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It boils down to values and the importance we place on equality as a society - are we prepared to recognise the status of same-sex couples on an equal footing with heterosexual couples?
Kevin was born female. As an adult, he lived as a man and was accepted by society as a man. The issue in the case was whether Kevin was a ‘man’ as at the date of his marriage to Jennifer. Kevin and Jennifer sought a declaration that their marriage was valid. I appeared in that case for the Commonwealth. It was a signifi cant case considering the contemporary meaning of the words ‘man’ and ‘marriage’. I have worked with Gilbert + Tobin on issues concerning the recognition of foreign same-sex marriages. I’ve also been doing some work on marriage equality issues for the New South Wales Bar Association’s Human Rights Committee.
Picking up on one of those issues, what is the meaning of marriage in Australia?
The legal meaning of marriage is set out in the Marriage Act, which expressly says that marriage is the union of a man and woman to the exclusion of all of others voluntarily entered into for life. As a matter of statutory interpretation, one works out what the meaning of those words are in a statute. The Re Kevin case involved working out the ordinary meaning of ‘man’ in the Marriage Act.
It has been argued that because the statute simply refl ects the historical and religious concept of marriage, the statute should be interpreted to recognise these traditions. The common law defi nition of marriage draws on religious traditions. In Hyde v. Hyde (1866) Lord Penzance said:
What, then, is the nature of this institution as understood in Christendom?...If it be of common acceptance and existence, it must needs have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for
this purpose be defi ned as the voluntary union for life of one man and one woman, to the exclusion of all others.
The common law meaning of marriage goes back to a much earlier period of time. The courts have had regard to what the common law says in considering the scope of the relevant statutory provision.
Regardless of how one approaches the task of statutory interpretation, the Marriage Act is quite clear that it is the union between a man and a woman. It is obvious that it excludes same-sex marriages or same-sex relationships being recognised as a marriage.
Is this what underlies the Law Council submission you were a part of: that same-sex couples are inherently discriminated against under the Marriage Act?
Central to the Law Council’s submission is equality and non-discrimination. The Law Council recognises that there are diff ering views and all views should be respected. However, the Law Council’s focus is recognition of human rights and treating all people with equality and dignity. One of the issues arising from the Committee’s questions was: ‘in this day and age we have eliminated discrimination in a whole range of other areas; does it really matter whether or not same-sex couples can call themselves married as opposed to all other aspects of the relationship being recognised on an equal footing?’ It boils down to values and the importance we place on equality as a society - are we prepared to recognise the status of same-sex couples on an equal footing with heterosexual couples?
Do you believe the debate surrounding same-sex marriage also raises a broader philosophical question about secular Australia and the role of religion in shaping our laws?
Yes, I do. Marriage is a social institution having its origins in ancient Christian law. The common law defi nition of marriage, together with the history of marriage, points to marriage originating from religious traditions and ceremonies. Historically, marriage was intrinsically connected with procreation. From a religious perspective, the argument is that same-sex couples are not capable, in that relationship, of procreation and then raising children. If the purpose of marriage is procreation, then there’s a distinction between a relationship between man and a woman and the relationship of same-sex couples.
For this reason, it is suggested that special considerations attach to marriage.
In contemporary society, I doubt anyone would suggest that the sole purpose of entering into a marriage is to procreate. No one would dispute that an infertile people may marry. Since 1975, a marriage cannot be invalidated on the ground of incapacity to consummate the marriage or on any ground relating to the sexual conduct of parties. Even accepting that a role of marriage is closely connected with generation and care of children, as a society we need to consider whether the concept of marriage should continue to be defi ned by historical and religious traditions.
There are a range of areas where there may a confl ict between observance of religious beliefs and non-discrimination. The question is how to reconcile confl icting human
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