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Let’s not meddle with the Marriage Act

By John de Meyrick - posted Tuesday, 11 August 2015


If same-sex unions are to be legally recognised in Australia then the least sensible means of doing it is to amend the Marriage Act 1961 in any of the ways currently being proposed, or at all.

It would be far better for same-sex unions to be legally recognised by their own act, with their own definition and to be referred to by their own form of “marriage”.

The Australian Constitution reserves marriage as an exclusive subject for the Federal Parliament. At the time it was written in 1900, and as it remained until December 2013, there was only one concept of marriage known to the Constitution. That was the time honoured understanding of marriage to be a union between a man and a woman.

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When the Commonwealth challenged the ACT Government’s Marriage Equality (Same-Sex) Act 2013, the High Court not only decided that the ACT did not have power to pass such an act, it also held that reference to marriage in the Constitution could be construed to include same-sex unions.

That construction of marriagewas decided nem con (no one opposing it), although duly considered and reasoned by the Court and not just as agreed and sought in submissions by the Commonwealth, the ACT and Australian Marriage Equality Inc (appearing by leave).

Indeed, the Court noted that different kinds of unions described as “marriage” existed throughout the world and that as polygamous unions made outside Australia were deemed under section 6 of the Family Law Act 1975 to be marriage within Australia,  the “juristic concept of ‘marriage’ cannot be confined to a union having the characteristics [only of an heterosexual one]”. The Parliament has the power to legally recognise any kind of “marriage” relationship.

Importantly, the Court did not say anything about amending the definition of marriage; nor did it decide that opposite-sex and same-sex unions were equal or were deemed to be one and the same thing. Only that the term marriage in the Constitution was not immutable, and that within the context of contemporary Australia it was open to the Federal Parliament to make laws for both.

That being so, Parliament has the choice of amending the Marriage Act and the definition of “marriage” to include same-sex unions, or to make a separate act for same-sex unions and to leave the Marriage Act as it is.

There are not only dangers in diluting and broadening the primary definition of marriage based on some notion of “equal love”, but to do so on that basis would be to create a legal fiction that would profoundly alter the concept of marriage for the heterosexual community as well.

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Marriage would lose its primary meaning and be treated in the secondary and general use of that word as the joining or merger of any two things, equal or otherwise – like marriages of ideas, organisations, convenience, et al.

Marriage is much, much more than that. It offers the promise of on-going mortality in a biological union between parents and child; and no matter how true that union may be, to that child, and in the having of that child, the parties are forever genetically bound. That promise and its fulfilment is not attainable by love alone, and no fiction of law can contrive to make it so.

It should also be noted that a survey in 2014 of over 20,000 Australian adult men and women found that 96.5 percent of the entire sample identified as heterosexuals. Only 1.9 percent of males and 1.2 percent of females identified as homosexuals (the rest being bi-sexual).

So any change to marriage laws is about providing for a very small number of the population who may wish to have their same-sex relationship legally recognised. The difficulty is there has never been a unique or generally recognised word for that relationship.

The practical answer is for same-sex unions to be legally recognised by way of their own separate Act with their own definition, being a union of persons of the same gender, and, in order to overcome the lack of an appropriate and unique term for its form of enduring commitment, to provide that whilst a same-sex union does not constitute marriage within the definition contained in Part 1, section 5(1) of the Marriage Act 1961, it shall constitute “marriage” as defined, for the purposes of its act.

There have been several polls taken on the subject in Australia. The degree of support for the legal recognition of same-sex unions varies depending mainly on the question asked. But none has offered the choice between amending the definition of marriage and the recognition of same-sex unions in their own act.

In the resolution of this issue, whether by way of plebiscite or vote by politicians, this alternative should be considered as an appropriate and preferred compromise.

Postscript:

This is a follow-up version of my article, Same-sex unions: there’s more than one choice, which was posted on 9 July 2015. It sets out the legal and pragmatic approach to the subject in contrast to the very fine article by Eric Porter, Gay marriage and the changing concepts of marriage, posted 3 August 2015, which deals with the historical changes in the meaning of love, marriage and family as a social institution. My article also contrasts the compelling article by Murray Campbell, Reasons for changing marriage remain flawed, posted on 10 July 2015, which reinforces the sanctity of marriage and exposes the flawed argument for same-sex marriage based on “equal love”.

Whilst commending those other articles, one must surely concede that we are but voices in a raging wind of whipped up compassion based on an illogical claim of discrimination that is sweeping the western world. A wind of change that will not blow over until it has effectively cowed the public and our lawmakers into creating a legal fiction of social convenience.

That being the situation it is important, even at this late stage of the debate, to inject some rational consideration into the proposal and some fairness for the 96.5 percent of the heterosexual population.

That requires heterosexuals to concede to the fact that same-sex unions, although representing a small percentage of the community and howsoever regarded in nature or on moral grounds, have existed as an aberration of the ideal concept of marriage since marriage became the basis of social order.

It also requires conceding to the fact that same-sex unions are not illegal and, just as marriage came to be legally recognised, so too are there good and proper reasons to legally recognise same-sex unions. (In fact they are already recognised in law for various very practical purposes in such matters as taxation, superannuation, inheritance, etc).

These things being accepted on the part of the heterosexual community, the proponents for the recognition of same-sex unions should accept and be comfortable with having their own “marriage” act and not to expect and demand that the vast majority of the community have the meaning of their marriages redefined to be something they have never been and never will be – just the union of “any two people”.

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About the Author

John de Meyrick is a barrister (ret’d), lecturer and writer on legal affairs.

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