LW230 Contemporary Legal Issues

Semester 1, 2016
Essay
Should the Commonwealth Parliament amend the Marriage Act 1961 (Cth) to permit
same-sex marriage? If so, what, if any, protections should be afforded to those with
strongly held religious objections to same-sex marriage? Discuss and support from
the readings.
1. Introduction
The institution of marriage, in a religious and social context, has always been
considered to be the most inviolable political institution throughout the ages for it was
matrimony alone that had the ability to bring about stability throughout any political
state. Indeed, in society where differences in opinion and deep-rooted division is seen
as a threat to stability, the unique ability in creating a unified microcosm of the
political realm through the binding of two individuals of the opposite sex both
physically and psychologically into a comprehensive union was considered to be of
utmost importance. In fact, this idea of marriage, built upon the complementarity of
the sexes, unsurprisingly, has been held to be the greatest moral and social good
within different cultures and empires at different stages of human existence.
Certainly, it is also true that philosophers and thinkers throughout the ages have held
marriage to be the fundamental bedrock for a stable flourishing society, and the
conclusions they have come to through political and philosophical enquiry will be
considered in this paper as the fundamental reason for opposing the radical move to
redefine marriage. In addition, the legal and social ramifications of the legalisation of
same-sex marriage will be explored in order to establish the central theme of this
paper, that is, the case against amending the Marriage Act 1961 (Cth) to incorporate
couples of the same sex. Meanwhile, the final part of the essay will focus on problems
that may arise with regards to religious liberty as a result of the amendment and
possible remedies and protections that should be afforded to those who might have
religious-based and conscientious objections to same-sex marriage with particular
emphasis on those who, in normal instances, supply goods and services to weddings.
2. The decline of the institution of marriage
1

But before we delve into the purpose of marriage and its importance to society, it is
helpful to consider the factors that led to such a radical shift in the understanding, and
perception in the contemporary context of modern Australian society. While it is true
that the legalisation of same-sex marriage in New Zealand in 2013, with a majority of
77 votes in favour to 44 against the move1, as well as the introduction of Marriage
(Same Sex Couples) Act 2013 in the United Kingdom2, has brought about greater
awareness to the Australian public to remedy an injustice, it is difficult to deny the
gargantuan impact the events of 2015 has done in garnering the interest of the wider
society.
The first great turning point came when the Republic of Ireland, in a referendum,
voted in favour of legalising same-sex marriage 62% of people voting in favour of the
change3 despite only a third of the population eligible to actually voting yes at the
poll a fact which was largely ignored by the media.4 This was followed up by the
majority decision by the Supreme Court of the United States in Obergefell v Hodges,
which the late Justice Antonin Scalia condemned as a threat to American democracy
through the Courts claimed power to create liberties that the Constitution and its
Amendments neglect to mention5, subsequently led to major social media campaign
to celebrate pride6, thus bringing with it wider public, and media attention.
For the sake of a critical analysis, though, it is also important not to forget the
negative ramifications the sexual revolution, stemming from the 1960s-1980s, had
firstly in confronting and subsequently overturning any traditional normative
behaviour governing all things pertaining to sexuality.7 The movement itself led to the
1 BBC, New Zealand legalises same-sex marriage (17 April, 2013) http://www.bbc.com/news/world22184232
2 Marriage (Same Sex Couples) Act 2013 (UK)
3 BBC, Huge Republic of Ireland vote for gay marriage (23 May, 2015)
http://www.bbc.com/news/world-europe-32858501
4 Andrew Bolt, No, most Irish did not say yes to same-sex marriage (4 June, 2015)
http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/no_most_irish_did_not
_say_yes_to_same_sex_marriage/
5 Obergefell v Hodges (2015) SCOTUS Scalia J dissent
6 Forbes, Facebook Launches 'Celebrate Pride' Tool Which Puts A Rainbow Filter Over Profile
Pictures (27 June, 2015) http://www.forbes.com/sites/amitchowdhry/2015/06/27/facebook-celebratepride/#22ebc22c607c

7 Breitbart, From the Sexual Revolution to the LGBT Revolution: How Did We Get Here? (1 July,
2015) http://www.breitbart.com/big-government/2015/07/01/from-the-sexual-revolution-to-the-lgbt-

decay of morals and the breakdown of the natural family and has seen as massive
paradigm shift where the conjugal understanding of a monogamous and faithful
relationship has been replaced with a relationship which places the supremacy of the
individual and feelings of intimacy above all else (the revisionist view of marriage)8.
We have witnessed the effects of the sexual revolution. We have allowed ourselves
as a country to place our own individualism first instead of placing whats good for
children and families first. The result: a society that says live and let live. We are a
society that goes along to get along. The facts are clear in the wake of the recent
Supreme Court hearing on same-sex marriage, wrote Dr. Deborah De Sousa Owens
from Vanderbilt University.9
3. Purpose of marriage
Indeed, as Dr De Sousa Owens correctly points out, any attempt to emphasise
individualistic passions over all else, which is essentially the revisionist view of
marriage in a nutshell, risks neglecting the fundamental goods of society which holds
the welfare of children and families as of paramount importance.
Marriage itself is the greatest institution within the political realm as it is the only
union capable of creating families. The ancient Greek philosopher Aristotle argues
that the family represents nature in its clearest manifestation,10 that is, the family is
built upon the mutual attraction of male and female individuals who recognise the
power of fertility and the importance of reproduction, thus making it the central part
of civilised society.11 Furthermore, as human beings are, by nature, political animals
due to their ability to communicate concepts regarding morality and virtue - for
example, the cardinal virtues12 families, which is a conglomeration of humans
striving for virtue, as such are the most basic structure in society. Hence both
revolution-how-did-we-get-here/
8 Sherif Gergis, Robert P. George and Ryan T. Anderson, What is marriage? (2012) Harvard Journal
of Law and Public Policy, 246.
9 Breitbart, From the Sexual Revolution to the LGBT Revolution: How Did We Get Here? (1 July,
2015) http://www.breitbart.com/big-government/2015/07/01/from-the-sexual-revolution-to-the-lgbtrevolution-how-did-we-get-here/
10 John Hittinger, Plato and Aristotle on the Family and the Polis (2013) The Saint Anselm Journal
8.2, 3.
11 ibid
12 Fred Miller, Political naturalism (2011) Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/aristotle-politics/supplement3.html

Aristotle, and paradoxically, Plato argue that the polis must be able to draw upon the
naturalness of the family for its own legitimacy and justification13. As the family is
the prior and more fundamental form of association,14 the political is hence an
extension of the natural family and through natural teleology, the city completes the
family as the perfect society and hence should not seek to destroy something which is
inherently good.15
Central to Aristotles characterisation of the family in his political philosophy is built
upon, firstly, the inability of humans to be self-sufficient and secondly, the need for
the reproduction of the species. This can be summarised as follows: There must
necessarily be a union or pairing of those who cannot exist without one another. Male
and female must unite for the reproduction of the species, not from deliberate
intention, but from the natural impulse which exists in animals generally and also
exists in plants to leave behind them something of the same nature as themselves16
Furthermore, Aristotle recognises the union of the husband and wife to be more
natural than the polis Between man and wife friendship seems to exist by nature;
for man is naturally inclined to form coupleseven more than to form cities,
inasmuch as the household is earlier and more necessary than the city, and
reproduction is more common to man with the animals.17 Such a relationship also
helps in the development of virtue But this friendship may be based also on virtue,
if the parties are good; for each has its own virtue and they will delight in the fact18
thus is crucial in developing virtue within the political realm as well.
The medieval philosopher and theologian St Thomas Aquinas also agreed with
Aristotle and his viewpoint can be summarised as follows; while the political realm is
natural, the family is considered to be more natural as it is prior to the political

13 John Hittinger, Plato and Aristotle on the Family and the Polis (2013) The Saint Anselm Journal
8.2, 3.
14 ibid
15 ibid pg 9.
16 Ibid pg 9.
17 Ibid pg 10
18 Ibid pg 11

society19 that is, it is earlier and more necessary than political society.20 As a result,
the political realm is only possible and complete dependent on the family. Society
would cease to exist with the destruction of the family.21
Instead, of focusing on what should constitute marriage and family, the contemporary
debate over same-sex marriage is built primarily on the state recognition of
homosexual unions as a civil right. As James W. Skillen argues, the contemporary
debate is about what governments should do with the definition of marriage, that is,
whether the current legal definition is in itself good or bad, right or wrong.22 As a
result, one must appeal to moral arguments and grounds that transcend the law. As
such, the debate shouldnt be classified as one based upon civil rights, but rather the
nature of reality and the interpretations of reality that precede the law.23
Those who now argue that same-sex couples should be included, as a matter of civil
right, within the legal definition of marriage are appealing to the constitutional
principles of equal protection and equal treatment. But this is entirely inappropriate
for making the case for same-sex "marriage." The simple fact is that the civil right
of equal treatment cannot constitute social reality by declaration. Civil rights
protections function simply to assure every citizen equal treatment under the law
depending on what the material dispute in law is all about. Law that is just must begin
by properly recognizing and distinguishing identities and differences in reality in
order to be able to give each its legal due.24
Further, Skillen stipulates that if marriage is to be redefined to include homosexual
unions, then one must be able to prove that marriage law, as opposed to civil rights

19 Peter Koritansky, Thomas Aquinas: Political Philosophy http://www.iep.utm.edu/aqui-pol/

20ibid pg 11
21 Peter Koritansky - Thomas Aquinas: Political Philosophy http://www.iep.utm.edu/aqui-pol/
22 James W. Skillen, Same-sex Marriage is not a civil right (2004) Public Justice Report the Second
Quarter of 2004 http://www.cpjustice.org/public/page/content/marriage_not_civil_right
23 ibid
24 ibid.

law, has overlooked or misidentified something that it should not have overlooked or
misidentified.25
Marriage itself is distinct from any other relationship because, firstly, it creates a
comprehensive union of the spouses, which then leads to a special link to children and
finally is manifested through the norms of permanence, monogamy and exclusivity.26
A marriage is not merely comprehensive to the extent that there is a mutual sharing
of resources, but it extends to the organic bodily union of the spouses. Unable to be
self-sufficient,27 individual adults are naturally incomplete unless there is the
coordination of the sexual organs in coitus towards the greatest good of marriage, that
is the reproduction of children.28 In this way, the two individuals become biologically
united in coitus to achieve the biological end that is reproduction.29 This act is also
key in marriage as it is a free and loving expression of the spouses permanent
and exclusive commitment.30 The biological union, is hence, is naturally inseparable
from having and rearing children. This structure, is hence largely orientated
procreation and any relationship that is unable to attain such a good should not be
considered marriage in the eyes of law.
Hence, as Skillen writes: To recognize in law the distinct character of a marriage
relationship, which entails sexual intercourse, involves no discrimination of a civil
rights kind against those whose bonds do not include sexual intercourse. Those who
choose to live together in life-long homosexual relationshipsmay be free to live as
they do, and they suffer no civil rights discrimination by not being identified as
marriages.31

25 ibid.
26 Sherif Gergis, Robert P. George and Ryan T. Anderson, What is marriage? (2012) Harvard
Journal of Law and Public Policy, 252.
27 This concept, from Aristotle, is explored earlier in the essay.
28 Sherif Gergis, Robert P. George and Ryan T. Anderson, What is marriage? (2012) Harvard
Journal of Law and Public Policy, 254.
29 ibid.
30 ibid 255.
31 James W. Skillen, Same-sex Marriage is not a civil right (2004) Public Justice Report the Second
Quarter of 2004 http://www.cpjustice.org/public/page/content/marriage_not_civil_right

Furthermore, in the body politic, American philosopher Stanley Cavell creates a link
between sexual desire and the stability of the political realm.32 In doing so, Cavell
claims that sexual desire drive us to find fulfillment on, with, in and through the body
of another person. This is formed through social interactions.33 Who we sexually
desire is a result of the impact of our parents, peers, teachers, churches and other
institutions of authority.34
Sexuality is the place where the formations of our inner lives and that of our public
subjectivity interconnect. In disciplining sexual desires, society aims to produce
subjects who are capable of forming the bonds of affection that are considered to
foster the interests of the state. The desires of our inner lives are not simply our own;
they are shaped by social forces and for societys interests. In sum, if romantic
attraction and marriage out of free consent provide the founding metaphor of our
modern polity, then it is important to shape sexual desire in the image of romantic
fulfillment.35
In the Australian context, section 51 of the Australian Constitution specifies that the
Commonwealth Parliament has the ability to pass legislation on the topic of
marriage.36 Furthermore, in 2004, the Howard Government enacted the Marriage
Amendment Act 2004 (Cth) which defined marriage as the union of a man and a
woman to the exclusion of all others, voluntarily entered into for life.37 Thus far, no
attempt has been made on changing the amendment, but rather to advocate for equal
rights under the law. For reasons mentioned above, for the LGBTIQ cause, anyway,
basing an argument for equality is neither helpful nor appropriate. An amendment of
the current definition of marriage in the Marriage Act 1961 should only be made
unless there is a basis upon which homosexual relations can be viewed as equal to the
comprehensive bond of two different sexes.

32 Ludger H. Viefhues-Bailey, Between a Man and a Woman? : Why Conservatives Oppose SameSex Marriage (Colombia University Press, 2010) 80.

33 Ibid.
34 ibid pg 81.
35 ibid
36 Commonwealth of Australia Constitution Act 1900 s 51.
37 Marriage Act 1961 (Cth) s5(1).
7

On a legalistic perspective, while parliament retains the constitutional power to amend

such legislation to legalise same-sex marriages, Augusto Zimmerman argues that it is
not entirely clear if such a radical move could be fulfilled given that the Australian
Constitution should be interpreted in the same way as it was when enacted.38 The
High Court has traditionally adopted the understanding that the definitions of
constitutional terms must take on board the essential meaning at date the
Constitution was enacted in 190039 given that the original intention of the fathers of
the federation was to limit the ability of the Federal parliament to expand its own
powers at its own convenience by changing the meanings of the words in the
Constitution.40
4. Conscientious objection and legal protections
The problem with the current understanding of marriage is that, although the
definition is not exclusive to religions, it is one which is upheld by most religions and
while the separation of church and state is real, marriage is an institution which has
seen a direct interplay between non-religious politics and the Church. Put simply, the
Churchs understanding of marriage is one which, at this present moment, is backed
up by law and so any attempt to redefine marriage would have negative implications
on religious liberty.
Given that the state is objective, should the revisionist definition of marriage stand
beside the conjugal definition of marriage, any opposite to the former, in the eyes of
the state would be viewed as bigotry and discrimination.41 As a result, institutions
and individuals may have government benefits stripped from them for holding a view
which, judicially is irrational. Furthermore, individuals and insitutions will have
increased liability under civil and anti-discrimination laws for conscientiously
objecting to providing goods and services, and thus suffocating business for
professionals.

38 Zimmerman, Augusto, 'The Constitutionality of Same-Sex Marriage in Australia' (2013) 27 BYU

Journal of Public Law, 473.

39 ibid.
40 ibid 475.
41Sherif Gergis, Robert P. George and Ryan T. Anderson, What is marriage? (2012) Harvard Journal
of Law and Public Policy, 264,

As a result, in the situation where same-sex marriage were to be legalised, it is

important that discussion is had as to what sort of protections will be offered to the
Church by the state as a result of such radical change. Given that both church and
state hold marriage to be the greatest institution, a division, with no adequate solution,
places serious risk on the stability of the polis.
The Amici Brief submitted to the Supreme Court of the United States should be a
fundamental basis for legislators as they attempt to enact protections. Fundamentally,
the legislature and the judiciary should continue to allow for religious liberty in the
sense that certain religions are allowed to uphold the doctrines of their faith.
Marriage, within the eyes of the Catholic Church, for instance, is held to be a
sacrament. Given that it is held with the utmost theological importance, any moves by
state powers to coerce Churches into adhering to state law should not be allowed.
Simply stopping priests from engaging in solemnising same-sex marriages is
inadequate as Church doctrine does not only apply to pastors. Conscientious objection
should continue to be allowed for any religious person should be granted immunity
from anti-discrimination laws (which should protect religious individuals and
institutions too) to the extent that any objection is based on doctrines pertaining to
marriage while not actively discriminating on the basis of race.
This also means that no penalties should be imposed on to religious institutions for a
differing view of marriage. For example, public funding and tax exemptions should
not be cut on the basis that both church and state have opposing views. Furthermore,
schools should not be coerced into teaching material which is inherently against their
faith.
In conclusion, it is important that, if same-sex marriage were to be legalised, there is a
strict separation between civil marriages and religious marriages pertaining to
homosexual relations. Legislators should, as a result, be wary of such risks and act
adequately to ensure that religious liberties are not trampled upon.
Bibliography

BBC, New Zealand legalises same-sex marriage (17 April, 2013)

http://www.bbc.com/news/world-22184232
Forbes, Facebook Launches 'Celebrate Pride' Tool Which Puts A Rainbow Filter
Over Profile Pictures (27 June, 2015)
http://www.forbes.com/sites/amitchowdhry/2015/06/27/facebook-celebratepride/#22ebc22c607c
Breitbart, From the Sexual Revolution to the LGBT Revolution: How Did We Get
Here? (1 July, 2015) http://www.breitbart.com/big-government/2015/07/01/from-thesexual-revolution-to-the-lgbt-revolution-how-did-we-get-here/
BBC, Huge Republic of Ireland vote for gay marriage (23 May, 2015)
http://www.bbc.com/news/world-europe-32858501
Andrew Bolt, No, most Irish did not say yes to same-sex marriage (4 June, 2015)
http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/no_m
ost_irish_did_not_say_yes_to_same_sex_marriage/
Fred Miller, Political naturalism (2011) Stanford Encyclopedia of Philosophy
http://plato.stanford.edu/entries/aristotle-politics/supplement3.html
Peter Koritansky, Thomas Aquinas: Political Philosophy
http://www.iep.utm.edu/aqui-pol/
James W. Skillen, Same-sex Marriage is not a civil right (2004) Public Justice
Report the Second Quarter of 2004
http://www.cpjustice.org/public/page/content/marriage_not_civil_right
Marriage (Same Sex Couples) Act 2013 (UK)
Obergefell v Hodges (2015) SCOTUS Scalia J dissent
Sherif Gergis, Robert P. George and Ryan T. Anderson, What is marriage? (2012)
Harvard Journal of Law and Public Policy, 246.
John Hittinger, Plato and Aristotle on the Family and the Polis (2013) The Saint
Anselm Journal 8.2, 3.
James W. Skillen, Same-sex Marriage is not a civil right (2004) Public Justice
Report the Second Quarter of 2004
http://www.cpjustice.org/public/page/content/marriage_not_civil_right
Ludger H. Viefhues-Bailey, Between a Man and a Woman? : Why Conservatives
Oppose Same-Sex Marriage (Colombia University Press, 2010) 80.
Commonwealth of Australia Constitution Act 1900 s 51.

10

Marriage Act 1961 (Cth) s5(1).

Zimmerman, Augusto, 'The Constitutionality of Same-Sex Marriage
in Australia' (2013) 27 BYU Journal of Public Law, 473.

11