STRENGTHENING THE LEGAL FRAMEWORK OF MARRIAGE AS THE UNION BETWEEN A MAN AND A WOMAN

The fundamental definition in Australian law of marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” is under attack from a number of directions.

1. The Australian Democrats and the Australian Greens have already moved and voted for an amendment to the Marriage Act to change this definition to allow marriage between two men or between two women.

2. A same sex couple who have been married in a jurisdiction which recognises such marriages, e.g. Canada or Denmark, may seek to have an Australian court recognise their marriage as valid. Given the unpredictability of the Courts there is no certainty as to the outcome of such a case. On February 4th, Jason McCheyne and Adrian Tuazon, two Australian citizens living in the Melbourne suburb of Brunswick, announced their intention to apply to an Australian court, probably the Family Court of Australia, for recognition of their same sex marriage registered in a civil ceremony at Toronto City Hall in Ontario, Canada last month.

On the same day the Supreme Court of Massachusetts ruled that not even a system of civil unions for same sex couples will satisfy what 4 of the 7 justices say is the requirement of the Massachusetts Constitution that same sex couples have a right to be married.

3. A same sex couple may apply to be married in Australia and when refused may seek judicial relief as did the same sex couples in Ontario. Notwithstanding the common law definition of marriage, the Constitution and the Marriage Act 1961, it is not impossible that an Australian court may follow the precedent set by the Ontario Supreme Court in changing on its own authority the definition of marriage.

In this regard, it is worth noting that two justices of the Australian High Court, Kirby and McHugh, have already observed in obiter dicta in cases unrelated to marriage that words in the Constitution may change their meaning, citing as an example the possibility that the word “marriage” as used in Section 51 of the Constitution may today be understood to include same sex marriages and no longer necessarily be limited to marriage between a man and a woman, as would have been the universal understanding in 1901.

4. The decision of the Full Bench of the Family Court to change the common law test for whether a person is a man or a woman to incorporate psychological factors, in Attorney-General (Cwth) v Kevin and Jennifer [2003] FamCA 1074 94 (21 February 2003), has already undermined the meaning of marriage in Australia. The test set by the Court is so loose it may be capable of being expanded even when neither party is a transsexual. For example, it may be sufficient for one of a male homosexual couple to define himself as taking the part of the ‘wife’ or ‘woman’ in the relationship for a Court to recognise him as a ‘woman’ for the purpose of marriage.

What are the fundamental reasons for which we would want to oppose this move for legal recognition of same sex marriage?

“When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean - neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master - that's all." (Lewis Carroll ‘Through the Looking Glass’).

Nominalism v Realism

In the Middle Ages there was a key philosophical debate between two schools of thought - Nominalists and Realists. Nominalism - as the word suggests- is the belief that there are no fixed realities underlying names. Names are linguistic conventions which can be changed at whim. Realism is the contrary belief that names express a genuine knowledge of real things.

What is marriage? What is a man? What is a woman? Nominalists and realists will give very different answers to these questions

Realists say that marriage is the voluntary union between a man and a woman to the exclusion of all others voluntarily entered into for life. Marriage is a real thing, an actually existing bond between spouses. It is a social institution that is universal, that is prior to the State, that is the foundation of the family and that corresponds to the real well-being of men, women, children and societies.

Nominalists, like the justices of the Supreme Courts of Ontario and Massachusetts, and like Justices McHugh and Kirby of our High Court, say that marriage has no fixed meaning. They say that using their raw judicial power they can, like Humpty Dumpty, simply declare that two men may marry each other or two women may marry each other. Marriage, they say, is not a given reality but a fluid concept that we can expand, stretch or redefine as we please.

Similarly, Justice Nicholson and his colleagues from the Family Court of Australia, have, in true nominalist form, redefined the word “man” to mean not a biologically male member of the human species but any person who thinks he is a man, or who is treated by others as if he is a man.

If marriage can be redefined in this way and nothing is done about it, then marriage will lose its power to order the relationships of men, women and children in a way that contributes to human flourishing and social well-being.

Marriage is already under threat from the availability since 1975 of unilateral, no fault divorce and from the trend towards cohabitation. If marriage loses its cohesion by being stretched to accommodate same sex couples then it may rapidly lose its appeal to ordinary men and women.

Marriage, which is universal across millennia and across cultures, exists to regulate the sexual relations of men and women in a way that favours social stability and binds men, in particular, to their children by binding them to the mother of their children.

Strong societal support for marriage, including legal support, is of benefit first of all to children, then to married men and women, and finally to society in general.

Same sex marriage necessarily lacks the key elements that make marriage what it is, namely sexual complementarity and the natural potential for conceiving children.

For society and the law to endorse same sex marriage is either to abandon all idea of a connection between marriage and children – in which case why should the State be involved at all in regulating essentially private adult relationships? – or to openly tolerate the deliberate bringing of a child (through surrogacy, adoption or – in the case of lesbians - artificial reproductive technology) into a fatherless or motherless family. This is clearly inimical to the well-being of the child. The Congregation for the Doctrine of the Faith recently called it a “cruel deprivation”.

Gay activist Daniel Harris reviewing Andrew Sullivan’s “Same Sex Marriage: Pro and Con” writes:

“For us, gay marriage is like a lunch counter where homosexuals aren't allowed to dine and where we therefore fully intend to stage a lengthy sit-in, to park ourselves down right beneath the noses of the exasperated waitresses until they pull their pencils from behind their ears and take our orders. And yet please don't mistake our eagerness to sit at this counter as a sign that we like the food. Please don't insist that we see this fast-food joint as a four-star restaurant that merits our unqualified respect.”

What Harris most despises about marriage is that it limits promiscuity. It is clear that gay activists having forced their way into the insititution of marriage are also intent on dismantling its other key elements, including sexual exclusivity. They want marriage – but on their terms.

We are proposing that a bill to amend the Marriage Act 1961 be introduced to Federal Parliament.

(1) incorporate into Statute Law the existing common law definition of marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
(2) incorporate into Statute Law the common law tests for whether a person is a “man” or a “woman”, based on biological realities – chromosomes, gonads and genitals - , which prevailed until the Full Bench of the Family Court changed this test in Attorney-General (Cwth) v Kevin and Jennifer [2003] FamCA 1074 94 (21 February 2003) to allow psychological and social factors to override biological realities.
(3) entrench the definition of marriage by requiring a vote of electors of the House of Representatives on any proposal to change or repeal the definition. This provision is based on the provisions of the Flag Amendment Act 1998.
(4) ensure that foreign marriages that are not in accord with the new statutory definition of marriage are not recognised as valid in Australian law.

(1) Marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

(2) For the purposes of this section, the only factors to be taken into account in determining whether a person is a man or a woman are:
1. (a) whether the person has male or female chromosomes;
2. (b) whether the person has male or female gonads; and
3. (c) whether the person, at birth, had male or female genitals.

(3) This section may only be amended or repealed if , and only if,
1. (a) a proposal to do so is submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives; and
2. (b) the proposal is supported by a majority of all the electors voting.
(4) The form and manner in which a proposal in accordance with subsection (3) is submitted to electors, and the manner in which a vote on the proposal is taken, are to be as the Parliament prescribes.

(5) In this section: Territory means any Territory referred to in section 122 of the Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.

(2) (aa) the parties to a marriage were other than a man and a woman as defined in Section 5A of this Act.

(2A) Notwithstanding subsection (1) a marriage solemnized in a foreign country, shall not be recognized in Australia as valid if the parties to a marriage were other than a man and a woman as defined in Section 5A of this Act.

Subsection (1) incorporates into Statute Law the existing common law definition of marriage as formulated in Section 46 of the Marriage Act 1961. The purpose of this subsection is to preserve the fundamental nature of marriage in Australian law.

Subsection (2) incorporates into Statute Law the common law tests for whether a person is a “man” or a “woman”, based on biological realities, which prevailed until the Full Bench of the Family Court changed this test in Attorney-General (Cwth) v Kevin and Jennifer [2003] FamCA 1074 94 (21 February 2003) to incorporate psychological factors.

Subsections (3)-(4) seek to entrench the definition of marriage by requiring a vote of electors of the House of Representatives on any proposal to change or repeal the definition. This subsection is based on the provisions of the Flag Amendment Act 1998.

This amendment ensures that foreign marriages that are not in accord with the definition of marriage in Section 5A are not recognised as valid in Australian law.

This amendment ensures that foreign marriages that are not in accord with the definition of marriage in Section 5A are not recognised as valid in Australian law notwithstanding the provisions of Section 88E(1) regarding the recognition of foreign marriages under the common law rules of private international law.