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Lindell, Geoffrey --- "Constitutional Issues Regarding Same-Sex Marriage: A Comparative Survey - North America and Australasia" [2008] SydLawRw 2; (2008) 30(1) Sydney Law Review 27

[∗] Professorial Fellow, Melbourne Law School and Adjunct Professor of Law, Adelaide University and the Australian National University.

[1] William Shakespeare, Hamlet, Act 3, Scene 1 (‘To be, or not to be: that is the question …’).

[2] Commonwealth Constitution s 51(xxi).

[3] Constitution Act 1867 (UK) s 91(26) which gives the Dominion Parliament exclusive power to legislate with respect to ‘Marriage and Divorce’ and compare s 92(12) which gives the legislatures of the Provinces exclusive power to legislate with respect to the ‘The Solemnization of Marriage in the Province’.

[4] The Australian Concise Oxford Dictionary (2nd ed, 1992; reprinted 1993) at 692.

[5] Webster’s Third New International Dictionary of the English Language, Unabridged (2002) at 1384.

[6] Quilter v Attorney-General of New Zealand [1997] NZCA 207; [1998] 1 NZLR 523 at 549 (Thomas J).

[7] James Hastings (ed), Encyclopaedia of Religion and Ethics (1971) vol viii at 445 (‘Marriage (Greek’)).

[8] The New Encyclopaedia Britannica: Micropaedia (15th ed, 1995) vol 7 at 871 (‘marriage’).

[9] Marriage Act 1961 (Cth) ss 5(1) (definition of ‘marriage’), 88B(4), as amended by the Marriage Amendment Act 2004 (Cth).

[10] United States Constitution, Amendment 14 § 1.

[11] Cass R Sunstein, Designing Democracy: What Constitutions Do (2001) at 206.

[12] Id at 193. See generally ch 8 (‘Homosexuality and the Constitution’) of the same book at 183–208 and also for an earlier similar expression of his views: Cass R Sunstein, ‘Foreword: Leaving Things Undecided’ (1996) 110 Harvard Law Review 4 at 96–99, especially 97.

[13] Hawaii: Baehr v Lewin 852 P 2d 44 (1993); Vermont: Baker v State 744 A 2d 864 (1999); Massachusetts: Goodridge v Department of Public Health 798 NE 2d 941 (2003) and In re Opinions of the Justices to the Senate 802 NE 2d 565 (2004). See also Graham Gee, ‘Same-sex Marriage in Massachusetts: Judicial Interplay Between Federal and State Courts’ [2004] Public Law 252.

[14] [2003] USSC 4776; 539 US 558 (2003) (Stevens, O’Connor, Kennedy, Souter, Ginsburg & Breyer JJ; Rehnquist CJ, Scalia & Thomas JJ dissenting). Only O’Connor J relied on the Equal Protection Clause of the Fourteenth Amendment but she was careful to reserve her position on the same-sex marriage issue.

[15] William J Brennan, ‘The Constitution of the United States: Contemporary Ratification’ (1985– 1986) 27 South Texas Law Review 433 especially at 436–437 (speech delivered at Georgetown University, 12 October, 1985). See also Mello below n 18 at 42–44.

[16] Goodridge v Department of Public Health 798 NE 2d 941(2003) (‘Goodridge’).

[17] In re Opinions of the Justices to the Senate 802 NE 2d 565 (2004) (‘In re Opinions’).

[18] Such a law has been passed in Vermont, as to which see generally Michael Mello, Legalizing Gay Marriage (2004). There is an obvious analogy here with the ‘separate-but-equal’ concept: id at 23–4. The inadequacy of such a measure in meeting the guarantee of equality is rejected by Mello: id, especially ch 5 at 142–192. In this article a legal relationship under which same-sex partners enjoy the same rights and duties as those that are conferred or imposed on persons of the opposite sex in a marriage without being referred to as a ‘marriage’, is described as a ‘civil union’ as distinct from ‘same-sex marriage’. An alternative description of civil unions is ‘domestic partnerships’.

[19] Halpern (2003) 225 DLR (4th) 529. Courts in several other Provinces followed suit. After the Canadian Supreme Court upheld the ability of the Dominion Parliament to recognise same-sex marriage in an advisory opinion in Reference re Same-Sex Marriage (2004) 246 DLR (4th) 193 that Parliament subsequently passed legislation to give effect to such recognition: Civil Marriage Act 2005 (Can).

[20] Halpern (2003) 225 DLR (4th) 529 at 554–562 [77]–[108], applying the test established in Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497 at 535 quoted in Halpern at 555 [80].

[21] [1967] USSC 168; 388 US 1 (1967) and see Sunstein, above n11 at 198–200.

[22] Halpern (2003) 225 DLR (4th) 529 at 553 [71].

[23] Goodridge 798 NE 2d 941 (2003) at 961 n 23.

[24] Id at 961–962. Even though impotence can, in certain circumstances, be a ground for subsequently nullifying a marriage at the election of a disaffected party: at 961 n 22. The point made in the text is also underlined by the view adopted by the United States Supreme Court in Turner v Safley [1987] USSC 100; 482 US 78 (1987) when it upheld the fundamental right of prison inmates to marry because most inmates would eventually be released and such marriages were formed in the expectation that they would ultimately be consummated. The reference to ‘most inmates’ implies a recognition that not all inmates would eventually be released to enable the consummation of their marriage. The marriages in question were treated as ‘expressions of emotional support and public commitment’: at 95 and see, generally at 94–97. To similar effect are the remarks of the House of Lords in Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467 which suggest that the traditional emphasis of the institution of marriage on procreation has given way to emphasis on viewing marriage as also being based on the ‘mutual society, help and comfort’ that partners to a marriage should provide each other: at 480 [46] per Lord Nicholls of Birkenhead.

[25] Goodridge 798 NE 2d 941 (2003) at 962–963.

[26] Id at 961, 963.

[27] Id at 963–964.

[28] Id at 967.

[29] Id at 965.

[30] Id at 964. An associated argument is that the recognition of same-sex marriages would encourage marriages of convenience to gain the benefits that attach to that institution: Baker v State 744 A 2d 864 (1999) at 885 n 14, 911.

[31] In Australia, see for example the effect of s 117 of the Commonwealth Constitution discussed in Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 486, 502–503, 504 and 520 and compare Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463. See also, in relation to s 109, McBain v Victoria [2000] FCA 1009; (2000) 99 FCR 116.

[32] 798 NE 2d 941 (2003) at 968–970.

[33] Halpern (2003) 225 DLR (4th) 529 at 569–572 [143]–[154].

[34] Above [pp 000] (at p 1).

[35] Lockyer v City and County of San Francisco 95 P3d 459 (2004) at 464.

[36] Id at 485.

[37] Arizona: Standhardt v Superior Court, ex rel County of Maricopa 77 P3d 451 (2003) (‘Standhard’)); Florida: Frandsen v County of Brevard 800 So 2d 757 (2001) especially at 759, review denied 828 So 2d 386 (2002); Indiana: Morrison v Sadler 821 NE 2d 15 (2005) (‘Morrison’); New Jersey: Lewis v Harris 908 A 2d 196 (2006) (‘Lewis’); New York: Hernandez v Robles 855 NE 2d 1 (2006) (‘Hernandez’); Washington: Andersen v King County 138 P 3d 963 (2006) (‘Andersen’). In California the Court of Appeals has also declined to recognise same-sex marriages: In re Marriage Cases 49 Cal Reptr 3d 675 (2006). Although this ruling reversed a lower court decision on the matter, the decision of the Court of Appeals has been appealed to the State’s highest appellate court which, as at the date of writing, had yet to determine the appeal. So far as New York is concerned, and shortly before this article went to print, the Appellate Division (4th Department) of the Supreme Court of that State is reported to have ruled on 1 February 2008 in favour of recognising a same sex marriage celebrated in Canada under what was described as the State of New York’s ‘“long standing ‘marriage recognition rule’” in Martinez v County of Monroe, 2008 NY Slip Op 00909: R McFadden, ‘State Court Recognizes Gay Marriages From Elsewhere’ The New York Times 2 February 2008 - <http://www.nytimes.com/2008/02/02/nyregion/02/nyregion/02samesex.html?_r=l & sq=same sex ma.> [available to me as at 3 February 2008]. However this article is only concerned with conflict of laws issues so far as they are relevant to the constitutional aspects of the recognition of same sex marriage.

[38] See for example Hernandezs 855 NE 2d 1 (2006) at 10–11; and Andersen 138 P3d 963 (2006) at 989–990.

[39] See for example Hernandezs 855 NE 2d 1 (2006) at 7–8; and Andersen 138 P 3d 963 (2006) at 969, 982–984.

[40] Hernandezs 855 NE 2d 1 (2006) at 7.

[41] Andersen 138 P 3d 963 (2006) at 969.

[42] Hernandezs 855 NE 2d 1 (2006) at 7–8.

[43] Id at 8.

[44] The point was neatly put by Fairhurst J in dissent by emphasising that the issue should have been whether not recognising same-sex marriages furthered that interest: Andersen 138 P 3d 963 (2006) at 1012–1013 and compare at 969 n 2. For a clear and more sympathetic analysis of the considerations relied on to justify the non-recognition of same-sex marriages, even though it failed to persuade me, see Frank Brennan, Acting on Conscience: How can we responsibly mix law, religion and politics? (2007) at 183–214 (ch 8).

[45] Andersen 138 P 3d 963 (2006) at 980 and see also at 969, 983 and 984; and Hernandez 855 NE 2d 1 (2006) at 10–12.

[46] Id at 9–10; Andersen 138 P3d 963 (2006) at 973–980.

[47] Hernandez 855 NE 2d 1 (2006) at 9–10.

[48] Lewis 908 A 2d 196 (2006) at 208–212 and see also at 222–23.

[49] Id at 221–224.

[50] Id at 217.

[51] Id at 219–220.

[52] See for example Adams v Howerton, [1982] USCA9 302; 673 F 2d 1036 (1982), certiorari denied 458 US 1111 (1982) — same-sex marriage partners held not to qualify as a citizen’s spouse within the meaning of the Immigration and Nationality Act (US). See also Smelt v County of Orange 374 F Supp 2d 861 (2005) where a Federal District Court in California upheld certain provisions of the Defense of Marriage Act 1996 (US) (s 3) cited and explained below in text accompanying nn 91–92 below. The provisions defined ‘marriage’ as a legal union between one man and one woman for the purposes of federal legislation.

[53] Compare the introduction of statutory Bills of Rights at the State and Territory levels of government: Charter of Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT).

[54] The Commonwealth Parliament does have the power to make laws for the recognition (and the denial of recognition) of same-sex marriages and civil unions in the Territories under s 122 of the Commonwealth Constitution. It also has legislative power to define the meaning of the term ‘marriage’ in any valid legislation passed in the exercise of other powers apart from that contained in s 51(xxi). Despite the extensive grant of self-government to the two internal Australian Territories, the Governor-General in Council retains the power to disallow legislation enacted by the legislatures created for those Territories: see Australian Capital Territory (Self-Government) Act 1988 (Cth) s 35 and the Northern Territory (Self-Government) Act 1978 (Cth) s 9. The reference to the ‘Governor General’ is usually taken to mean the Governor-General acting with the advice of the Federal Executive Council by reason of s 16A of the Acts Interpretation Act 1901 (Cth). Effectively this means that the power is exercised on the advice of the Federal Government. The power was exercised in the case of the Australian Capital Territory in relation to the Civil Unions Act 2006 (ACT) which made provision for civil unions because the Federal Government believed that it was an indirect attempt to widen the definition of marriage which was seen as the exclusive preserve of the Federal Parliament: see Commonwealth of Australia Special Gazette, No S 93, 14 June 2006 and Federal Attorney-General, Philip Ruddock, ‘Government moves to protect the status of marriage’ (Press release 106/2006, 13 June 2006).

[55] See for example Grain Pool of WA v Commonwealth (2000) 202 CLR 479 at 491–496, 511–513 [13]–[26], [76]–[80] (Gleeson, Gaudron, McHugh, Gummow, Hayne & Callinan JJ) and compare at 515, 518–532 [90], [97]–[135] (Kirby J) (‘Grain Pool’). In that case the High Court dealt with the meaning of the terms used in s 51(xviii) of the Constitution when it upheld the validity of the Plant Variety Rights Act 1987 and Plant Breeder’s Rights Act 1994 (Cth) which provided exclusive rights over new plant varieties. See also Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 41–51 [134]–[158] (McHugh J); and Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322 at 385–386 [159]–[162] (Gummow, Hayne & Heydon JJ) and compare at 411 [243], 413 [249], 417 [264], 418 [266] (Kirby J) (‘Singh’). For a sophisticated and illuminating analysis of the meaning of constitutional terms which seeks to draw on theoretical perspectives, see Simon Evans, ‘The Meaning of Constitutional Terms: Essential Features, Family Resemblance and Theory-Based Approaches’ [2006] UNSWLawJl 24; (2006) 29 University of New South Wales Law Journal 207; and also the conventional treatment of the issue in Patrick H Lane, Lane’s Commentary on the Australian Constitution (2nd ed, 1997) at 909–913.

[56] R v Brislan; Ex parte Williams [1935] HCA 78; (1935) 54 CLR 262 (radio): Jones v Commonwealth (No 2) [1965] HCA 6; (1965) 112 CLR 206 (television).

[57] The Queen v L [1991] HCA 48; (1991) 174 CLR 379 at 404 (Dawson J) and compare Attorney-General for NSW v Brewery Employees Union of NSW [1908] HCA 94; (1908) 6 CLR 469 at 610 (Higgins J) who suggested that Parliament had the power under s 51(xxi) to ‘prescribe what unions are to be regarded as marriages’.

[58] Above text and note accompanying n 9, and see Bethell v Hilyard [1888] UKLawRpCh 37; (1887) 38 Ch D 220 cited in John Quick & Robert R Garran, The Annotated Constitution of the Australian Constitution (1901) at 608; and see also Hyde v Hyde (1866) LR 1 P & D 130. For a modern re-affirmation of the traditional meaning of the term marriage by the House of Lords see Bellinger v Bellinger (Lord Chancellor Intervening) [2003] UKHL 21; [2003] 2 AC 467 at 480 [46] (Lord Nicholls of Birkenhead).

[59] Brennan J seemed to support this view in Fisher v Fisher [1986] HCA 41; (1986) 161 CLR 376 at 455–456 and probably also in The Queen v L [1991] HCA 48; (1991) 174 CLR 379 at 392. Compare the refusal of Windeyer J in Attorney-General (Vic) v Commonwealth [1962] HCA 37; (1962) 107 CLR 529 at 576–577, to confine the meaning of ‘marriage’ in the Constitution to the definition in Hyde v Hyde (1866) LR 1 P & D 130 and, in particular, to decide whether the term might encompass polygamous marriage. Those authorities were referred to in Commonwealth Information and Research Services, Parliamentary Library Bills Digest No 155, 2003-04: Marriage Legislation Amendment Bill 2004 at 3–4 (‘Bills Digest’). See also Brennan, above n44 at 190–192 who also points to the difficulty mentioned in the accompanying text.

[60] See McHugh J in Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 553 [45], and Singh [2004] HCA 43; (2004) 222 CLR 322 at 343–344 n 73 [38]; and Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century’ [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677 at 699. It seems likely from his observations in Grain Pool (2000) 202 CLR 479 at 529 [127] and Singh [2004] HCA 43; (2004) 222 CLR 322 at 413 [249] that Kirby J would uphold the possibility, but he did not subscribe to the orthodox principles of constitutional interpretation and, similarly, Dan Meagher, ‘“The Times are They a-changin’? Can the Commonwealth Parliament Legislate for Same Sex Marriages?’ (2003) 17 Australian Journal of Family Law 134. Meagher has adopted a modified approach to those principles.

[61] Halpern’s case (2003) 225 DLR (4th) 529 at 547 [46].

[62] Reference re Same Sex Marriage (2004) 246 DLR (4th) 193 especially at 203–207 [16]–[30]. The Court placed strong emphasis on the principle whereby the Canadian Constitution is treated as ‘a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life’: at 204[22]. The Court also concluded that such legislation would not trench upon Provincial legislative power: at 207–208 [31]–[34].

[63] Id at [34].

[64] See also Brennan, above n44 at 192–193 who also takes the same view as that expressed in the accompanying text.

[65] See Russell v Russell (1976) 134 CLR 495 at 546 (Jacobs J); Cormick and Cormick v Salmon [1984] HCA 79; (1984) 156 CLR 170 at 178 (Murphy J); and Quick & Garran, above n58 at 608, 610.

[66] (1976) 134 CLR 495 where it was held that the power was not confined to the celebration of marriage and the creation of rights and duties arising out of that relationship, but also extends to the enforcement of those rights and duties: per Stephen, Mason and Jacobs JJ; Barwick CJ and Gibbs J dissenting.

[67] Sub-section 46(1).

[68] Above n9. Despite the availability of divorce under the Family Law Act 1975 (Cth), the current statutory definition of marriage surprisingly defines the union as one ‘entered into for life’. It has been said that the reference to the similar common law definition of ‘marriage’ in the Family Law Act ‘can only be regarded as propaganda contradicted by the substantial provisions of the [Family Law] Act which, except for the creation of counselling facilities, are directed to the speedy termination of the married state’: Seidler v Schallhlhofer [1982] FLC 91–273 at 77, 552–1 per Hutley JA quoted in Bills Digest, above n59 at 17–18 n 55.

[69] Attorney-General v Kevin [2003] FamCA 94; (2003) 30 Fam LR 1. Compare the refusal of American State courts to accept this view. See for example Kantaras v Kantaras 884 So 2d 155 (Fla Dist Ct App, 2004) where the Kevin case was specifically drawn to the court’s attention and rejected: at 160–161: review denied 898 So 2d 80 (2005).

[70] See Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 and compare Leeth v Commonwealth (1992) 174 CLR 455.

[71] Constitution s 51(xxix). It was established that under that power the Parliament could legislate with respect to places, persons and things physically external to Australia: Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 at 528–31, 599–604, 632, 696 and 712–14 and Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183 at 193–96. This view of the external affairs power was recently followed and applied, but only by a majority, in XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532 (Gleeson CJ, Gummow, Hayne & Crennan JJ). The recognition of same-sex marriages celebrated overseas would also have satisfied the narrowest definition of an external affair as formulated by Gibbs CJ in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 which he thought encompassed ‘a relationship with other countries or with persons and things outside Australia’. In his view a law would be valid under this power if it regulated ‘transactions between Australia and other countries, or between residents of Australia and residents of other countries … whatever its subject matter’: at 201–202.

[72] (1866) LR 1 P & D 130.

[73] This is distinguishable from the provisions which purported to prohibit the use of expressions in everyday use such as ‘1788’, ‘1988’ in connection with a business, trade or occupation or in combination with ‘Melbourne’ or ‘Sydney’ and ‘Family Law Conference Melbourne 1988’. These were held invalid in Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79 especially at 99–100 as an exercise of the implied nationhood power. They were not legal terms used to describe the subject matters denoted by express heads of federal legislative power. Presumably the same ability to prevent confusion could apply to ‘copyright, patents … and trade marks’ and ‘bankruptcy’ in Constitution ss 51(xviii) and (xvii) respectively.

[74] Geoffrey Lindell, ‘State Legislative Power to Enact Same-Sex Marriage Legislation, and the Effect of the Marriage Act 1961 (Cth) as amended by the Marriage Amendment Act 2004 (Cth)’ (2006) 9 Constitutional Law and Policy Review 25 at 27–28 [11]–[15], 29 [18] and 30–31 [21]–[28]. Much of the analysis that follows in the text on the capacity of State Parliaments to legislate for same-sex marriage is taken from this article. A contrary view was expressed by Professor George Williams in an opinion provided to the Tasmanian Greens Party which dealt with the validity of a Same-sex Marriage Bill tabled in the Tasmanian Parliament in 2005: ‘Advice regarding the proposed Same-Sex Marriage Act(2006) 9 Constitutional Law and Policy Review 21.

[75] Commonwealth, Parliamentary Debates, House of Representatives, 24 June 2004 (Philip Ruddock) at 31460 and Senate, 12 August 2004 (Ian MacDonald) at 26504 and see also at 26555.

[76] Marriage Act 1961 (Cth), as amended in 2004, s 88EA.

[77] Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88 at 94; Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625 at 632, Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 575; and see generally Dennis Pearce & Robert Geddes, Statutory Interpretation in Australia (6th ed, 2006) at 140 [4,28], 142 [4.30].

[78] See text in the para containing n66 above.

[79] Commonwealth, Parliamentary Debates House of Representatives, 24 June 2004 (Philip Ruddock) at 31463 and (Senate), 12 August 2004 (Helen Coonan) at 26570. Compare however the actions of the Federal Government in bringing about the disallowance of the legislation mentioned above at n54.

[80] See also 28 USC §§ 1738, 1739 and the Evidence Act 1995 (Cth) s 185.

[81] Above n 58 at 961.

[82] Id at 962, and see Martin Davies, Sam Ricketson & Geoffrey Lindell, Conflict of Laws: Commentary and Materials (1997) at 45 [2.2.9]. I indicated there that it is perhaps more likely that the above concern would now be seen as coming within the province of s 117 which has in recent times assumed growing importance in the field of Australian private international law: ibid.

[83] Gee, above n13 at 253–254 n 15.

[84] For an example of a case where an interstate same-sex union was not recognised, see Rosengarten v Downes 802 A 2d 170 (2002) certiorari granted: 806 A 2d 1066 (2002) but the appeal was later dismissed as moot. In that case, a Connecticut court refused to recognise a civil union celebrated in Vermont in an action to dissolve that union, both because it could not have qualified as a marriage given the sex of the parties and also because it was not regarded as a marriage in the State where it was celebrated but only a civil union. See also Eugene F Scoles et al, Conflict of Laws (4th ed, 2004) at 593.

[85] David D Siegel, Conflicts in a Nutshell (2nd ed, 1994) at 169.

[86] 354 F Supp 2d 1298 (M D Fla, 2005) (‘Wilson’).

[87] Id at 1303.

[88] Pfieffer v Rogerson [2000] HCA 36; (2000) 203 CLR 503 at 533 [63]–[64], but this may be affected by the inability of the forum to grant curial relief in relation to the application of the law of the sister State noted at 542 [95], 543 [99].

[89] See the combined operation of ss 4, 9, 11 (as a ‘written law of another State or Territory’ in sub-s 11(1) (b)) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (all States and Territories): Davies, Ricketson & Lindell, above n82, 66 [2.2.34]. See also Lindell, above n 74 at 33–34 [37].

[90] This would not be the first time that Australian legislative developments have obviated the need to obtain a full elucidation of the operation of s 118. For other such developments see Davies, Ricketson & Lindell, above n82, 44–45 [2.2.8].

[91] 28 USC § 1738C. The same legislation also enacted 1 § 7 which provides that the term ‘marriage’ in federal legislation was intended to be confined to legal unions between men and women and the term ‘spouse’ was given a corresponding meaning. The Hawaiian case is cited above, n13.

[92] It seems that 38 States had passed legislation to take advantage of this measure by the time of the publication of the article by Gee, above n13 at 254 (Table A).

[93] The Constitution of the United States of America: Analysis and Interpretation (Library of Congress, 2002), 908 (as updated in 2006 Supplement): http://www.gpoaccess.gov/constitution/pdf2002/014.pdf.

[94] See for example Standhardt 77 P3d 451 (2003) at 459 n 13. Although a Federal District Court in California upheld the validity of that Act, the holding was confined to the provisions which defined the meaning of ‘marriage’ for the purposes of federal legislation: Smelt v County of Orange 374 F Supp 2d 861 (2005).

[95] 354 F Supp 2d 1298 (2005) at 1303. See also Scoles, above n84, which predated this case and described as ‘persuasive’ the argument that the Full Faith and Credit Clause is irrelevant ‘because it already permits exceptions to its commands for unpalatable results’: at 594 n 10.

[96] One of the possible views identified in relation to the corresponding Australian clause, as to which see Davies, Ricketson & Lindell, above n82 at 47 [2.2.17 (b) and (c)].

[97] See Scoles, above n84 at 570–571 and see also 564–566, 570–583. Reference is made to the few States which have adopted legislation approved by the National Conference of Commissioners on Uniform Law in 1943. Amongst other things, the proposed uniform legislation recognises that the law of a person’s domicile is effective to prevent the recognition of marriages which are prohibited under that law: at 579– 580.

[98] 354 F Supp 2d 1298 (2005) at 1303.

[99] For a succinct summary of the various views that could be taken of the meaning and operation of s 118, see Constitutional Commission: Final Report (1988) vol 2 at 705–706 [10.344] and also set out in Davies, Ricketson & Lindell, above n82 at 47 [2.2.17] and see generally at 44–47 [2.2.8]–[2.2.15].

[100] See above text accompanying n11.

[101] See, as regards the United States Constitution, Art V. The most common method invoked requires a proposed amendment to be approved by two-thirds of both Houses of Congress and the subsequent ratification of the proposed amendment by the legislatures of three-fourths of all the States. To date there have been 27 amendments.

[102] 108th Congress, 1st Session, House of Representatives Resolution 56, 21 May 2003 (117 sponsors) and Senate Journal Resolution 26, 25 November 2003. See also Senate Journal Resolution 30, 22 March 2004 proposed in the 2nd Session of the same Congress. It was sometimes referred to as the ‘Musgrave Amendment’ after the name of one of its co-sponsors in the House of Representatives.

[103] White House, ‘President Calls for Constitutional Amendment Protecting Marriage’ (Press Statement, 24 February 2004) <http://www.whitehouse.gov/news/releases/2004/02/20040224-2.html> .

[104] 109th Congress, 1st Session, Senate Journal Resolution 1, 24 January 2005 (‘S J Res 1 dated 24 January 2005’); House of Representatives Journal Resolution 39, 17 March 2005 (‘H J Res 39 dated 17 March 2005’).

[105] H J Res 22, 6 February 2007.

[106] S J Res 1, 24 January 2005. In the current House of Representatives version the provisions in the second sentence of clause 2 would be replaced with provisions which would deprive all courts in the United States of the ‘jurisdiction to determine whether the Federal and State constitutions require that the legal incidents of marriage be conferred upon any union other than a legal union between one man and one woman’.

[107] H J Res 39 dated 17 March 2005.

[108] Alan Cooperman, ‘Little Consensus on Marriage Amendment: Even Authors Disagree on the Meaning of Its Text’ The Washington Post (14 February 2004) at A1 and A18; David Von Drehle, ‘Legal Confusion Over Gay Marriage: Who Is, and Who Isn’t, Wed Is Subject of Great Debate’ The Washington Post (27 February 2004) at A8.

[109] Mike Allen & Alan Cooperman, ‘Bush Backs Amendment Banning Gay Marriage: President Says States Could Rule on Civil Unions’ The Washington Post (25 February 2004) at A1 and A14 (‘Bush said he wants to preserve marriage as a union of one man and one woman but allow States to determine whether same-sex couples should receive various benefits, a formula that apparently would allow the kind of civil unions and domestic partnership arrangements that exist in Vermont and California’).

[110] Carl Hulse, ‘Backers Revise Amendment on Marriage’ The New York Times (23 March 2004) <http://www.nytimes.com/2004/03/23/politics/23AMEN.html?pagewanted=print & position=> Alan Cooperman, ‘Same-Sex Marriage Proposal Retooled: States Could Enact Gay Civil Unions’ The Washington Post (23 March 2004) at A4.

[111] In re Opinions of the Justices to the Senate 802 N E 2d 565 (2004) at 570 n 4, 572 n 1.

[112] William Shakespeare, Romeo and Juliet, Act 2, Scene 2.

[113] Text in the paragraph containing n66 above and authority cited in that note.

[114] Anderson 138 P 3d 963 (2006) Appendix A at 1010–1011 which listed 19 States which had adopted such amendments: at 1012, and note that the same list should have indicated that Alabama had also adopted such an amendment: Constitution, Amendment 774 (2006). The same list also listed an additional six States as having had constitutional amendments pending for election in 2006: at 1012. They were subsequently adopted at those elections: Idaho: Constitution, Art III § 28; South Carolina: Constitution, Art XVII § 15; South Dakota: Constitution, Art XXI; Tennessee: Constitution, Art XI § 18; Virginia: Constitution, Art I § 15A; Wisconsin: Art XIII § 13.

[115] West Virginia State Board of Education v Barnette [1943] USSC 130; 319 US 624 (1943) at 638; Lucas v Forty-Fourth General Assembly of Colorado [1964] USSC 132; 377 US 713 (1964) at 736; Citizens for Equal Protection, Inc v Bruning 368 F Supp 2d 980 (2005) at 1003 (‘Bruning’).

[116] Bruning 368 F Supp 2d 980 (2005).

[117] [2006] USCA8 505; 455 F 3d 859 (8th Cir, 2006).

[118] 368 F Supp 2d 980 (2005) at 985 n 1 (‘The plaintiffs expressly disclaim an interest in recognition of same-sex marriages, civil unions or domestic partnerships as a remedy in this case. They seek only ‘a level playing field, an equal opportunity to convince the people's elected representatives that same-sex relationships deserve legal protection’ and ‘equal access, not guaranteed success, in the political arena’.); and also 1000 n 18.

[119] Nebraska Constitution, Art I § 29.

[120] 368 F Supp 2d 980 (2005) at 997–1005. The amendment was also found invalid as breaching the First Amendment and because it was a Bill of Attainder in violation of Art 1 § 9 of the United States Constitution.

[121] Romer v Evans [1996] USSC 45; 517 US 620 (1996).

[122] [2006] USCA8 505; 455 F 3d 859 (2006) at 867–869. The Court also held that the challenged legislation did not amount to a Bill of Attainder: at 869.

[123] [2006] USCA8 505; 455 F 3d 859 at 870 (2006).

[124] Li v State 110 P 3d 91 (2005). The State in question was Oregon.

[125] Id at 98, 102.

[126] (2003) 225 DLR (4th) 529.

[127] The attempt by a newly elected national conservative government to repeal the legislation cited above in n19, was defeated: Tenille Bonoguoure, ‘House votes not to reopen same-sex marriage issue’ The Globe and Mail (7 December 2006) <http:www.theglobemail.com/servlet/story/RTGAM.20061207.wsamesex07/BNSt> and Gloria Galloway, ‘Same-sex marriage file closed for good, PM says’ The Globe and Mail (8 December 2006) at A1.

[128] The other aspects concern the existence of the right to receive damages and the availability of an action for a declaration regarding the infringement of the rights and freedoms contained in the Bill of Rights, probably contrary to what was intended: Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 and Ellen France, ‘A Bill of Rights?: The New Zealand Experiment’ in Clement Macintyre and John Williams (eds), Peace Order and Good Government: State Constitutional and Parliamentary Reform (2003) 84 at 86–87. See also the controversial case which dealt with the restricting effect of the Bill of Rights and other statutory provisions on subsequent legislation concerning the sentences to be imposed on convicted criminals: R v Pora [2000] NZCA 403; [2001] 2 NZLR 37 (CA) and, generally, Janet McLean, ‘Legislative Invalidation, Human Rights Protection and s 4 of the New Zealand Bill of Rights Act’ (2001) 4 New Zealand Law Review 421.

[129] [1997] NZCA 207; [1998] 1 NZLR 523 (CA) (‘Quilter’). For a similar attempt directed at the recognition in England of a foreign same-sex marriage entered into in Canada by reference to the need for the English principles of private international law to comply with the Human Rights Act 1998 (UK), see Wilkinson v Kitzinger [2006] EWHC 2022. The attempt failed because it was not shown that the European Convention on Human Rights, which is partially incorporated into United Kingdom law, required the recognition of such marriages.

[130] Per Richardson P, Gault and Keith JJ; Tipping and Thomas JJ dissenting.

[131] [1967] USSC 168; 388 US 1 (1967). See the discussion above text accompanying nn 20–21 and Quilter [1997] NZCA 207; [1998] 1 NZLR 523 at 557 (Keith J) and 537–538 (Thomas J) but compare at 527 (Gault J).

[132] Bill of Rights, recital in Preamble para (b).

[133] Quilter [1997] NZCA 207; [1998] 1 NZLR 523 at 560–563 (Keith J) with whose reasons Richardson P and Gault J agreed at 526 and 527 respectively.

[134] Compare the discussion of this issue in the judgment of Thomas and Tipping JJ in their separate judgments: Quilter [1997] NZCA 207; [1998] 1 NZLR 523 at 550–554 and 576–577, respectively.

[135] To quote the words of Keith J: id at 555. See also at 526 (Richardson P and Gault J), 547–548 (Thomas J), 581 (Tipping J).

[136] Id at 581 (Tipping J).

[137] Civil Union Act 2004 (NZ).

[138] The description given in a work of fiction: Louis Auchincloss, The Partners (1974).

[139] Wolfgang Friedmann, Legal Theory (4th ed, 1960) at 18 and compare the contrast drawn by Aristotle between persons being allowed to rule in their own interests and ‘[t]he magistrate on the other hand [who] is the guardian of justice, and if of justice, then of equality also’: The Nichomachean Ethics (Oxford World’s Classics, paperback re-issue, 1998) at Book V Ch 6, 123.

[140] Justice, Law, and Argument: Essays on Moral and Legal Reasoning (1980) at 92.

[141] Id at 92–93.

[142] 798 NE 2d 941 (2003). For the earlier discussion see above text accompanying nn 16–18, 20–32.

[143] 908 A 2d 196 (2006). For the earlier discussion see above text accompanying nn 48–51.

[144] Mabo v Queensland (No 1) (1988) 166 CLR 186; Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1; Wik Peoples v Queensland (1996) 187 CLR 1.

[145] Except as regards the inability of State laws to prevail against federal statutory provisions which prevented discriminatory interference with native title because of s 109 of the Commonwealth Constitution.

[146] Alan Bullock & Stephen Trombley (eds), The New Fontana Dictionary of Modern Thought (3rd ed, 1999) at 280.

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