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Letís not meddle with the Marriage Act

By John de Meyrick - posted Tuesday, 11 August 2015


If same-sex unions are to be legally recognised in Australia then the least sensible means of doing it is to amend the Marriage Act 1961 in any of the ways currently being proposed, or at all.

It would be far better for same-sex unions to be legally recognised by their own act, with their own definition and to be referred to by their own form of “marriage”.

The Australian Constitution reserves marriage as an exclusive subject for the Federal Parliament. At the time it was written in 1900, and as it remained until December 2013, there was only one concept of marriage known to the Constitution. That was the time honoured understanding of marriage to be a union between a man and a woman.

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When the Commonwealth challenged the ACT Government’s Marriage Equality (Same-Sex) Act 2013, the High Court not only decided that the ACT did not have power to pass such an act, it also held that reference to marriage in the Constitution could be construed to include same-sex unions.

That construction of marriagewas decided nem con (no one opposing it), although duly considered and reasoned by the Court and not just as agreed and sought in submissions by the Commonwealth, the ACT and Australian Marriage Equality Inc (appearing by leave).

Indeed, the Court noted that different kinds of unions described as “marriage” existed throughout the world and that as polygamous unions made outside Australia were deemed under section 6 of the Family Law Act 1975 to be marriage within Australia,  the “juristic concept of ‘marriage’ cannot be confined to a union having the characteristics [only of an heterosexual one]”. The Parliament has the power to legally recognise any kind of “marriage” relationship.

Importantly, the Court did not say anything about amending the definition of marriage; nor did it decide that opposite-sex and same-sex unions were equal or were deemed to be one and the same thing. Only that the term marriage in the Constitution was not immutable, and that within the context of contemporary Australia it was open to the Federal Parliament to make laws for both.

That being so, Parliament has the choice of amending the Marriage Act and the definition of “marriage” to include same-sex unions, or to make a separate act for same-sex unions and to leave the Marriage Act as it is.

There are not only dangers in diluting and broadening the primary definition of marriage based on some notion of “equal love”, but to do so on that basis would be to create a legal fiction that would profoundly alter the concept of marriage for the heterosexual community as well.

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Marriage would lose its primary meaning and be treated in the secondary and general use of that word as the joining or merger of any two things, equal or otherwise – like marriages of ideas, organisations, convenience, et al.

Marriage is much, much more than that. It offers the promise of on-going mortality in a biological union between parents and child; and no matter how true that union may be, to that child, and in the having of that child, the parties are forever genetically bound. That promise and its fulfilment is not attainable by love alone, and no fiction of law can contrive to make it so.

It should also be noted that a survey in 2014 of over 20,000 Australian adult men and women found that 96.5 percent of the entire sample identified as heterosexuals. Only 1.9 percent of males and 1.2 percent of females identified as homosexuals (the rest being bi-sexual).

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About the Author

John de Meyrick is a barrister (retíd), lecturer and writer on legal affairs.

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