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Same-Sex Marriage

Same-Sex Marriage. An Update on Overseas Developments. Canada: Provinces allow same-sex marriage. Ontario, British Columbia and Quebec courts have held that the Canadian Charter of Rights and Freedoms requires that marriage be extended to same-sex couples

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Same-Sex Marriage

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  1. Same-Sex Marriage An Update on Overseas Developments

  2. Canada: Provinces allow same-sex marriage • Ontario, British Columbia and Quebec courts have held that the Canadian Charter of Rights and Freedoms requires that marriage be extended to same-sex couples • Reason: constitutional right to equality: Art 15(1) • “the dignity of persons in same-sex relationships is violated by the exclusion of same-sex couples from the institution of marriage” • Same-sex couples have been marrying in these provinces since 2003.

  3. Canada: Federal Response • The Federal Parliament proposed a law to recognise same-sex marriage • The validity of the law was upheld by the Canadian Supreme Court • The meaning of the term “marriage” in the Constitution is not frozen to the meaning it had in the 1800s • The Bill has passed the second reading in the House of Commons, 163 to 138

  4. USA: Massachusetts • The Massachusetts Supreme Court held that the Massachusetts Constitution requires recognition of same-sex marriage • Over 1000 same-sex couples were married on the first day the ruling took effect • A constitutional amendment has been proposed to reverse the Court’s ruling and substitute “civil unions” instead. The earliest it can pass is November 2006.

  5. USA: California • The State Superior Court ruled that denying marriage to same-sex couples is unconstitutional. The decision is being appealed. • A Bill is before the State legislature to allow for same-sex marriage • A constitutional amendment is being sought to prohibit same-sex marriage

  6. USA: New York State • The NY Supreme Court ruled that denial of same-sex marriage is unconstitutional • “Rote reliance on historical exclusion as a justification improperly forecloses constitutional analysis and would have served to justify slavery, anti-miscegenation laws and segregation”.

  7. USA: Connecticut & Vermont • Legislation defines marriage as the union of one man and one woman • The legislation also provides for “civil unions” for same-sex couples

  8. USA: Nebraska • State constitutional amendment preventing same-sex marriage and civil unions passed. 70% approval. • US District Court held the amendment to be unconstitutional under the equal protection clause of the US Constitution: • Because it precludes access to the democratic legislative process to seek legal reform

  9. USA: Federal Response • In 1996 the Defence of Marriage Act was passed • No State shall be required to give effect to a law of any other State with respect to a same-sex "marriage." • The words "marriage" and "spouse" are defined for purposes of Federal law. • A constitutional amendment has been suggested • President Bush: the amendment is necessary because of attempts by "activist judges" to redefine marriage

  10. The Netherlands & Belgium • The Netherlands and Belgium allow full same-sex marriage • Extended through legislation, not judicial decision

  11. South Africa • The Supreme Court developed the common law definition of marriage so as to conform with the constitutional Bill of Rights. It now includes same-sex marriages. • Reason: “The capacity for commitment and the ability to love and nurture and honour and sustain transcends the incidental fact of sexual orientation” • However, until the executive takes action under the Marriage Act, the Court’s decision does not operate.

  12. Spain • Parliament is considering a Bill to allow for same-sex marriage • The Bill has passed the lower house • It is expected to pass the upper house • The Vatican has criticised the Bill

  13. Non-Marriage Recognition The following countries recognise same-sex relationships, but not marriage:

  14. Relevance to Australia? • Trend internationally is towards recognition of same-sex marriage • And towards recognition of same-sex relationships in other ways (eg registered partnerships) • States in Australia are moving in these directions • The Commonwealth is moving backwards; similar to the US federal government. Different from other liberal, developed nations.

  15. Do we want same-sex marriage? • Yes case: • Equality • Human dignity • Liberty/Freedom of choice • No case: • Marriage an inherently problematic institution • Recognising same-sex marriage will inevitably force same-sex relationships into a heterosexual model • Removes the freedom gay men and lesbians have to define their own relationships

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