Marriage and Civil Unions: Legal and Moral Questions
| Author | Aleardo Zanghellini |
| DOI | 10.22145/flr.35.2.4 |
| Published date | 01 June 2007 |
| Date | 01 June 2007 |
| Subject Matter | Article |
MARRIAGE AND CIVIL UNIONS: LEGAL AND MORAL
QUESTIONS
Aleardo Zanghellini*
A INTRODUCTION
In December 2006, the Civil Partnerships Bill 2006 (ACT) was introduced in the ACT
Legislative Assembly that would extend to same-sex (and heterosexual) couples who
have declared their commitment to each other by entering a 'civil partnership' the legal
consequences that ACT laws attach to 'domestic partnerships' (what other Australian
jurisdictions call 'de facto relationships'). The Bill was introduced in response to the
Howard Government's disallowance, in June 2006, of the Civil Unions Act 2006 (ACT)
('Civil Unions Act'), passed by the ACT Legislative Assembly almost exactly one month
before. The Civil Unions Act had created an institution paralleling heterosexual
marriage but open to both same-sex and different-sex couples. A civil union was
similar to marriage both to the extent that a ceremony was required for it to be brought
into existence and because a validly contracted civil union was to be treated like
marriage for the purposes of all ACT laws.1 However, a civil union did remain
different from marriage, not only in name, but also in (legal) substance: for example,
the ACT legislation did not provide that civil unions be treated like marriages for the
purposes of federal, as opposed to Territory, legislation; nor did they operate in any
other State or Territory. Nevertheless, Attorney-General Philip Ruddock, in explaining
the federal government's response to the ACT Act, argued that the ACT legislature was
'provocatively and deliberately seek[ing] to intrude into areas in which they have no
responsibility'.2 (The new Civil Partnership Bill, by providing that civil partnerships be
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* Lecturer, Macquarie University. Many thanks to Jenni Millbank and the anonymous
referees of the Federal Law Review for their helpful comments on early drafts, and to Alex
Reilly for discussing some of the constitutional law issues dealt with in this article.
1 Civil Unions Act 2006 (ACT) ss 11 and 5(2).
2 'G-G to Disallow Civil Unions', ABC Online, 13 June 2006
<http://www.abc.net.au/news/newsitems/200606/s1661737.htm> at 1 July 2006. A
rather more obscure point was made in the formal justifications for the disallowance,
where it was stated, without elaboration, that the ACT Act 'attempted to circumvent the
Marriage Act 1961 (Cth)': 'Explanatory Statement Issued by the Authority of the Attorney
General for the Minister for Local Governments, Territories and Roads, Australian Capital
Territory (Self-Government Act) 1988, Instrument of Disallowance', ComLaw
<http://www.comlaw.gov.au/ComLaw/Legislation/LegislativeInstrument1.nsf/0/9B231
E99E8803105CA25718C0017E065/$file/Amended+Civil+Unions+E+Statement.pdf> at 17
January 2007.
264 Federal Law Review Volume 35
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treated like domestic partnerships rather than marriages, is intended to address this
objection — although the difference is essentially terminological, given that domestic
partnerships attract virtually all of the consequences of marriage under ACT law.)3 In
his own attempt at justifying the government's determination to disallow the civil
unions legislation, Prime Minister John Howard seemed rather less inclined to rely on
the technical ground of the Territory's supposed overstepping of its legislative
competence. Rather, he addressed the substantive issue: 'It is a question of preserving
as an institution in our society marriage as having a special character'4 Just as the
Attorney-General was quick to disclaim any antipathy on the government's part
towards the idea of self governing Territories,5 so did the Prime Minister take pains to
point out that he and his Ministers 'are not anti-homosexual people, or gay and lesbian
people. It is not a question of discriminating against them.'6
The two different justifications provided by the Attorney-General and the Prime
Minister for the government's opposition to the Civil Unions Act 2006 (ACT) are
illustrative, respectively, of two general sets of questions relating to the issue of
marriage-like same-sex relationship recognition in Australia: questions of
constitutional law and jurisprudential normative questions. The constitutional law
questions are essentially whether or not the States and Territories can legislate for
same-sex marriage ('SSM') and civil unions and, if so, what is the effect of such laws.
The jurisprudential questions revolve around the central question of whether or not
the law should treat marriage as necessarily heterosexual.
The two sets of questions are obviously related: as the disallowance of the civil
unions legislation has shown, conservative forces promote their anti-gay agenda by
mobilising both legal and moral arguments. Nevertheless, the two sets of questions
are, at another level, independent of each other. In particular, while the constitutional
law questions are jurisdiction-specific (they are relevant to Australia because of the
particular federal constitutional arrangements enshrined in the Commonwealth
Constitution), the jurisprudential questions are both more universal and less contingent
in nature (they are relevant both to Australia and other jurisdictions, and they would
be likely to be relevant to Australia even if the constitutional context were different).
The constitutional law questions have not been systematically analysed yet by
commentators; the confusion engendered by the Commonwealth government on
occasion of the disallowance of the ACT civil union legislation makes it particularly
appropriate to deal with them at this point in time. The literature addressing the
jurisprudential questions is considerably more abundant. Nevertheless, it is timely to
address these questions as well, as they have become increasingly topical in Australia
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3 See Reg Graycar and Jenni Millbank, 'Following Marriage: Australia's Distinctive Road to
Relationship Recognition' (2006) 17 (on file with author).
4 Farah Farouque, 'Why oh Why Can't I Have a Civil Union?', The Age (Melbourne), 10 June
2006 <http://www.theage.com.au/news/in-depth/why-oh-why-cant-I-have-a-civil
union/2006/06/09/1149815316575.html> at 1 July 2006. This point was echoed in the
formal justifications for the disallowance, where it was stated that '[t]he unique status of
marriage is undermined by any measures that elevate other relationships to the same or
similar level of public recognition and legal status': 'Explanatory Statement', above n 2.
5 'We have no quarrel with the Territory's legislating in those areas in which it has
responsibility, and we accept the decisions that they make supported by their electorate':
'G-G to Disallow Civil Unions' above n 2.
6 Farouque, above n 4.
2007 Marriage and Civil Unions 265
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in recent years as a result of the ideological stance adopted by the Howard government
against SSM (and now civil unions). This has awakened an interest, which had
traditionally been largely lacking in the Australian lesbian and gay community, in
marriage or marriage-like forms of relationship recognition.
In this article I analyse both the constitutional and the jurisprudential questions
mentioned above, taking the statements made by the federal government on occasion
of the disallowance of the Civil Unions Act as my point of departure. In relation to both
sets of questions, however, I shall go beyond the terms of the questions as set by the
Attorney-General and the Prime Minister respectively. With regard to the
constitutional law discussion, I shall argue that the central question is not the one of
legislative competence raised by the Attorney-General ('Can the Territories, or States,
legislate for civil unions or SSM?') but one of consistency between laws passed at
different levels of government ('Would State or Territory SSM or civil union laws be
consistent with the Marriage Act 1965 (Cth), either as it is now or as it conceivably may
be in the future?'). In respect of the jurisprudential questions, since the Prime Minister's
moral case for the inherent heterosexuality of marriage was notable by its brevity and
lack of sophistication, I will look at the New Natural Lawyers' version of that case, on
the assumption (which I will justify) that something like it ultimately informed the
Prime Minister's views, and also because I believe that conservative forces in the future
are increasingly likely to appeal to New Natural Law Theory when formulating or
trying to defend their policies. In responding to the New Natural Lawyers' defence of
heterosexual marriage, I will give my own spin to some objections that have already
been levelled at it by others, as well as develop novel arguments against it.
Given the complexity of the argument and the limited space available, my analysis
of both sets of questions cannot be as thorough as it would be had I chosen to
concentrate on only one set of questions. But then my goal in this article is neither that
of making the definitive case for the constitutional validity of State SSM legislation, nor
that of providing a fully developed defence for the morality of SSM and the
shortcomings of the New Natural Lawyers' moral vision. Rather, I am interested in
beginning to point in the direction of arguments that cast doubt over the legal and
moral objections mobilised against SSM in this country: that is, over the uncritical
assumption that State SSM legislation would conflict with the federal Marriage Act and
over the knee-jerk response that the value of marriage is inseparable from its
heterosexuality. The level of my analysis will be pitched in accordance with these
'limited' ambitions.
B THE CONSTITUTIONAL LAW QUESTION
1 The ACT and civil unions
a The Civil Unions Act 2006 (ACT) and its disallowance
The Civil Unions Act 2006 (ACT) was passed by the ACT Legislative Assembly
pursuant to the legislative powers conferred upon it by the Australian Capital Territory
(Self-Government) Act 1988 (Cth), which in turn was passed by the Commonwealth
Parliament relying on s 122 and/or 52(i) of the Constitution. These constitutional
provisions confer on the Commonwealth Parliament a power to legislate —
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