Honours Thesis - Elodie Cheesman.pdf

It is circular reasoning not analysis to maintain

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‘it is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been’. 59 This arbitrariness in distinguishing core elements from temporal facts cuts both ways; the ability to veil non-originalist tendencies under the guise of this originalist approach is discussed below in Section 5.2.1. It is worth noting Kitto J’s assertion that reference to the history of earlier legislation to establish the scope of a legislative power is more likely to establish the minimum content of a power than its outside limits. 60 Similarly, when speaking of trade marks in the Union Label Case , Higgins J said: ‘The usage in 1900 gives us the central type; it does not give us the circumference of the power’. 61 On these principles, it is difficult to justify identifying heterosexuality as a core component simply because it was a feature of marriage in 1900. Finally, if, as discussed below in Section 3.4, marriage is a ‘legal term of art’ – a shifting institution as opposed to a readily ascertainable object – it is anathematic to apply the connotation/denotation distinction. 62 56 Zines, above n 42, 21; Dan Meagher, ‘Guided by Voices? – Constitutional Interpretation on the Gleeson Court’, above n 18, 266-270; Simon Evans, ‘The Meaning of Constitutional Terms: Essential Features, Family Resemblance and Theory-Based Approaches’ (2006) 29 University of NSW Law Journal 207. 57 Meagher, ‘Guided by Voices? – Constitutional Interpretation on the Gleeson Court’, above n 18, 266-269. 58 Family Law Act 1975 (Cth) s 48. 59 Goodridge v Department of Health 798 NE 2d 941 (Mass. 2003), 961 n 23. See also Halpern v Attorney-General (Canada) (2003) 225 DLR (4 th ) 529, 553. 60 Lansell v Lansell (1964) 110 CLR 353, 363. 61 Attorney-General (NSW) v Brewery Employees Union of NSW (1908) (‘ Union Label Case’) 6 CLR 469, 610. 62 Meagher, ‘Guided by Voices? – Constitutional Interpretation on the Gleeson Court’, above n 18, 272, 286.
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15 3.3 TEXTUALISM v INTENTIONALISM Taking a purposive approach to the Marriage Power does not pasteurize the definitional problem. Cole v Whitfield , in its use of the Convention Debates, signalled the High Court’s move from textualism to intentionalism. 63 Where the former looks only to the words of the Constitution to ascertain the Framers’ intent, the latter looks also to extrinsic materials such as preparatory debates and previous draft Bills. 64 However, with no evidence that the Framers turned their minds to the prospect that same-sex couples might ever seek to marry, one cannot determine what their intentions would have been in that regard. During the Convention Debates, questions of ‘morality and respectability’ were discussed. 65 For instance, the representatives of the states aside from NSW and Victoria were concerned to keep marriage and divorce laws within each colony, for fear of ‘the marital tie being dragged down to the level of NSW [and Victoria]’ where recently passed legislation had rendered divorce ‘exceedingly easy’ to obtain.
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