Same Sex "Marriage" and the Australian Constitution

Below are some excerpts from a long article which quotes extensive legal precedents for arguing that the meaning of marriage in Australia is constitutionally fixed and therefore homosexual "marriage" would be unconstitutional

Section 51(xxi) of the Australian Constitution gives the Federal Government jurisdiction over marriage. Unlike the situation in the U.S., in Australia there cannot be as many marriage laws as there are states. State and Federal Governments can choose to give married and unmarried couples the same rights and services in any area under their respective jurisdictions, but only the Federal Government can tell us who are married. But this does not mean that it can take control of any grouping by calling it "marriage".

As Justice Brennan put it, in the case of Fisher v Fisher (1986):
[C]onstitutional interpretation of the marriage power would be an exercise of hopeless circularity if the Parliament could itself define the nature and incidents of marriage by laws enacted in purported pursuance of the power. ... [T]hose words do not empower the Parliament to legislate upon the customary incidents of marriage so as to affect the nature of the marriage relationship.

Marriage had a specific meaning under the common law at the date of the Constitution - and it goes back not simply to 1362, but as far as human memory runs.

And what is that meaning? I shall merely cite the relevant case law prior to 1900.....

Two years later, the matter arose again, this time in the case of a marriage contracted in Japan. Again, Justice Hannen ruled, in Brinkley v A-G (1890) 15 P. D. 76 at 79:

A marriage which is not that of one man and one woman, to the exclusion of all others, though it may pass by the name of marriage, is not the status which the English law contemplates when dealing with the subject of marriage.

His Honour then went on to determine that, since Japanese marriages do indeed follow this pattern, they are automatically valid under the common law. He also pointed out that, although it is often called "Christian marriage" as a shorthand phrase, Christianity need have nothing to do with it.....

What else needs to be added? If polygamous and potentially polygamous unions, which have a long and venerable history, and have been practised by a majority of the world's population, are not recognised by the common law, or section 51(xxi), what chance same sex unions, which have never been treated as marriages except in a few small societies in aberrant times?

Not only that, but the parliamentarians know it - or should know it. In 2002 they sought legal opinion on the subject. The conclusion was that, although there was not complete unanimity in the High Court, the majority opinions suggest that such a law would have a very hard time passing muster. Furthermore, there would be many people who would have standing to contest it: a state government, an heir or next of kin sidelined by such a "marriage", a public servant who objects to registering it, or a celebrant who may be forced to celebrate it.

The social deformers are pretending that marriage is the product of the law, and is merely whatever grouping of people the law wants to consecrate. But it isn't. As Sir William Scott pointed out as far back as 1795, it is the fundamental basis of society, which pre-dates the law (and probably the human race), which the law recognises and regulates for the benefit of society, but which it does not create.

That is why I have consistently put "marriage" in quotation marks when referring to same sex unions. It is all a game of "let's pretend". But, as Abraham Lincoln is alleged to have said: "How many legs has a dog? Only four. Calling the tail a fifth leg doesn't make it one."


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