper House MP Stephen Dawson was the first to tie the knot with a midnight ceremony on the lawns of Federal Parliament. …" Source - http://www.abc.net.au/news/2013-12-07/first-australian-same-sex-marriages-take-place-in-act/5142176?section=act

Saturday, Sunday, Monday, Tuesday, Wednesday, void 08 December 2013

The {High} Court held that "marriage" in s 51(xxi) of the Constitution refers to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations. "Marriage" in s 51(xxi) includes a marriage between persons of the same sex. Source - http://www.abc.net.au/news/2013-12-12/high-court-decision-on-act-same-sex-marriage-laws/5152168

Unanimously … [2013] HCA 55 ... 12 December 2013

"Groups like the Australian Christian Lobby should be careful what they wish for. If a referendum on same sex marriage, why not a referendum on (say) the death penalty? If the opinion polls are right, there is no doubt the way that one would go. Or a referendum on excluding boat people from Australia? Or a referendum on euthanasia? There are good reasons for avoiding the populist politics of lawmaking by direct popular vote of the people." What are these "good reasons"?

Bruce Parr 05 March 2014

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