Gay Marriage Case Study Australia Llc

All that needs to be changed to make same-sex marriage legal is a tweak to the Australian Marriage Act, which defines marriage as between a man and a woman.
Prime Minister Malcolm Turnbull says that could happen by Christmas but conservative politicians are pushing hard for extensive religious protections in any bill legalizing marriage equality, to shield "no" supporters and Christians, which could stall the bill's progress.
"Protecting fundamental freedoms -- freedoms such as parental rights, freedom of speech, freedom of religion and conscientious objection will be vital to alleviate the valid concerns of millions of Australians," vocal same-sex marriage opponent Liberal Party Senator Eric Abetz said in a statement after the result.
In total, 61.6% of Australians voted in favor of changing the definition of marriage to include same-sex couples, according to results announced Wednesday, while 38.4% voted against.
More than 12 million people cast their votes, a turnout of 79.5%, and the "yes" vote won a majority in every state and territory, according to the Australian Bureau of Statistics.
"They voted yes for love, and now it is up to us here in the Parliament of Australia to get on with it, to get on with the job the Australian people have tasked us to do," Turnbull said Wednesday morning.
Australia has long lagged behind the rest of the world on marriage equality, which has already been passed into law in most English-speaking countries.
Pointing to years of strong polling in favor of same-sex marriage, opposition parties had argued for Parliament to legislate without a postal vote or referendum.
"I feel for young people who had their relationships questioned in a way I wouldn't have thought we would see ever again, but nevertheless what this marriage equality survey shows is that unconditional love always has the last word," Labor leader Bill Shorten said Wednesday.

Marriage legislation to be introduced

The result of the survey, conducted by the Australian Bureau of Statistics, was non-binding and, in theory, the Australian Parliament doesn't need to act on it.
However, Turnbull said Wednesday he would keep his promise to hold a free vote -- also known as a conscience vote -- on a bill to legalize same-sex marriage.
A conscience vote means politicians can vote with their electorates or their own opinions, rather than following the usual strict adherence to voting with their party.
Same-sex marriage campaigners say they're confident they have the numbers in the Australian Parliament to pass the legislation.
"The challenge has never been the numbers, we've always had a majority in (this) parliament on marriage equality, just as there's been a majority in the population. The problem has been the will of politicians," Tiernan Brady, executive director at the Equality Campaign, told CNN.
The most popular bill under consideration, written by governing Liberal Party Senator Dean Smith and supported by the opposition Labor Party, was introduced into the Australian Senate late on Wednesday afternoon, just hours after the result, and is due to be debated Thursday morning, a spokesman for Senator Smith confirmed to CNN.
It allows for same-sex marriage but includes religious protections for those who conduct marriages but don't want to officiate LGBT ceremonies.
"As a result of this clear win, (the 'yes' side) have got the numbers and they've absolutely got more momentum than they might have had, had it been a close result," University of Western Australia professor of Politics Peter Van Onselen told CNN.

Conservatives push for protections

Conservatives are expected to fight hard for religious protections in any same-sex marriage legislation.
A second bill, written by Liberal Party Senator James Paterson, was originally touted by conservatives and "no" advocates as an alternative to Smith's.
That bill would have offered business and service providers legal protection if they chose to deny wedding services to same-sex couples.
Paterson announced Wednesday he wouldn't be introducing it to the Senate, but it gives an indication of the kind of religious protections conservatives might push for.
Amy Maguire, senior lecturer in International Law and Human Rights at the University of Newcastle, said Paterson's bill would have applied to "hotels, photographers, florists, bakers and hire car drivers".
"The bill would also permit parents to withdraw children from classes if content is inconsistent with a 'relevant marriage belief' or 'relevant belief'," she wrote on the Conversation website.
Paterson said in a Facebook post after the result he would push for "amendments" to Smith's bill instead, while former Australian Prime Minister and prominent "no" campaigner Tony Abbott said Smith's bill still needed to be "improved."
"I look forward to a parliamentary process that improves (the bill) to implement same-sex marriage with freedom of conscience for all, not just the churches," he said.
Van Onselen said conservative politicians could play a long game and allow the legislation to be passed by Christmas, with the aim of seeking to amend the law in future.
1. Introduction and Background

At the outset, credit needs to be given to two people who had a large role to play in the team efforts put forward in Tasmania to defeat the Tasmanian Same-Sex Marriage Bill 2012 – Christopher Brohier of the Adelaide Bar and Guy Barnett, former Tasmanian Senator. Guy Barnett was the convener of the Save Marriage Coalition (SMC), a coalition of several church, community and business groups that were behind the submission presented on their behalf. Christopher Brohier was the person who first recognised that no lawyers were presenting the other side of legal and constitutional arguments on the issue of same-sex marriage – namely that there were legal impediments that were fundamental.

Guy Barnett assembled a number of arguments against the Bill that were presented to the Tasmanian Legislative Council on the eve of the vote of the bill, 26 September 2012. As part of the SMC team, Mr Brohier and I, along with University of Tasmania legal academic, Michael Stokes, had the more limited role of presenting the legal and constitutional arguments on behalf of coalition members. Those arguments were supplemented by a letter from the retired Chief Justice of Tasmania, the Honorable W. Cox and opinions that had been given by Professor Geoffrey Lindell of Adelaide, Melbourne and ANU law schools and Dr Augusto Zimmerman of Murdoch University law school.

Although I will present the ten arguments that Mr Barnett assembled on behalf of the SMC for its submission, Mr Brohier and I, with Michael Stokes, can only take responsibility for the legal aspects of that submission.

The SMC was given the opportunity to appear before the Tasmanian Legislative Council sitting as an entire council in committee. The object was to brief members of the Legislative Council on the Bill, which the SMC strongly opposed.

Much of the text of the SMC submission is used in this edition of my remarks. I also make some other interpolations.

It will become apparent that Australia’s constitutional structure, provides an important set of checks on legislative proposals and that there are real questions as to where Australia might be without those constitutional protections.

Before presenting a summary of the key arguments used in Tasmania, I make some preliminary observations:

• First, it is regrettable that our tenor of public discourse in Australia has degenerated into the ad hominem attack upon those with whom there is disagreement. Too often and too readily there is name calling instead of dealing with the issue. Opponents are vilified and denigrated so readily that the debate quickly becomes personal, shrill and vicious. Points under debate and relevant facts become secondary. Descriptions like “bigot”, “fanatic”, “homophobe” “misogynist” and “denier” serve no useful or proper purpose in the dialectic of informed argument. And public discourse does not need to be like that. Witness how the process by which question time is conducted in the House of Commons. Questions on notice are allocated numbers. The opposition pose the question by announcing the number. Answers respond to the questions rather than the questioner or their personality. Whatever else may go wrong in Westminster, this example of civil conduct of debate shows that it can be different from the current poor level of discourse.

• Secondly, it is a misconception to say that “equality” must necessarily mean “identity”. Not all protein needs to be called meat in order for them to be recognised as having the same nutritional value. Not all relationships need to have the same name in order to attract equal recognition in law.

• Next, it is scarcely possible that a new right be introduced without it in some manner or other changing existing rights or freedoms. Legislators need to carefully consider the impact upon existing rights, such as freedom of speech and freedom of religion.

• Finally, the constitutional argument against state based same-sex marriage can be summarised in the following propositions:

  • Section 109 of the federal constitution provides that if there are two otherwise valid state and federal enactments, the federal law, if it “covers the field” will render the state law invalid to the extent of that state law’s inconsistency.
  • Next, in 1961, the Marriage Act was passed federally with the intention of having a single marriage law for Australia, with only very limited exceptions relating to the registration of marriages. By this enactment, the federal parliament “covered the field” on the topic of marriage.
  • In 2004, the Marriage Act was amended to contain a definition of marriage – the union of a man and a woman to the exclusion of all others, voluntarily entered into for life – and to prohibit recognition of same-sex marriages contracted overseas. This came at a time when state based same-sex marriage laws were not in contemplation. By this enactment, the federal parliament “covered the field” on the topic of the definition of marriage.
2. Key Arguments

What follows is a combination of the text of the SMC submissions and my observations. I focus principally on the legal arguments. There were ten arguments in all.

2.1 First Submission: Two Broken Promises:

First, the government went to the last Tasmanian state election promising not to introduce same-sex marriage. The government had no mandate for change. At an event hosted by the Australian Christian Lobby at the University of Tasmania on 15 February, 2010 Premier David Bartlett said “The Commonwealth Act only permits marriage between a man and a woman and we would not be lobbying or moving to change that”. At that event Premier Bartlett committed the Labor party to uphold marriage as between a man and a woman and confirmed it was a federal issue and not a state issue.

Premier Giddings subsequently recommitted to this. On 5 December, 2011 ABC news reported that Premier Lara Giddings said she had always supported legalising same-sex marriage but did not think state legalisation (sic) was possible under constitutional law: “Legal advice we get back from the solicitor-general is that you can’t do it here in Tasmania alone, that it is an issue under the Australian Constitution.”

“The Australian Marriage Act is a federal piece of legislation and at the state level, you can’t go it alone.”

“I don’t really want to go out there on this issue and have the Australian Government take us to the Federal Court, to the High Court, and be spending money on legal action when I’ve got strong legal advice of my own to say it cannot be done.”

An observation that should be made is that up to the date of the submissions made to the Tasmanian Parliament, the proposals at both federal and state level for same-sex marriage were put mid-term, without it having been put to the electorate. This seems to be the cost of coalition governments with minor parties dictating an agenda as the price for power.

2.2 Second Submission: Constitutional matters

The weight of legal opinion saying the Bill was unconstitutional was overwhelming. Even Premier Giddings as noted confirmed that Tasmania’s Attorney-General believed it to be so. The SMC urged the Legislative Council members to obtain and peruse that opinion. In addition, to support our position we provided to the members of the Legislative Council, with his permission, a letter to them from the Honorable William Cox AC, RFD, ED, QC, former Chief Justice of the Supreme Court of Tasmania and former Governor of Tasmania in which he pointed to the primacy of the federal Marriage Act, the costs of High Court litigation, the flaws in the bill, the precedent for the further erosion of marriage and the rights of children. He urged them to vote against the Bill. Mr Cox said the legislation “would create a legal minefield in respect of rights and make Tasmania a legal laughing stock.”

Professor Greg Craven, Vice-Chancellor of the Australian Catholic University, said “by definition …the field covered by the law is the whole possible field of ‘marriage’, and an inconsistency could be presumed to arise between the Commonwealth law and the proposed Tasmanian legislation. This would render the latter inoperative to the extent of the inconsistency under section 109 of the Constitution.”

Dr Augusto Zimmerman, Senior Lecturer in Constitutional Law and Associate Dean at Murdoch University in WA also provided a legal opinion concluding that “…if a State or Territory passes a same-sex marriage law such Act would be struck down by the High Court as inconsistent with the Commonwealth legislation.”.

Christopher Brohier and I also provided an opinion on the Tasmanian Bill.

In our opinion it seemed clear that the Commonwealth Marriage Act 1961 operates to create a code in relation to the institution of marriage in Australia. The then Attorney-General Sir Garfield Barwick said the purpose of the legislation was to “…produce a marriage code suitable to present day Australian needs”.(1) It was apparent that at least one purpose was to rid the legal landscape of the different pieces of state legislation on marriage: “The bill would replace this diverse body of statutory law and render unnecessary any resort to the rules of private international law to determine, in the Commonwealth or any Territory, the efficacy and validity of a marriage solemnised or a legitimation effected within the Commonwealth and the Territories to which the bill applies…”(2) In our view these observations support the argument that a Commonwealth code in the legislative field of “marriage” was created by the passage of the Marriage Act.

The first question to be considered is if the Bill were passed into law would it be inconsistent with a law of the Commonwealth and therefore, to the extent of the inconsistency, be invalid pursuant to Section 109 of the Constitution.

The High Court has developed two tests to determine whether a state law is inconsistent with a Commonwealth law.

The first is whether there is direct inconsistency between the two laws. In Victoria v The Commonwealth (1999) 197 CLR 61, Dixon J stated that “(W)hen a State law, if valid, would alter, impair or detract from a law of the Commonwealth Parliament, then to that extent it is invalid.”. The test is would the Tasmanian Bill “alter, impair or detract from” the operation of the Commonwealth Marriage Act. In our opinion there was a strong argument it would detract from the creation of a single legislative code created to deal with marriage. The actual and direct impact of the Marriage Act is to establish one regime for marriage in Australia. The Tasmanian bill sought to alter that regime. It also sought to effect the universal operation throughout Australia of a code in relation to marriage by creating an enclave in Tasmania for same-sex marriage and in so doing would impair and detract from the Marriage Act. Further the Tasmanian bill sought to provide a recognition for state same-sex marriages that has been forbidden with respect to foreign marriages by section 88EA of the Marriage Act. For these reasons we were of the opinion that if the Bill passed it would be found to be inconsistent with the Marriage Act.

Professor Geoffrey Lindell, in relation to a similar Tasmanian Bill in 2005, was of the view there was a direct inconsistency between that bill and the Marriage Act and that opinion fortified our view.

The second test is whether the Commonwealth law evinces an intention to “cover the field” and so an indirect inconsistency is created. In our view there is a very strong argument that the Marriage Act covers the field in relation to marriage. It sets up a complete regime in relation to marriage in Australia and is intended as a complete statement of the law in Australia. The Tasmanian Bill would have entered the same field and so detracted from the operation of the Marriage Act and therefore would likely to be held invalid.

Section 6 of the Marriage Act does preserve to states certain power in relation to marriage, but that is restricted to the registration of marriages as opposed to their solemnisation. If anything this provision strengthens our argument as it strongly implies, by the absence of an express preservation in respect of solemnisation that any state powers for creating a new and alternative regime for solemnisation of marriage are not preserved.

It could be argued that section 88EA of the Marriage Act which expressly repudiates foreign same-sex marriages but not domestic same-sex marriages leaves room for states to legislate in relation to domestic same-sex marriages. But there was no need for the Marriage Act to deal with domestic same-sex marriages as marriage had been defined as between a man and a woman and therefore there could not be any domestic same-sex marriages.

A further point is that if the Tasmanian Bill were to operate to recognise foreign same-sex marriages it would be directly inconsistent with section 88EA. If it did not then it would have begun the very fragmentation of the concept of marriage that the Marriage Act seeks to avoid. It would have created three diverse species of legal marriage in Tasmania: marriage under the Marriage Act, recognised in all states and Territories and internationally; a form of same-sex marriage recognised only in Tasmania; and internationally contracted same-sex marriages not recognised in Tasmania but in all respects appearing the same as those contracted in Tasmania. The validity of any same-sex marriage in Tasmania would have invited inquiry as to the place of its being contracted, an inquiry the Commonwealth presently precludes. The intention of the Commonwealth Marriage Act is that there be only one legally recognised form of marriage in Australia.

For current purposes we consider it is sufficient to observe firstly that to speak of “heterosexual” marriage in Australia is a legal tautology and cannot provide logical legal space nor foundation for the concept of any other type of marriage – homosexual or other. Secondly, we also consider that the multiple state or territorial versions of a new legislative form of marriage – say in Tasmania, South Australia or the ACT – would be apt not only to cause confusion and dilution of the currently legislated institution but would run counter to the apparent legislative intent of the Marriage Act, which appears to have been to codify a single national law on the topic of marriage, leaving space for other legal relationships that are not marriage as defined.

Both of these considerations add further weight to the opinion that we expressed of the likely unconstitutionality of the Tasmanian Bill if passed into law.

2.3 Third Submission: a Federal Matter

The submission made to the Tasmanian Legislative Council was to the effect that any legislation on the subject of same-sex marriage is a federal matter that should be left to the federal Parliament. The submission went on to point out that the federal Parliament had spoken on the issue with a convincing majority opposing.

Referendum

Mr Brohier and I have expressed in submissions made to committees of both the House of Representatives and the Senate that there were real doubts about the extent of the federal head of power extending to permitting same-sex marriage. Even supporters of federal legislation on the subject seem to accept that it is not free of constitutional doubt. Their argument at both state and federal level seems to be one of “let’s try and see”.

Our argument has been that this is not a responsible approach to legislation. To put the matter beyond doubt, an amendment to the Constitution would be the safest and most responsible course.

We have argued that in the circumstances of legal uncertainty surrounding both federal and state legislation, the appropriate course is to go to the electorate. A referendum under section 128 of the Constitution must be the proper and constitutional course to advance such a legislative and social change of great importance to large sections of the community as the redefinition of marriage. It would also avert the inconvenience and substantial costs of inevitable constitutional challenges on aspects of any state same-sex marriage bill passed, challenges in relation to:

  • Validity of the marriage;
  • Property and financial disputes;
  • Potential child access disputes; and
  • The position of persons contracting a state same-sex marriage in one state but resident in another, or resident overseas in jurisdictions not recognising same-sex marriage.

It would be an undesirable legislative and social outcome for the legislation to be passed and overturned. The referendum is the mechanism laid down by the Constitution to test the will of the people and provide certainty on such issues, particularly when a code such as the Marriage Act constitutes has been in force for more than 40 years and the institution of marriage has had the same form since times preceding federation. Referenda and plebiscites have been held to ascertain the will of the people on a variety of subjects before – on aboriginal citizenship and voting rights, casual vacancies in parliament, the National Anthem, the republic and the retirement age of judges. It allows a democratic voice and brings the debate out of the corridors of the academy and halls of power and into the public square.

If the touted health and special benefits are in fact as great as claimed and if community support is as strong as suggested, the cost of permitting the electorate speak through a referendum must be a small price to pay.

2.4 Fourth Submission: Serious Flaws in the Bill

The Tasmanian Bill was seriously flawed and would not have achieved what its proponents were suggesting it would. For example, a same-sex marriage solemnised in Tasmania would have been unlikely to have been recognised elsewhere in Australia. Professor Twomey of the University of Sydney said: “It might confer on the parties to a same-sex marriage the status of ‘married’ for the purposes of the Tasmanian legislation but it is most unlikely that they would be regarded as legally ‘married’ for the purposes of the Commonwealth law or under the law of any state and would therefore not attract any legal benefits or status accorded to a married couple.”.

Mr Brohier and I have argued that the states, in law, have on one view always lacked legislative competence to create a new form of marriage. By virtue of section 106 of the Constitution state constitutions are “subject to this Constitution.” There is an argument that the reposing of legislative powers in relation to marriage granted to the Commonwealth concurrently with the states by section 51 (xxi) means a union between a man and a woman as this was the only definition of marriage in 1901 and the 1984 amendments to the Marriage Act were merely declaratory of that position that obtained as part of the common law of the Constitution. Therefore any state same-sex marriage legislation would arguably be beyond the legislative power and competence of the state.

We were further of the opinion that the Tasmanian Bill created inconsistency in relation to purporting to set up a regime to deal with maintenance and property matters arising in relation to same-sex marriages solemnised under the Bill. The Tasmanian Commonwealth Powers (De Facto) Relationships Act 2006 referred powers in relation to financial matters between de facto partners (defined to include “marriage-like relationship(s) between two persons”) to the Commonwealth. The Commonwealth Parliament has exercised the powers conferred on it by the Tasmanian Act in enacting the Commonwealth Family law (De Facto matters and Other Measures) Act 2008. The Tasmanian Same-Sex Marriage Bill 2012 in purporting to set up a different regime in relation to property and maintenance entered a field covered by the Commonwealth Act and so was likely to be inconsistent and therefore inoperative under section 109 of the Constitution. At the very least, it could operate as an implied repeal of the Tasmanian referred powers legislation. This would lead to yet further legal uncertainty and complexity.

2.5 Fifth Submission: High Court Litigation Costs

As the Honorable William Cox said; “… the costs of an unsuccessful defense (in the High Court) to … a challenge (to the Tasmanian Bill) would be considerable and not confined to those incurred by the state of Tasmania but would (include) the costs of the party challenging those intervening.” He made the point that “ … the suggestion that a High Court challenge will not be expensive because the Solicitor-General, who is already on the payroll, will be instructed to argue against it is disingenuous.” Referring to the Premier’s Second Reading Speech he said “…the Premier does not address the issue but just shrugs it off with the proposition that only time and the High Court will resolve it. True it is foolish to enact legislation which has a strong chance of being declared invalid.”

Mr Brohier and I provided separate advice on the likely costs of litigation before the High Court, particularly in the case of a loss for the state of Tasmania. We concluded that on a number of potential scenarios, that costs could range between the tens of thousands of dollars and in excess of $1 million for an unsuccessful party.

2.6 Sixth Submission: Marriage is a bed-rock institution worth protecting

Marriage between a man and a woman is a pro-child bed-rock institution worth preserving. Marriage provides an umbrella under which children are nurtured and grow. Same-sex marriage denies children the right to both a mum and a dad. It means children have no inherent right to a relationship with their natural brothers, sisters, cousins and the broader family. Marriage is designed to provide the optimal well-being for children and society. Marriage as between a man and a woman is an objective natural reality that reflects the biological and complementary nature of motherhood and fatherhood. Broadening the definition of marriage to include those of the same-sex is not a tweak or a minor amendment. It is a massive and fundamental change which will turn on its head the definition we have long known. This fundamental change will lead to substantial and radical consequences we have not even begun to explore.

Dallin H Oaks recently in a talk entitled “Protect the Children” said of his years of service on the Utah Supreme Court: “Of the utmost importance to the well-being of children is whether their parents were married, the nature and duration of the marriage, and, more broadly, the culture and expectations of marriage and child care where they live.” He quoted family scholars Elizabeth Marquardt and W. Bradford Wilcox: “Throughout history, marriage has first and foremost been an institution for procreation and raising children. It has provided the cultural tie that seeks to connect the father to his children by binding him to the mother of his children. Yet in recent times, children have increasingly been pushed from center stage.” (3)

Harvard law professor Mary Ann Glendon describes the current law and attitude toward marriage in the following words: “The (current)American story about marriage, as told in the law and in much popular literature goes something like this: marriage is a relationship that exists primarily for the fulfillment of the individual spouses. If it ceases to perform this function, no-one is to blame and either spouse may terminate it at will…Children hardly appear in the story; at most they are rather shadowy characters in the background.” (4)

Summarising decades of social research author and scholar Charles Murray concluded; “…the family structure that produces the best outcomes for children, on average, are two biological parents who remain married.” (5)

New York Times writer Ross Douthat noted; “…the striking fact that even as traditional marriage has declined in the United States … the evidence has mounted for the institution’s importance to the well-being of children.” He also wrote that “same-sex marriage is a social experiment, and like most experiments it will take time to understand its consequences.” (6)

The research of Mark Regnerus, the latest and most thorough study of same-sex parenting found significant disadvantages reported by young adults with a parent who had same-sex relationships prior to the child turning 18. (7)

2.7 Seventh Submission: Same-Sex Marriage is not a human right

It is often claimed by proponents of same-sex marriage that same-sex marriage is a human right. This is wrong. The European Court of Human Rights has held in Schalk and Kopf v Austria (2010)(8) and in Gas et Dubois v France (March 2012)(9) that same-sex marriage is not a human right. The contrary can be argued: that same-sex marriage could breach the UN Convention on the Rights of the Child. Article 9 (1) provides that “parties shall ensure that a child shall not be separated from his or her parents against their will.” Article 18 (1) which provides that “both parents have common responsibility for the upbringing and development of the child” and that “ … the best interests of the child shall be their basic concern.”

2.8 Eighth Submission: What is happening in the rest of the world

Premier Lara Giddings and same-sex marriage proponents have claimed that Australia should be more progressive and “catch up” with the rest of the world and legislate to allow same-sex marriage. However, at the time of the Tasmania debate in Parliament, only 12 of the 200 countries in the world had legalised same-sex marriage and only 5 of the 50 states of the USA. When California passed a law legalising same-sex marriage the people forced a referendum and it was overturned. Referenda on same-sex marriage have been held in more than 30 states in the USA and on each occasion the proposition had been lost and the definition of marriage as between a man and a woman upheld.

2.9 Ninth Submission: Free speech threatened

Paul Kelly, editor-in-chief of the Weekend Australian newspaper wrote on Saturday, 22 September, 2012 that “…once the state authorises same-sex marriage then religions will come under intense pressure and another campaign based on the further application of marriage equality will begin. Looking at the passions of the same-sex movement, can this be doubted? At that point the ideology of marriage equality runs in direct conflict with the idea of religious freedom. Something will have to give.” The concepts of free speech and freedom of religion have been well supported in Australia to date. Legalising same-sex marriage would put these freedoms at risk.

This is already happening. There are cases already before the European Court of Human Rights in Strasbourg, France. Gary McFarlane, a Bristol marriage counsellor, was sacked for refusing to give sex therapy to homosexuals. Lillian Ladele was disciplined after she refused to conduct same-sex civil partnership ceremonies in North London. They argued that their employers have contravened Articles 9 and 14 of the European Convention on Human Rights which prohibit religious discrimination and allow “freedom of thought, conscience and religion”.

In Alberta, Canada, Pastor Stephen Boissoin was reported to the Alberta Human Rights Commission in 2002 for expressing his Christian views on homosexuality in letters-to-the-editor. The Commission ruled against Pastor Boissoin in May 2008 and fined him $5,000. In December 2009 a Canadian lower court reversed the Commission’s decision and in October, 2012 Alberta’s highest court, the Court of Appeal, upheld the Pastor’s right to free speech and dismissed an appeal against the decision of the lower court. It took a decade of legal battles to establish the Pastor’s right to free speech and that an expression of opinion on homosexuality did not constitute hate speech. The Court was highly critical of Alberta’s hate speech laws: “Of particular concern …is that lack of clarity will cast a chill on the exercise of the fundamental freedoms such as freedom of expression and religion.”(10). In September of this year the owners of a reception venue in Israel were ordered to pay damages for refusing to accept a booking from a British lesbian couple for a “wedding” reception. Attorney Ira Hadar who represented the couple praised the court’s decision and stressed that it sets an important precedent: “Despite the owners’ central claim that the reception hall is a religious space, the court decided that the principle of equality trumps the argument for freedom of religion and belief.”(11)

On 20 October, 2012 a judge in the UK ordered the owners of a bed and breakfast to pay nearly $6000 to two homosexuals for hurting their feelings by not allowing them to share a double room in their bed and breakfast which is also their private home. Mike and Suzanne Wilkinson a Christian couple explained they try to live a Christian life, not just on Sundays but in every area of their lives. They were sued under the United Kingdom’s anti-discrimination laws.(12)

2.10 Tenth Submission: The law has an educative role

If the Tasmanian Bill had passed there would likely have been changes in schools and in school curriculum. Christian schools may have particular concerns in terms of employment, policy and practice. The situation of churches and rights of ministers of religion under the bill were not clear. It was claimed exemptions would apply but to what extent and for how long? Would teachers have been required to tell their students that marriage is about love and commitment to meet adult needs rather than what is in the best interests of children? Is gender important any more? Surely antenatal classes teach the intrinsic value of the unique relationship of a child and its biological mother and father? Surely the same messages are given to prospective carers in their preparation? This contradicts the view that it does not matter if a child is reared by two parents of the same-sex and/or by others than the child’s biological parents.

There is an option on Australian passport application forms now to apply for a passport for a child as “Parent 1” and “Parent 2” rather than as “Mother” and “Father”. France is set to ban the words “mother” and “father” from all official documents under controversial plans to legalise same-sex marriage.

2.11 Conclusion to submissions

Every marriage is imperfect and dysfunctional to some degree. In fact it is often painful and problematic with daily challenges. But this does not mean we should throw out marriage as an institution altogether. In fact, to the contrary, as a community we should be doing all we can to support it.

3. Closing remarks

In closing I will make some observations. The first is from the classical period. My second is from post-modernist literature.

In historian Barbara Tuchman’s March of Folly, she examines some of the moments of great folly that had disastrous results but must have been foreseeable. On the acceptance of the gift of the Trojan Horse, Tuchman observes that surely the citizens of Troy must have heard the sounds of swords or armour as they escorted the deadly gift into the city walls.

Japanese novelist, Haruki Murakami’s most recent novel, 1Q84, postulates two parallel worlds that existed in 1984. One is the 1984 that we experienced or read about in history books. The other, very similar in appearance, exists in the experience of the novel’s protagonists 1Q84. The differences between them emerge gradually. The world of 1Q84 has two moons and is controlled by a mysterious race of miniature people described as the “Little People”. What separates 1984 from 1Q84 is a wire mesh fence at the base of a freeway in Tokyo. A hole in that fence enables the protagonists to find their way back from 1Q84 into 1984.

In considering any legislation that makes fundamental changes to the social fabric, particularly when many argue it to be a self-evident given, legislators must be careful to consider what lies within and to listen for the rattling of sabres.

The restrictive consequences of same-sex marriage legislation upon currently existing freedoms of speech, conscience and religion are evident from the experiences in Europe, Israel and Canada. Although there may be a number of reasons why Australia should not emulate those examples, it may be that the last barrier to the overseas experience becoming the new Australian reality is our own wire mesh fence – our constitutional structure.


 

Mr Neville Rochow LLB (Hons) LLM (Adelaide University), LLM (Deakin University) is a member of the Adelaide bar and is his practice includes appearances in the High Court, the Federal Court and the Supreme Courts of all Australian States and Territories. He has a particular interest in human rights and the law and co-edited Freedom of Religion under Bills of Rights. Mr Rochow, with his colleague Mr F. Brohier, provided an advice on the constitutional questions around state same-sex marriage bills in the recent Tasmanian debate on the Labor/Greens Tasmanian Same-Sex Marriage Bill 2012 which was defeated in the Legislative Council (the upper house) in early October.

Endnotes

1 G Barwick, ‘The Commonwealth Marriage Act 1961’, Melbourne University Law Review, v 3, 1961-62, p 277, quoted in O. Rundle, ‘An examination of relationship registration schemes in Australia’, Australian Journal of Family Law, v 25, 2011, p 126. Emphasis added.

2 [1960] 27 Hansard House of Representatives 2001. (19 May 1960).

3 W Bradford Wilcox and Elizabeth Marquardt eds. The State of Our Unions: Marriage in America (2011) figure 82

4 Mary Ann Glendon, Abortion and Divorce in Western Law: American Failures, European Challenges (1987), 108.

5 Charles Murray, Coming Apart: The State of White America, 1960-2010 (2012), 158.

6 Ross Douthat, ‘Gay Parents and the Marriage Debate’, New York Times, June 11, 2012;  http://douthat.blogs.nytimes.com/2012/06/11/gay-parents- and-the-marriage-debate.

7 M. Regnerus ‘How Different are the Adult Children of Parents Who Have Same-Sex Relationships? Finding from the New Family Structures Study’, Social Science Research, Vol. 41 [2012], 752-770.

8 http://archive.equal-jus.eu/109/

9 European Court of Human Rights, Gas and Dubois v France (no. 259151/o7). Judgement of 15 March 2012.

10 Boissoin v Lund, see www.adfmedia.org/News/PRDetail//7705

11 See www.haaretz.com/news/national/isreali-lesbian-couple-awarded-nis-60-000-after-being-turned-away-from-wedding-hall-1.464503

12 The Guardian, 18 October 2012; see www.guardian.co.uk/world/2012/oct/18/christian-gay-couple-ordered-pay-damages

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