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 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.

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

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.

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

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”.

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

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

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

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

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.

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

Non-Marriage Recognition The following countries recognise same- sex relationships, but not marriage: FranceGermany DenmarkNew Zealand NorwayBrazil The United KingdomFinland HungaryIceland IsraelItaly PortugalSweden

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.

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