The messy same-sex marriage debate continues in Australia and in the US. I remain of the view that we should not extend the definition of marriage to include same-sex unions; that we should legislate to recognise same-sex unions; and that we should leave questions about the legal availability of new technologies for the creation of children by same-sex couples for determination at a later date.
In Australia, the issue is focused in the Parliament; and in the US in the courts. Here the Prime Minister has committed her party to consulting with the public while deciding how to deal with the Greens on the issue. There the President has decided his Administration will no longer argue for the constitutionality of the 1996 Defense of Marriage Act in court proceedings.
For many same-sex marriage advocates, the debate is a matter of equality and non-discrimination. A person should be allowed to marry the person they love whatever the gender of the partner.
The trouble with much human rights discourse is that it is too readily reduced to assertions about individual rights and non-discrimination. Human rights discourse needs to be more subtle when it comes to a conflict of rights situation, or when the law is having to consider the public interest or the common good as well as individual liberties.
Historically the state had little interest in recognising and enhancing the place of marriage as a social institution just for the good of the couple. The state interest in marriage is just as focused on the rights of the children and the need to provide support for the social structure most suited to the rearing and nurturing of children.
Though there has never been an ideal time when all children were born into a marriage, we have maintained marriage as the ideal institution for the raising of children by their biological parents.
In Australian civil law, we recognise de facto relationships as well as marriages. Marriage is covered by Commonwealth law, while de facto relationships are largely governed by state and territory laws. Marriage should remain a Commonwealth matter.
If the Commonwealth Parliament were to attempt legislatively to expand the common law definition of marriage to include a union between two persons of the same-sex, there would probably be a High Court challenge to determine whether such an attempt was constitutional, given that the Commonwealth Parliament has a restricted power to make laws 'with respect to marriage'.
Under our Constitution,