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  • 1. Same-Sex Marriage An Update on Overseas Developments
  • 2. 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.
  • 3. 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
  • 4. 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.
  • 5. 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
  • 6. 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”.
  • 7. 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
  • 8. 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
  • 9. 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
  • 10. The Netherlands & Belgium
    • The Netherlands and Belgium allow full same-sex marriage
    • Extended through legislation, not judicial decision
  • 11. 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.
  • 12. 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
  • 13. 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
  • 14. 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.
  • 15. 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