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'Marriage' should continue to be defined as heterosexual in Australian law

By Nick Ferrett - posted Thursday, 13 May 2004

Crispin Hull and David Skidmore argue in this journal that the institution of marriage is sufficiently loosely defined in the Marriage Act 1961 (Cth) and the Constitution so as to comprehend the inclusion of “gay marriage”. With all respect to both of them, that is plainly wrong.

Marriage has a definition in law: “the voluntary union for life of one man and one woman, to the exclusion of all others”. That definition, accepted in early and more modern times by the High Court (see, eg, Calverley v Green (1984) 155 CLR 242; R v L (1991) 174 CLR 379), developed through the ecclesiastical courts whose traditions are inherited in the equity jurisdictions of modern Australian courts. It is consonant with the Christian definition of that term. That this is so reflects the law’s development in earlier times as an aspect of a devoutly Christian state.

It follows that the reason that the term is not more closely defined in the Marriage Act is that it needs no further definition. The term has a clear meaning in law, and it does not comprehend the union of two same-sex people. To predict that the High Court might take the opposite view is to predict that the High Court would ignore plain and accepted precepts of law, and as it only very rarely and for exceptional reasons does, depart from its own authority. That is unlikely to happen.


One then turns to the argument that the recognition by foreign laws of same-sex unions as marriages means that they must be recognised here as marriages. The Marriage Act, as Mr Hull observes, allows for the recognition of overseas marriages. As the Act itself discloses (in section 88B), the purpose in so doing is to render into law Australia’s obligations under the Convention on Celebration and Recognition of the Validity of Marriages to which Australia subscribed in 1978. Unhelpfully, that convention discloses no definition of marriage. However, the treaty did not develop in a vacuum. It comprehended a similar definition of what marriage was. In any event, given what our law defines to be marriage, the Marriage Act can only be regarded as recognising foreign unions as marriages where they are broadly in accord with our own concept of marriage. It might be argued that the Act does not properly receive the treaty into domestic law, but it cannot be argued that the law accepts the possibility of homosexual unions being regarded as marriage.

Seen in this context, “gay marriage” as some like to call unions between two people of the same sex, is a misnomer. This is not to discount the depth of feelings which two people in such a union have for each other. I have no doubt that they are every bit as intense and loving as those among heterosexual couples. They are simply not feelings felt between two married people.

The corollary of all of this is that the recognition of marriage in international and Australian law reflects a decision to include that piece of morality in the law. Despite the superficially attractive argument often put that morality cannot be legislated, morality is legislated all the time. We prohibit murder, rape, assault, paedophilia, theft, vandalism; all because our morality holds out against those things. “Ah!” you say, “but those crimes are against fundamental human rights and are prohibited everywhere regardless of the prevailing culture.” The difficulty with that is that women are murdered and assaulted all the time on the Subcontinent for embarrassing their families and their husbands. The difficulty with that is that in ancient Greece, paedophilia was something practised within the law. The difficulty with that is that in many states (including America) capital punishment - another name for murder - is practised according to law. I could go on with other examples, but these demonstrate that values which we regard as fundamental have been and remain in contention in other societies.

The moral choice of which I write remains justifiable. As a matter of physiological fact, both natural and (as yet) artificially assisted conception can only be achieved by participation of a man and a woman. Children deserve to be raised by their parents. The only way that this can happen is in the context of a marital relationship (whether de facto or de jure). Morality in legislative choice being a fact, this legislative choice is a good one.

This is not to say that homosexual couples should not have the protections given to those who marry. There should be capacity for adjustment of property interests according to the different contributions which separating members of a couple contributed to the relationship. There should be automatic inheritance under the intestacy rules of succession law. Equally, there should be a reduction in welfare benefits to those living in a domestic relationship in the same manner as heterosexual couples.

There is a lot to be said for supporting those who love each other in their choice of who to love. The world can never be the worse for mature intimate love between consenting adults. Just as much, there is also a lot to be said for maintaining the fabric of a society which, largely through its moral choices, has developed to a level of sophistication and freedom rarely seen in human history. Marriage, and its incident the family, have been integral and admirable institutions woven into that fabric.

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Nick Ferrett is a Brisbane-based Barrister.

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