Walker ssm (2)


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Walker ssm (2)

  1. 1. Same-Sex Marriage An Update on Overseas Developments
  2. 2. Canada: Provinces allow same-sex marriage <ul><li>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 </li></ul><ul><li>Reason: constitutional right to equality: Art 15(1) </li></ul><ul><li>“ the dignity of persons in same-sex relationships is violated by the exclusion of same-sex couples from the institution of marriage” </li></ul><ul><li>Same-sex couples have been marrying in these provinces since 2003. </li></ul>
  3. 3. Canada: Federal Response <ul><li>The Federal Parliament proposed a law to recognise same-sex marriage </li></ul><ul><li>The validity of the law was upheld by the Canadian Supreme Court </li></ul><ul><li>The meaning of the term “marriage” in the Constitution is not frozen to the meaning it had in the 1800s </li></ul><ul><li>The Bill has passed the second reading in the House of Commons, 163 to 138 </li></ul>
  4. 4. USA: Massachusetts <ul><li>The Massachusetts Supreme Court held that the Massachusetts Constitution requires recognition of same-sex marriage </li></ul><ul><li>Over 1000 same-sex couples were married on the first day the ruling took effect </li></ul><ul><li>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. </li></ul>
  5. 5. USA: California <ul><li>The State Superior Court ruled that denying marriage to same-sex couples is unconstitutional. The decision is being appealed. </li></ul><ul><li>A Bill is before the State legislature to allow for same-sex marriage </li></ul><ul><li>A constitutional amendment is being sought to prohibit same-sex marriage </li></ul>
  6. 6. USA: New York State <ul><li>The NY Supreme Court ruled that denial of same-sex marriage is unconstitutional </li></ul><ul><li>“Rote reliance on historical exclusion as a justification improperly forecloses constitutional analysis and would have served to justify slavery, anti-miscegenation laws and segregation”. </li></ul>
  7. 7. USA: Connecticut & Vermont <ul><li>Legislation defines marriage as the union of one man and one woman </li></ul><ul><li>The legislation also provides for “civil unions” for same-sex couples </li></ul>
  8. 8. USA: Nebraska <ul><li>State constitutional amendment preventing same-sex marriage and civil unions passed. 70% approval. </li></ul><ul><li>US District Court held the amendment to be unconstitutional under the equal protection clause of the US Constitution: </li></ul><ul><li>Because it precludes access to the democratic legislative process to seek legal reform </li></ul>
  9. 9. USA: Federal Response <ul><li>In 1996 the Defence of Marriage Act was passed </li></ul><ul><ul><li>No State shall be required to give effect to a law of any other State with respect to a same-sex &quot;marriage.&quot; </li></ul></ul><ul><ul><li>The words &quot;marriage&quot; and &quot;spouse&quot; are defined for purposes of Federal law. </li></ul></ul><ul><li>A constitutional amendment has been suggested </li></ul><ul><li>President Bush: the amendment is necessary because of attempts by &quot;activist judges&quot; to redefine marriage </li></ul>
  10. 10. The Netherlands & Belgium <ul><li>The Netherlands and Belgium allow full same-sex marriage </li></ul><ul><li>Extended through legislation, not judicial decision </li></ul>
  11. 11. South Africa <ul><li>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. </li></ul><ul><li>Reason: “The capacity for commitment and the ability to love and nurture and honour and sustain transcends the incidental fact of sexual orientation” </li></ul><ul><li>However, until the executive takes action under the Marriage Act , the Court’s decision does not operate. </li></ul>
  12. 12. Spain <ul><li>Parliament is considering a Bill to allow for same-sex marriage </li></ul><ul><li>The Bill has passed the lower house </li></ul><ul><li>It is expected to pass the upper house </li></ul><ul><li>The Vatican has criticised the Bill </li></ul>
  13. 13. Non-Marriage Recognition <ul><li>The following countries recognise same-sex relationships, but not marriage: </li></ul>Sweden Portugal Italy Israel Iceland Hungary Finland The United Kingdom Brazil Norway New Zealand Denmark Germany France
  14. 14. Relevance to Australia? <ul><li>Trend internationally is towards recognition of same-sex marriage </li></ul><ul><li>And towards recognition of same-sex relationships in other ways (eg registered partnerships) </li></ul><ul><li>States in Australia are moving in these directions </li></ul><ul><li>The Commonwealth is moving backwards; similar to the US federal government. Different from other liberal, developed nations. </li></ul>
  15. 15. Do we want same-sex marriage? <ul><li>Yes case: </li></ul><ul><ul><li>Equality </li></ul></ul><ul><ul><li>Human dignity </li></ul></ul><ul><ul><li>Liberty/Freedom of choice </li></ul></ul><ul><li>No case: </li></ul><ul><ul><li>Marriage an inherently problematic institution </li></ul></ul><ul><ul><li>Recognising same-sex marriage will inevitably force same-sex relationships into a heterosexual model </li></ul></ul><ul><ul><li>Removes the freedom gay men and lesbians have to define their own relationships </li></ul></ul>