Honours Thesis - Elodie Cheesman.pdf

9 andrew koppelman dumb and doma why the defense of

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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 < - 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).
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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’.
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