Honours Thesis - Elodie Cheesman.pdf

66 from its very unfathomability in the late 19 th

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66 From its very unfathomability in the late 19 th Century it is safe conjecture that same-sex marriage would have been seen as scandalous by the Framers and raised even more harried concerns. On the other hand, the purpose of including the Marriage Power was to ‘make possible uniform national regulation of a vitally important legal relationship that underpins family life, child rearing, and therefore social welfare throughout the nation’. 67 During the Debates, Mr Wise (NSW) asserted that despite differences of religious or moral sentiment, it was imperative to ‘always [preserve] such supreme control on behalf of the commonwealth as is necessary to prevent scandals from people having one status in one state, and another status in another state’. 68 Cole v Whitfield is often seen as applying the ‘common law mischief rule’, but it is purely speculative to say that the Framers would have seen greater ‘mischief’ in sanctioning 63 (1988) 165 CLR 360. 64 Jeremy Kirk, ‘Constitutional Interpretation and a Theory of Evolutionary Originalism’ (1999) 27 Federal Law Review 323, 326-328. 65 Official Record of the Debates of the Australasian Federation Conference (Second Session), Sydney, 22 September 1897, 1078-1081. 66 Ibid, 1078 (Mr. Glynn, South Australia). 67 Goldsworthy, ‘Interpreting the Constitution in its Second Century’, above n 17, 700. 68 Official Record of the Debates of the Australasian Federation Conference (Second Session), Sydney, 22 September 1897, 1079.
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16 prospective same-sex marriage at the federal level, or conversely in denying Federal Parliament power to legislate for same-sex marriages (and hence impeding uniform regulation) had the question been adverted to. 3.4 LEGAL TERM OF ART Federal power to legislate for same-sex marriage may, however, be a possibility if the High Court were to take a ‘legal term of art’ approach. This orthodox technique involves recognising marriage as a legal institution that, before 1900, was the subject of change by the common law and statutes of the United Kingdom and Australian colonies. 69 Arguably, to apply the literalist strand to a ‘legal term of art’ is erroneous, for legal institutions were still developing (and being challenged) when the Constitution was drafted. To consider that their ‘essential meaning’ was frozen in 1900 would ‘betray that pre-federation history, the common law tradition and maybe even the intentions of the framers’. 70 There are strong arguments for recognising marriage as a ‘legal institution’. Its constituent elements, social purpose and attendant formalities have shifted a great deal over time, as this paper will now elucidate. Marriage was initially customary, involving a private exchange of mutual promises. It became a matter of religious significance when the church and ecclesiastical courts took ownership around the time of William the Conqueror.
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