Honours Thesis - Elodie Cheesman.pdf

9 andrew koppelman dumb and doma why the defense of

Info icon This preview shows pages 4–6. Sign up to view the full content.

View Full Document Right Arrow Icon
9 Andrew Koppelman, ‘Dumb and Doma: Why the Defense of Marriage Act is Unconstitutional’ (1997) 85 Iowa Law Review 1; Adam Liptak and Peter Baker, ‘Justices Cast Doubt on Benefits Ban in U.S. Marriage Law’, The New York Times (online), 27 March 2013 < http://www.nytimes.com/2013/03/28/us/supreme-court-defense-of-marriage- act.html >. 10 The Federal Government acted on the Australian Human Rights Commission (formerly HREOC) report; HREOC, National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits ‘Same-Sex: Same Entitlements’ (2007); that had identified 58 Federal Acts that discriminated against same-sex couples. The reforms comprised: the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), The Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth), and the Same-Sex Relationships (Equal Treatment Commonwealth Laws – Superannuation) Act 2008 (Cth).
Image of page 4

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
4 interpretation; their strands, merits, drawbacks and past application; to determine how the question might be resolved under each, and whether this represents an appropriate course. Section 3 looks at originalism, Section 4 at non-originalism, and Section 5 at ‘middle-way’ approaches. 2 THE CONSTITUTIONAL ISSUE While questions of public opinion and social policy carry the political debate, there can be no challenge in the High Court based on human rights. This is because Australia does not have a Bill of Rights, unlike countries such as Canada where legal reforms were aimed at ensuring consistency with equality provisions in the Canadian Charter of Rights and Freedoms . There are thus two options: same-sex legislation at the federal level, or at the state level. Both eventualities are discussed below. In either case, a High Court determination is inevitable, because the central (and highly contentious) issue is the scope of the Marriage Power contained in the Constitution s 51(xxi): The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to…marriage . Ultimately, the question for the High Court will be: ‘ Does the Marriage Power give Federal Parliament power to legislate for same-sex marriage?’ How the Court answers this question depends on their interpretation of the constitutional term ‘marriage’, the scope of which has never been thoroughly canvassed. So far there have been judicial intimations, 11 but no direct High Court authority on whether s 51(xxi) is broad enough to encompass same-sex marriage. 12 The answer is crucial, for if the Court considers that Federal Parliament does have power, any 11 See especially Re Wakim; ex parte McNally (1999) 198 CLR 511, 553 where McHugh J said in obiter that ‘arguably “marriage” now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others’.
Image of page 5
Image of page 6
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern