Honours Thesis - Elodie Cheesman.pdf

141 sue v hill 1999 199 clr 462 502 142 the hon

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141 Sue v Hill (1999) 199 CLR 462, 502. 142 The Hon Justice Michael Kirby, above n 20, 9.
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29 In reality, the ‘slippery slope’ argument does not hold in interpreting the Marriage (or any other) Power. The Court cannot have wanton reference to capricious values or circumstances; the arguments that same-sex marriage might be encompassed by the term ‘marriage’ are based on a perception of strong, established social recognition (see Section 3.4). Appropriating Bill Maher’s humorous take on same-sex marriage to the constitutional setting: ‘[Recognition of same-sex marriage] is not a slippery slope to [recognition of] rampant inter- species coupling. When women got the right to vote, it didn’t lead to hamsters voting. No court has extended the equal protection clause to salmon…’ 143 Clearly marriage cannot refer to anything . Non-originalism seeks a pragmatic solution to the needs of contemporary society which reliance on original intention cannot offer. Indeed, an analogy may be drawn to constitutional interpretation of the ‘voting franchise’, for which even more cautious judges partly accepted the ‘evolving meaning’ thesis. 144 Whilst ‘the people’ would originally have referred to men (of certain qualification) and non-Indigenous persons, in Langer v Commonwealth , McHugh J construed ‘the people’ as an abstraction ‘whose content will change from time to time’. 145 In McGinty v Western Australia , Brennan J accepted that the franchise has historically expanded in scope such that it is ‘at least arguable that the qualifications of age, sex, race and property which limited the franchise in earlier times could not now be reimposed so as to deprive a citizen of the right to vote’. 146 To construe ‘marriage’ as applying only to heterosexual marriages may be as incongruous as construing the voting franchise as applying only to non-Indigenous, propertied men. 143 Bill Maher, New Rules: Polite Musings from a Timid Observer (Rodale, 2005), 113. 144 Goldsworthy, ‘Originalism in Constitutional Interpretation’, above n 42, 3. 145 (1996) 186 CLR 302, 342. 146 (1996) 186 CLR 140, 166-167.
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30 5 MIDDLE WAYS There are undoubtedly great theoretical differences between the original intention and progressivist doctrines; the former privileges the meaning of constitutional terms as understood in 1900 and intended by the Framers, the latter aims to interpret the Constitution in a way amenable to the needs and values of modern society. However, in reality most decisions will take account of both imperatives. This is because ‘the tension between stability and change exists under either view’. 147 Attempts to interpret s 51(xxi) exemplify this tension, as the power deals with an historically rich and enduring institution, which is nevertheless subject to much social and cultural change. What other approaches, which combine the original intention and progressivist methodologies, might the High Court then utilize?
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