One of the arguments raised in the ongoing discussion here in Australia over “gay marriage” is that the Howard Government's Marriage Amendment Bill 2004 [pdf] imposed an unfair and unnecessary restriction upon the understanding of marriage in Australia. The Bill was quite simple – here's the original text:
Schedule 1—Amendment of the Marriage Act
1 Subsection 5(1)
marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
2 At the end of section 88B
(4) To avoid doubt, in this Part (including section 88E) marriage has the meaning given by subsection 5(1).
3 After section 88E
88EA Certain unions are not marriages
A union solemnised in a foreign country between:
(a) a man and another man; or
(b) a woman and another woman;
must not be recognised as a marriage in Australia
And the revisions were included in the 1961 Marriage Act (so, for example, Section 5 Definitions here).
The question we need to ask, then, is whether this amendment unnecessarily constrained the understanding of marriage in Australia or was consistent with what was then understood.
Probably the first point to begin is the simple observation that no definition existed in the original 1961 Act. It should be uncontroversial to conclude that the definition of marriage at the time of legislation was so universally understood so as not to even require definition. One would assume that that definition was much as set out in the 2004 amendment.
51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: –
(xxii.) Divorce and matrimonial causes;…
So far, so good. The question now arises whether the 2004 amendment was consistent with a shift in understanding in Australia or contrary to it? Helpfully at this point we have a piece of research carried out prior to the 2004 amendment entitled “The High Court and the Meaning of 'Marriage' in Section 51(xxi) of the Constitution” produced by the Laws and Bills Group of the Parliamentary Library. In it we see a brief meta-narrative of the interpretation of marriage in the Australian legal system since the 1961 Act. It shows that there seems to have been a consistent understanding of the term. The comment at the end is interesting:
It is unclear from the judicial consideration of the term 'marriage' in section 51 (xxi) whether same sex marriage would now be given recognition through the common law or through statutory interpretation of the Marriage Act 1961.
Additionally, were the Commonwealth to legislate for the recognition of same sex marriage a question arises regarding its constitutional underpinning. As noted, the High Court's consideration of s. 51(xxi) leaves open whether Parliament can determine the meaning of marriage or whether the term has a fixed intrinsic meaning.
The main argument for a possible change comes not from a shift in understanding of the courts but
It may be arguable that the Commonwealth in reliance on its international treaty obligations, would have a constitutionally valid means of legislating for same sex marriage.
The paper also mentions one interesting case,
The 12 October decision of Re Kevin (validity of marriage of transsexual) which found that a post-operative female to male transsexual had validly married does not affect the current orthodoxy that a marriage has to be between members of the opposite sex.
That case, known as re Kevin, allowed a transsexual (former female) to marry another woman since the judge ruled that “he” was to be considered a man – not least in terms of “brain sex”. Interestingly the judge (full ruling here [pdf]) made the point that he still considered a marriage to be understood in the courts as between a man and a woman – it was just that “Kevin” was to be regarded as a man.
20. Next, the case does not raise any issue about homosexual relationships and marriage. As I have said, transsexualism is different from sexual orientation. It happens that Kevin is heterosexual, but this has nothing to do with this case: the validity of a marriage between a man and a woman is not affected by either party's sexual orientation or preferences.
In the light of all this, it's hard to argue that the 2004 Amendment somehow defined marriage in a way that was contrary to shifts in understanding in Australia. The court had consistently ruled that marriage was heterosexual. That is not to say that they thought it could not be changed in the future as this (the last quoted) opinion in the Research suggests,
McHugh J., in Re Wakim; Ex parte McNally was of the opinion:
The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above. Thus, in 1901 'marriage' was seen as meaning a voluntary union of life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably 'marriage' now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.
So where does it leave the argument? I'd make a few observations:
- It is incorrect to suggest that the 2004 Amendment was, somehow, contrary to the general shift in Australian attitudes. The evidence of the research shows that the courts were consistently viewing marriage in a certain way.
- However, the courts have left themselves open to a futher shift in definition. Were the 2004 amendment to be repealed it is not at all certain that a challenge to that repeal would be succesful.
- Insofar as the courts seek to balance the intent of legislation and ever-changing public sentiment, it seems hard to argue against the conclusion that they have steered a careful and cautious path – aware of gentle movements in our cultural understandings but not prepared to bow to them too quickly.
- If Christians think that a legal challenge to “gay marriage” would be succesful (were the Marriage Act be so amended) they are going to be disappointed.
It's all the more important that we argue this issue clearly and cogently now before the legislation passes. Personally, I think we could see this going before Parliament even next year. We need to have sensible and understandable arguments being made in the coming weeks and months as the issue hits the Labor Party conference soon and then Parliament in the near future. What should that argument be? As I've already suggested it is that any redefinition of marriage needs to be deliberate and well thought through. We need to be clear as to why we are shifting the understanding to it's new place and why not any further. What is the basis for the new definition? Even if this new “understanding” is legislated (as I think it certainly will be) at least we can do our part to make sure it's properly discussed – especially if that discussion is taken out of the courts who have handled it so well in the past.