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Fence-sitter seeks balance on same-sex marriage


'Marriage', by Chris JohnstonThe 2020 Summit has put the bill of rights question back on the agenda. Cardinal George Pell has come out fighting, opposing a bill of rights in any form. I am more of a fence sitter — I see pros and cons.

So let me consider an instance of the major problem with bills of rights: some judges are tempted to extend their reach, running ahead of the public in forcing a social agenda.

This month, the Californian Supreme Court became the second State superior court in the US to uphold same sex marriage as a constitutional right protected under the State bill of rights. Four years ago, the Massachusetts court had set the first precedent.

Nine other state and federal courts have, with far less media attention, maintained that traditional marriage laws are still valid, there being a rational basis for distinguishing same sex relationships from traditional marriage relationships.

The Californian Court by a narrow majority struck down a State law which resulted from a citizen initiated referendum, stating: 'Only marriage between one man and one woman is valid and recognised in California.'

The Californian legislature had already passed the Domestic Partner Rights and Responsibilities Act in 2003, which gave gay and lesbian couples the same substantive rights and privileges as married couples.

Here in Australia, we are also debating same sex marriage, but without judges buying into the question. Last month, Robert McClelland, the Commonwealth Attorney-General, announced: 'The Rudd Government is delivering on its election commitment to remove discrimination against people in same-sex relationships from a wide range of Commonwealth laws and programs.'

He added that, 'In keeping with the election commitment, the changes do not alter marriage laws.'

Asked whether the government would permit a marriage ceremony for a same sex couple, he replied, 'No, these reforms won't change the Marriage Act ... the government regards marriage as being between a man and a woman, and we don't support any measures that seek to mimic that process.'

There have been tensions between the Rudd Government and the ACT Government on this issue. On 19 May, the ACT Civil Partnerships Act 2008 came into effect. It provides 'a way for two adults who are in a relationship as a couple, regardless of their sex, to have their relationship legally recognised by registration as a civil partnership'.

For the moment, the major political parties in our Commonwealth Parliament have assessed that the community is happy to endorse a raft of measures guaranteeing there is no financial or other discrimination against same sex couples. At the same time they have decided the institution of civil marriage should be maintained as a relationship between one man and one woman who are not closely related.

There are still many Australians who view marriage as a unique institution involving a man and a woman who are usually open to bearing each other's children. Younger Australians may well develop a different view of marriage, not just because of the greater public acknowledgement of gay and lesbian relationships, but also because of the advances in technology which widen the possibilities for shared parenthood.

The state has a legitimate interest in maintaining social contours that enhance the prospects that children will be born into a family unit where there is a father and a mother, where the genetic, gestational and nurturing parents are one and the same.

In debating bills of rights, we need to consider whether contested social reforms like same sex marriage are best resolved by elected legislators acting on advice from law reform commissions, community lobby groups and committees of experts, or by judges making determinations according to open textured provisions of a bill of rights.

For example, is the issue of same sex marriage which divides the Commonwealth and ACT governments best resolved by the political process playing itself out, or by the High Court making a decision whether the restriction of marriage to opposite sex partners is consistent with the ACT Human Rights Act? Some judges might like to force the social pace by deciding homosexual persons in the ACT have an equality right 'to marry' their partners.

On such social questions we tend to track with equivalent societies like the US, but without the social angst we see presently played out in California, where the recent court decision will flow over into the US presidential campaign and will likely result in yet another citizen initiated referendum negating the court decision.

We need to determine the best constitutional/legal/political process for agitating and resolving this and other hotly contested moral and political issues.

There are opponents of same sex marriage who have no desire to discriminate against same sex couples. Without animus or prejudice, they just do not think that a loving, monogamous same sex relationship is the same as their marriage. They see civil and common law marriage as a social institution for nurturing the next generation. They do not see same sex relationships as being primarily about producing and raising children.

Whichever way the debate on same sex, civil marriage ultimately resolves itself, I cannot see that it would be assisted in Australia by judges becoming involved as the arbiters of what is rational and fair. Meanwhile, those of us who do not live in Victoria or the ACT will be able to watch developments with their new bills of rights and decide whether the benefits outweigh the costs on issues less contested than same sex marriage.

This is an edited extract from Frank Brennan's 2008 Institute of Justice Studies Oration, 'Getting the Balance Right after the 2020 Summit'.

Frank BrennanFrank Brennan SJ AO is a professor of law in the Institute of Legal Studies at the Australian Catholic University and Professorial Visiting Fellow, Faculty of Law, University of NSW.

Topic tags: Frank Brennan, bill of rights, same sex marriage, 2020 summit, anti-discrimination laws



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Existing comments

Why do homosexuals and lesbians want to get married? Their lifestyles are so different from heterosexual relations where marriage is between one man and one woman why do they want to emulate the heterosexual lifestyle in this one area of their lives? I don't believe in discrimination in financial or other matters but the sanctity of marriage in which the prime purpose is to produce children should be maintained

Pat Cannard | 26 May 2008  

Salva caritate, my friend, Frank Brennan's premise is flawed.

As the conservative majority of the Californian Supreme Court correctly determined, human rights and consequent obligations do not arise from social consensus or public policy, nor should they be abrogated discriminatorily by statute.

Here, too, in Australia, where both the common law and consistent constitutional interpretation pivot on the deep principle of equality before the law, basic human rights, including the right to marry, can be protected from discriminatory Commonwealth implementation by the much neglected Section 75(v) of the Constitution.

This places no arbitrary or social policy barrier on the nationality, gender, age, sexual preference, level of ability (or whatever) of those who may go to the High Court to ensure that government does not act to infringe their rights.

Rights in Australia are very essentially THE matter of the Courts.

Terry Laidler | 26 May 2008  

"The state has a legitimate interest in maintaining social contours that enhance the prospects that children will be born into a family unit ....".

You have introduced the state as a stakeholder in this discussion. The postmodern writer Bruno Latour believes that even inanimate objects, such as photocopiers, can be stakeholders in a discussion. As can the system that is being talked about, be itself a stakeholder in the discussion.

Jim Underwood, recently professor of information systems at UTS, got a Ph.D on the above ideas.

From this point of view, then, there is nothing wrong with introducing the state as a stakeholder in the discussion.

What I am wondering is how many possible stakeholders have been left out of the discussion.

For example, there are many kind of possible states one might imagine, as there are kinds of gods one might imagine. Which of these are not being given a hearing?

richard | 26 May 2008  

With regards to Bills of Rights, last year in Canada I was told by an Anglican parish priest that a Bill of Rights and a subsequent judicial decision had led to the ending of hospital chaplaincy. That is very sad and points to dangers that need to be avoided.

John Bunyan | 26 May 2008  

Bob Carr, former premier of NSW, expressed his fears of judicial activism consequent upon the introduction of a Bill of Rights in an article in The Australian.

I share his fears.

Peter Ryan | 26 May 2008  

This article seems to imply that Civil Marriage as it is practiced in Australia is inherently precious and has an elevated status to which mere committed, monogamous same sex partnerships cannot rise.

As a lesbian I do not wish to compare my loving 23 year partnership to a Civil Marriage that, on average, has the shelf life of milk and is so noble that it can be sanctified while jumping out of a plane, sitting on the bottom of a swimming pool or officiated by an 'alien' in a Las Vegas' wedding chapel. I will begin to respect Civil Marriage when and if it is respected by those participating in it.

As for being 'a social institution for nurturing the next generation'. Just take a look at the daily paper for divorce rates, child physical and sexual abuse and the tendency of parents to go to any lengths to avoid supporting the children the father ("Devious fathers dodging child payments" The Age p2 26/5/2008).

To coin a phase from my Women's Lib days - Striving for equality under the 'Marriage Act' show a distinct lack of ambition.

Liz Munro | 26 May 2008  

Keep meddling Frank.

Bill Burns | 26 May 2008  

Frank's article raises some other interesting thoughts. Was the Mabo Case a decision of 'activist judges', or just the High Court interpreting the law, as is its job? Judges can be lablled activist when a decision is unpopular in some groups.

I favour a Bill of Rights as this will help protect our rights, and bring our common law back in line with the rest of the common law countries which have Bills/charters of rights.

Many furphies are put out about the terrible things that will happen, but a quick google search shows there are active pastoral workers in hospitals in Canada.

There is a role for politicians, but also for judges, when the law is clearly out of date and politicians unwilling to deal with it. Such a practice has long occurred in our common law.

Kerry Murphy | 26 May 2008  

Naturally if we go for a bill of rights it may finish up guaranteeing rights the majority of voters favour but which Catholics believe are not rights at all, like same sex marriage, or the right of a woman to kill the child in her womb.

However deciding what goes into a bill of rights will engender a vigorous debate on these subjects anyway, in which Catholics will have their say.

Should we be against a bill of rights because we are afraid of what might be in it in the end when there are other rights which are less controversial and which need urgent definition, like the right to free speech, the right to one's good reputation, the right to make fair comment on a matter of public interest?

Anthony Julian Santospirito | 27 May 2008  

Regardless of one's views of same-sex marriage, let's not fuel myths and misinformation about the potential value of a Human Rights Act for Australia.

A Human Rights Act or Charter, as opposed to a US-style constitutional Bill of Rights, would protect our fundamental rights without judges becoming "the arbiters of what is fair and rational".

Under this model, if parliament considers that a social issue justifies passing laws that infringe a human right, then they could do so but would need to explain how and why. I support such transparency and accountability.

If courts found inconsistencies between laws and our human rights, these would be sent back to the parliament to be resolved. Judges could not overturn laws.

Australia has ratified international human rights treaties and surveys show Australians want our rights adequately protected. We want human rights to underpin our democracy and to promote dignity and respect. A Human Rights Act could be an Australian standard by which policy makers, Parliament, and public authorities measure their actions.

Let's have an open and well-informed debate on the issue.

C Bowra | 27 May 2008  

Marriage is different things to different people. My marriage is a private agreement between me and my husband, to share our lives and support each other. There was nothing in my wedding vows about bearing children. My wedding allowed our families to see us honour each other by declaring our love and commitment. My relationship is celebrated by society and legally recognised.

My brother is gay. He is in a loving, stable, long-term relationship. The relationship is afforded legal protection, but not celebrated by society. It is merely tolerated.

If a relationship is legal, isn’t it legitimate? If it is loving and stable, it is surely a good environment to bring up a child. If it contributes to the health, happiness and wellbeing of our community it should be celebrated. In a free and equal society, that means ALL loving and stable relationships. It is not a question of ‘them’ wanting to mimic ‘us’, but of ridding ourselves of the notion of ‘them’ and ‘us’.

Providing some lesser form of public recognition legitimises discrimination on the basis of sexuality.

There is good reason to legislate on sexual relationships, but there is no good reason to legally elevate one kind of legitimate sexual relationship to a higher status than others. Marriage may be a sacrament for Christians, but it should not be elevated as such by the law. I am not offended by the limitations people put on themselves, but I am offended by any attempt to put those limitations on me - or my brother.

Joanna | 28 May 2008  

I am gay and cannot see why GLBT people cannot be treated the same as the rest of the community. Christ taught us to love one another just as he loves us.

I did not choose to be gay. I am and that's all about it. I wonder how many Australian's would agree with the teaching of the Catholic Church that homosexuality is "an orientation to intrinsic moral evil".

Christ taught us to love. That is my basic human right! The Catholic Church teaches discrimination. The Catholic Church can fire gay employees (who may admit they are either gay or be supportive of gays) and do so quite openly as they have exemption from all anti-discrimination legislation.

GLBT people are following the teaching of Christ to "love one another" as they are only able to do. Their marriage is a witness to that love just as the marriage of the heterosexual couple is a witness to love. The church will also bless the marriage of an infertile heterosexual couple, yet the same church says that the purpose of marriage is mainly for the procreation of children.

There are too many contradictions in the Church’s teaching when it comes to this issue.

Murray J Greene | 29 May 2008  

Thanks Liz Munro for your post - it made my day.

Our relationships, at their best, are founded on love for another person, without reducing them to permanent baby factories. We don't seek eternal life in this life, by pumping out miniatures of ourselves, from a repetitive trick of nature. If this is the substance of "sanctity of marriage", it seems a very cheap sanctity.

Big Star | 09 July 2008  

Equality amongst the people! Is that not what we've been fighting for, for years and years? We are finally starting to make some progress and now this? Love is love. People are unique. This unique love should not be 'frowned upon' as it so seems to be. People's happiness is dependent on this law and changes need to be made. The gay community is no longer a minority and is a growing majority. There is nothing anyone can do, or any law can do to stop it!

Terri Murphy | 26 February 2009  

Totally absurd discussion.. we already have a Bill of Rights in Australia.

ShaneCMuir | 11 October 2010  

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