Walker ssm (2)
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    Walker ssm (2) Walker ssm (2) Presentation Transcript

    • 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:
      Sweden Portugal Italy Israel Iceland Hungary Finland The United Kingdom Brazil Norway New Zealand Denmark Germany France
    • 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