Honours Thesis - Elodie Cheesman.pdf

Hendricks v procureur général québec 2002 rjq 2506

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Hendricks v Procureur Général (Québec) [2002] RJQ 2506; Dunbar v Yukon (2004) 122 CRR (2d) 149. The constitutionality of a same-sex inclusive marriage definition was upheld in Reference re Same-Sex Marriage [2004] 3 SCR 698. In 2005, the Civil Marriage Act (S.C. 2005, c.33) was enacted, providing a gender-neutral marriage definition. 3 Marriage Act 1961 (Cth) s 88EA, as amended by Marriage Amendment Act 2004 (Cth) sch 1 item 3. 4 The Hon Alastair Nicholson, ‘The Legal Regulation of Marriage’ (2005) 29 Melbourne University Law Review 556, 556. 5 Note that the broader issue of ‘marriage equality’ also concerns the rights of transgender and intersex persons to marry, but is beyond the scope of this paper. 6 As at 21 May 2013, provided that Uruguay and New Zealand enact legislation approved by their lawmakers; Laura Smith-Park, ‘UK’s House of Commons approves same-sex marriage’, CNN (online), 21 May 2013 < >.
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3 federal purposes, and asserts that no state shall be required to recognize inter-state same-sex marriages. 7 Capturing the spirit of the dissension is Justice Ruth Bader Ginsburg’s statement that DOMA effectively creates ‘two kinds of marriage: the full marriage, and then this sort of skim milk marriage’ . 8 In the United States, state laws determine who is married, but federal law determines the entitlements of married couples, and denies same-sex couples a huge range of federal benefits which are afforded to their heterosexual peers. 9 In Australia, same-sex couples are not subject to such substantive inequities. A raft of legislative reforms in 2008 extended equal rights in areas such as veteran affairs, social security, employment, immigration, workers’ compensation, superannuation and income tax. 10 However, Justice Ginsburg’s analogy befits the Australian context, where inequality persists in relationship recognition. So long as same-sex couples are denied access to the socially-resonant institution of marriage, two classes of relationship are perpetuated; heterosexual unions as ‘full- cream’, and same-sex relationships as ‘skim-milk’. Mere legislative equality is nutritious enough, but a watery substitute for symbolic recognition. This paper explores how the seemingly unstoppable issue of same-sex marriage will play out in Australia. The next section outlines the central constitutional issue; namely, whether Federal Parliament is empowered to legislate for same-sex marriage; and how this question will come before the High Court. The paper then analyses different approaches to constitutional 7 Hollingsworth v Perry No. 12-144 (9 th Cir) considers California Constitution Art. 1, § 7.5; United States v Windsor No. 12-307 (2 nd Cir) considers Defense of Marriage Act 1 U.S.C § 7, 28 U.S.C. § 1738C (Supp. II 1996). 8 United States v Windsor No. 12-307 (2 nd Cir) (27 March 2013, oral arguments).
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