Same-Sex Marriage
An Update on Overseas
Developments
Canada: Provinces allow
same-sex marriage
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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
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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
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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
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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
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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, antimiscegenation laws and segregation”.
USA: Connecticut & Vermont
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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
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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
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In 1996 the Defence of Marriage Act was passed
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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
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The Netherlands and Belgium allow full
same-sex marriage
Extended through legislation, not
judicial decision
South Africa
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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
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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 samesex relationships, but not marriage:
France
Denmark
Norway
The United Kingdom
Hungary
Israel
Portugal
Germany
New Zealand
Brazil
Finland
Iceland
Italy
Sweden
Relevance to Australia?
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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?
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Yes case:
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Equality
Human dignity
Liberty/Freedom of choice
No case:
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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