Wednesday, 6 May 2009

Politics in the pub: same sex marriage

Through the wonders of IT, here is the speech I prepared for last week's Politics in the Pub debate about Same Sex Marriage:

Politics in the pub: Same sex marriage


I have been asked to speak for 10 minutes about same sex marriage. To be able to say what the concept is, it’s necessary to look at the options available to heterosexual people:

  • Be single/ dating style relationship
  • Live in a de facto relationship
  • Be married

What are the options for gay and lesbian people:
  • Be single/dating style relationship
  • Live in a de facto relationship

The option of marriage, as recognised in Australian law, is not available to gay and lesbian couples. The Marriage Act requires couples to be one man and one woman., although one of these can be transgendered and identify as male or female for that purpose.

In Australia there has been a process of relationship registries set up so that gay and lesbian couples can have their relationship recognised at some level. Relationship registries have been established in Tasmania, the ACT and Victoria, and the City of Sydney, but there is not talk of one happening in Queensland.

If a couple have registered their relationship, then that registration is a matter to be taken into account under the Family Law Act as to whether or not there was a de facto relationship for the purposes of property settlement.

The Federal Parliament can legislate for marriage. Because the definition of marriage is between one man and one woman, to the exclusion of all others, it has been argued by some, including Professor George Williams, a prominent constitutional lawyer, that a State, such as Queensland, could legislate for same sex marriage.

Why can’t gay and lesbian couples get married?

It’s a political question, not a legal one, but I thought I would address some overseas trends.
In various jurisdictions civil unions have been adopted, presumably because they are seen as more palatable by politicians, and then junked, because they are seen as discriminatory. To use the phrase that was junked by the US Supreme Court in Brown v Board of Education “separate but equal” is not that- separate is unequal.

This basic premise has been recognised in:
  • Sweden- by its Parliament
  • Vermont- by its legislature, over the veto of the Republican Governor
  • California- by its Supreme Court in the California Marriage case, before Proposition 8 was passed
  • Connecticut- by its Supreme Court last year

Civil unions v marriage


Before I outline the American cases, it must be reflected that it is doubtful that these decisions would have been reached in Australia, because we do not have a bill of rights. It is not known how far rights implied under the Commonwealth Constitution extend. They extend to the right of free speech. Whether they extend to the right to marry is a moot point.

I have referred to the American cases not because they're American, but because they state, or at least purport to state universal values, and they contain powerful arguments, worthy of being listened to. Both Connecticut and California rejected civil unions as opposed to marriage. Iowa dealt most powerfully with all the usual suspects put forward as to why same sex marriage should not occur.

Connecticut


The Connecticut Supreme Court last year considered the question of civil unions versus marriage. Connecticut was the second US state to legalise civil unions. Under state law, there was little difference between a civil union and being married, except that one applied to same sex couples and the other applied to straight couples.
Several couples challenged the law. The Connecticut Supreme Court in November 2008 upheld the challenge, stating that:

in light of the pernicious [and invidious] discrimination faced by gay
men and lesbians, and because the institution of marriage carries with it a
status and significance that the newly created classification of civil unions
does not, the segregation of heterosexual and homosexual couples into separate
institutions constitutes a cognizable harm.”
The court went on to say that
the state scheme was discriminatory and that the state had failed to provide
sufficient justification as to why same sex couples were excluded from the
institution of marriage.


The defendants argued:


There was no discrimination- the couples had all the rights that married couples had; and
Marriage has been recognised from time immemorial as being between one man and one woman.


The court held that the legislature had permitted same sex couples all the rights, except one:

the right to marry, a right that has “long been recognised as one of the
vital personal rights essential to the orderly pursuit of happiness by free men
[and women] and fundamental to our very existence and survival” – citing Loving
v Virginia.


Since the case, the Connecticut Legislature has in the last week legislated for same sex marriage.

The California Marriage Case


California had and has a domestic partnership scheme under the Domestic Partnership Act. The challenge in the California Marriage Case was that same sex couples should have been allowed to marry.


Ultimately in May 2008 the California Supreme Court upheld the right of same sex couples to marry. The majority did this when, as in Connecticut, the domestic partnership had all the effects and benefits as marriage, except one- the ability to marry:


We conclude that, under this state’s Constitution, the constitutionally based
right to marry properly must be understood to encompass the core set of basic
substantive legal rights and attributes traditionally associated with marriage
that are so integral to an individual’s liberty and personal autonomy that they
may not be eliminated or abrogated by the Legislature or by the electorate
through the statutory initiative process. These core substantive rights
include, most fundamentally, the opportunity of an individual to establish –
with the person with whom the individual has chosen to share his or her life –
an officially recognised and protected family possessing mutual rights and
responsibilities and entitled to the same respect and dignity accorded a union
traditionally designated as marriage. As past cases establish, the
substantive right of two adults who share a loving relationship to join together
to establish an officially recognised family of their own – and, if the couple
chooses, to raise children within that family – constitutes a vitally important
attribute of the fundamental interest in liberty and personal autonomy that the
California constitution secures to all persons for the benefit of both the
individual and society.

Furthermore, in contrast to earlier times,
our state now recognizes that an individual’s capacity to establish a loving and
long-term committed relationship with another person and responsibly to care for
and raise children does not depend upon the individual’s sexual orientation,
and, more generally, that an individual’s sexual orientation – like a person’s
race or gender – does not constitute a legitimate basis upon which to deny or
withhold legal rights. We therefore conclude that in view of the substance
and significance of the fundamental constitutional right to form a family
relationship, the California Constitution properly must be interpreted to
guarantee this basic civil right to all Californians, whether gay or
heterosexual and to same-sex couples as well as to opposite-sex
couples….

“Marriage” as opposed to some other nomenclature.
The Attorney General, observing that fundamental constitutional rights generally
are defined by substance rather than by form, reasons that so long as the state
affords a couple all of the constitutionally protected substantive incidents of
marriage, the state does not violate the couple’s constitutional right to marry
simply by assigning their official relationship a name other than
marriage. Because the Attorney General maintains that California’s current
domestic partnership legislation affords same-sex couples all of the core
substantive rights that plausibly may be guaranteed to an individual or couple
as elements of the fundamental state constitutional right to marry, the Attorney
General concludes that the current California statutory scheme relating to
marriage and domestic partnership does not violate the fundamental
constitutional right to marry embodied in the California Constitution.


We need not decide in this case whether the name “marriage” is invariably a core
element of the state constitutional right to marry so that the state would
violate a couple’s constitutional right even if – perhaps in order to emphasize
and clarify that this civil institution is distinct from the religious institution of marriage – the state were to assign an name other than marriage as the official designation of the formal family relationship for all couples. Under the current statues, the state has not revised the name of the official family relationship for all couples, but rather has drawn a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership). One of the core elements of the right to establish an
officially recognised family that is embodied in the California constitutional
right to marry is a couple’s right to have their family relationship accorded
dignity and respect equal to that accorded other officially recognised families,
and assigning a different designation for the family relationship of same-sex
couples while reserving the historic designation of “marriage” exclusively for
opposite-sex couples poses at least a serious risk of denying the family
relationship of same-sex couples such equal dignity and respect. We
therefore conclude that although the provisions of the current domestic
partnership legislation afford same-sex couples most of the substantive elements
embodied in the constitutional right to marry, the current California statutes
nonetheless must be viewed as potentially impinging upon a same-sex couple’s
constitutional right to marry under the California Constitution.


A number of factors lead us to this conclusion. First, the exclusion of same-sex
couples from the designation of marriage clearly is not necessary in order to
afford full protection to all of the rights and benefits that currently are
enjoyed by married opposite-sex couples; permitting same-sex couples access to
the designation of marriage will not deprive opposite-sex couples of any rights
and will not alter the legal framework of the institution of marriage, because
same-sex couples who choose to marry will be subject to the same obligations and
duties that currently are imposed on married opposite-sex couples. Second,
retaining the traditional definition of marriage and affording same-sex couples
only a separate and differently named family relationship will, as a realistic
matter, impose appreciable harm on same-sex couples and their children, because
denying such couples access to the familiar and highly favoured designation of
marriage is likely to cast doubt on whether the official family relationship of
same-sex couples enjoys dignity equal to that of opposite-sex couples.
Third, because of the widespread disparagement that gay individuals historically
have faced, it is all the more probably that excluding same-sex couples from the
legal institution of marriage is likely to be viewed as reflecting an official
view that their committed relationships are of lesser stature than the
comparable relationships of opposite –sex couples. Finally, retaining the
designation of marriage exclusively for opposite- sex couples and providing only
a separate and distinct designation for same-sex couples may well have the
effect of perpetuating a more general premise – now emphatically rejected by
this state – that gay individuals and same-sex couples are in some respects
“second-class citizens” who may, under the law, be treated differently from and
less favourably than, heterosexual individuals or opposite-sex couples.


Under these circumstances, we cannot find that retention of the traditional
definition of marriage constitutes a compelling state interest.
Accordingly, we conclude that to the extent the current California statutory
provisions limit marriage to opposite-sex couples, these statutes are
unconstitutional.

Since the case, Proposition 8 passed by a majority to outlaw same sex marriages. Proposition 8 has been challenged in the California Supreme Court. It is likely to be upheld, except as it attempts to ban existing same sex marriages entered into before it was passed.

Iowa
The Iowa Supreme Court upheld the right of same sex couples to marry. This decision was intellectually the most powerful of the three, and I conclude with the judges' words, given the power of those words.

Several couples sought to be married. The local registry office, run by Polk County, rejected them, because they were same sex couples. The couples took the county to court, ultimately ending up in the Supreme Court.


The arguments of the county officials for rejecting same sex marriage were:

  • Promoting procreation
  • Promoting child rearing by a mother and a father within a marriage
  • Promoting stability in opposite sex relationship to raise and nurture children
  • Conservation of State resources- ie if same sex marriages are allowed, it would burden the state further
  • The governmental interest in promoting the concept and integrity of the traditional notion of marriage


The Iowa Supreme Court by a unanimous verdict rejected all these arguments.


Children rearing


The plaintiffs produced evidence to demonstrate sexual orientation and gender
have no effect on children raised by same-sex couples, and same-sex couples can
raise children as well as opposite-sex couples. They also submitted
evidence to show that most scientific research has repudiated the commonly
assumed notion that children need opposite-sex parents or biological parents to
grow into well-adjusted adults. Many leading organisations, including the
American Academy of Paediatrics, the American Psychiatric Association, the
American Psychological Association, the National Association of Social Workers,
and the Child Welfare League of America, weighed the available research and
supported the conclusion that gay and lesbian parents are as effective as
heterosexual parents in raising children.

For example, the official policy of the American Psychological Association
declares, “There is no scientific evidence that parenting effectiveness is
related to parental sexual orientation: Lesbian and gay parents are as
likely as heterosexual parents to provide supportive and healthy environments
for children. Almost every professional group that has studied the issue
indicates children are not harmed when raised by same-sex couples, but to the
contrary, benefit from them. In Iowa, agencies that license foster parents
have found same-sex couples to be good and acceptable parents. It is
estimated that more than 5800 same-sex couples live throughout Iowa, and over
one-third of these couples are raising children.

It is true the
marriage statute does not expressly prohibit gay and lesbian persons from
marrying; it does, however, require that if they marry, it must be to someone of
the opposite sex. Viewed in the complete context of marriage, including
intimacy, civil marriage with a person of the opposite sex is as unappealing to
a gay or lesbian person as civil marriage with a person of the same sex is to a
heterosexual. Thus, the right of a gay or lesbian person under the
marriage statute to enter into a civil marriage only with a person of the
opposite sex is no right at all. Under such a law, gay or lesbian
individuals cannot simultaneously fulfil their deeply felt need for a
committed personal relationship, as influenced by their sexual orientation, and
gain the civil status and attendant benefits granted by the statute.
Instead, a gay or lesbian person can only gain the same rights under the statute
as a heterosexual person by negating the very trait that defines gay and lesbian
people as a class – their sexual orientation.
In re Marriage Cases,
183 P.3d at 441. The benefit denied by the marriage statute – the status
of civil marriage for same-sex couples – is so “closely correlated with being
homosexual” as to make it apparent the law is targeted at gay and lesbian people
as a class.


By purposefully placing civil marriage outside the realistic reach of gay
and lesbian individuals, the ban on same-sex marriages differentiates implicitly
on the basis of sexual orientation.. See Kerrigan, 957 A.2d at 431…


1. History of discrimination against gay and lesbian people.
The first consideration is whether gay and lesbian people have suffered a
history of purposeful unequal treatment because of their sexual
orientation. The County does not, and could not in good faith,
dispute the historical reality that gay and lesbian people as a group have long
been the victim of purposeful and invidious discrimination because of their
sexual orientation. The long and painful history of discrimination against
gay and lesbian persons is epitomised by the criminalisation of homosexual
conduct in many parts of this country until very recently. See Lawrence,
539 U.S. at
578-79.

2. Sexual orientation and the ability to contribute to
society.
A second relevant consideration is whether the
characteristic at issue – sexual orientation – is related to the person’s
ability to contribute to society. Heightened scrutiny is applied when the
classification bears no relationship to a person’s ability to contribute to
society. The existence of this factor indicates the classification
is likely based on irrelevant stereotypes and prejudice. Kerrigan, 957 A.2d
at 453. …

In this case, the County acknowledges sexual
orientation is highly resistant to change. Additionally, “sexual
orientation forms a significant part of a person’s identity”. Kerrigan,
957 A.2d at 438 (quoting Able v. United States, 968 F.Supp. 850, 863 (E.D.N.Y.
1997), rev’d on other grounds, 155 F.3d 628 (2d Cir.1998). Sexual
orientation influences the formation of personal relationships between all
people – heterosexual, gay, or lesbian – to fulfil each person’s fundamental
needs for love and attachment. Accordingly, because sexual orientation is
central to personal identity and “may be altered [if at all] only at the expense
of significant damage to the individual’s sense of self,” classifications based
on sexual orientation “are no less entitled to consideration as a suspect or
quasi-suspect class than any other group that has been deemed to exhibit an
immutable characteristic”. Id. At 438-39 (quoting Jantz v. Muci, 759 F.
supp. 1543.
It is also important to observe that the political power of gays
and lesbians, while responsible for greater acceptance and decreased
discrimination, has done little to remove barriers to civil marriage.
Although a small number of state legislatures have approved civil unions for gay
and lesbian people without judicial intervention, no legislature [although since
this decision, Vermont has now so legislated]
has secured the right to civil
marriage for gay and lesbian people without court order.
The
Governmental interest in traditional notions of marriage
This precise
situation is presented by the County’s claim that the statute in this case
exists to preserve the traditional understanding of marriage. The
governmental objective identified by the County – to maintain the traditional
understanding of marriage – is simply another way of saying the governmental
objective is to limit civil marriage to opposite-sex couples. Opposite-sex
marriage, however, is the classification made under the statute, and this
classification must comply with our principles of equal protection. Thus,
the use of traditional marriage as both the governmental objective and the
classification of the statute transforms the equal protection analysis into the
question of whether restricting marriage to opposite-sex marriage.
This
approach is, of course, an empty analysis. It permits a classification to
be maintained “for its own sake”. Kerrigan, 957 A.2d at 478 (quoting
Romer, 517 U.S. at 635, 116 S.Ct. at 1629, 134 L.Ed. 2d at 478 (quoting romer,
517 U.S. at 635, 116 S.Ct. at 1629, 134 L.Ed. 2d at 868). Moreover, it can
allow discrimination to become acceptable as tradition and helps to explain how
discrimination can exist for such a long time. If a simple showing that
discrimination is traditional satisfies equal protection, previous successful
equal protection challenges of invidious racial and gender classifications would
have failed. Consequently, equal

We begin with the County’s
argument that the goal of the same-sex marriage ban is to ensure children will
be raised only in the optimal milieu. In pursuit of this objective, the
statutory exclusion of gay and lesbian people is both under-inclusive and
over-inclusive. The civil marriage statute is under-inclusive because it
does not exclude from marriage other groups of parents-such as child abusers,
sexual predators, parents neglecting to provide child support, and violent
felons – that are undeniably less than optimal parents. Such
under-inclusion tends to demonstrate that the sexual-orientation-based
classification is grounded in prejudice or “overbroad generalizations about the
different talents, capacities, or preferences” of gay and lesbian people, rather
than having a substantial relationship to some important objective. See
Virginia, 518 U.S. at 533, 116
The ban on same-sex marriage is substantially
over-inclusive because not all same-sex couples choose to raise children.
Yet, the marriage statute denies civil marriage to all gay and lesbian people in
order to discourage the limited number of same-sex couples who desire to raise
children. In doing over and under-inclusivness of the statute reveals it
is less about using marriage to achieve an optimal environment for children and
more about merely precluding gay and lesbian people from civil marriage.
If
the statute was truly about the best interest of children, some benefit to
children derived from the ban on same-sex civil marriages would be
observable. Yet, the germane analysis does not show how the best interests
of children of gay and lesbian parents, who are denied an environment supported
by the benefits of marriage under the statute, are served by the ban.
Likewise, the exclusion of gays and lesbians from marriage does not benefit the
interests of those children of heterosexual parents, who are able to enjoy the
environment supported by marriage with or without the inclusion of same-sex
couples.


The ban on same-sex civil marriage can only logically be justified
as a means to ensure the asserted optimal environment for raising children
if fewer children will be raised within same-sex relationships or more children
will be raised in dual-gender marriages. Yet, the same-sex marriage ban
will accomplish these outcomes only when people in same-sex relationships choose
not to raise children without the benefit of marriage or when children are
adopted by dual-gender couples who would have been adopted by same-sex couples
but for the same-sex civil marriage ban. We discern no substantial support
for this proposition. These outcomes, at best, are minimally advanced by
the classification. Consequently, a classification that limits civil
marriage to opposite-sex is simply not substantially related to the objective of
promoting the optimal environment to raise children. This conclusion
suggests stereotype and prejudice, or some other unarticulated reason, could be
present to explain the real objectives of the statute.

Promotion of
procreation. The County also proposes that government endorsement of
traditional civil marriage will result in more procreation. It points out
that procreation is important to the continuation of the human race, and
opposite-sex couples accomplish this objective because procreation occurs
naturally within this group. In contrast, the County points out, same-sex
couples can procreate only through assisted reproductive techniques, and some
same-sex couples may choose not to procreate. While heterosexual marriage
does lead to procreation, the argument by the County fails to address the real
issue in our required analysis of the objective: whether exclusive of gay
and lesbian individuals from the institution of civil marriage will result in
more procreation? If procreation is the true objective, then the proffered
classification must work to achieve that objective.

Conceptually, the promotion of procreation as an objective of marriage is compatible with the inclusion of gays and lesbians within the definition of marriage. Gay and
lesbian persons are capable of procreation. Thus, the sole conceivable
avenue by which exclusion of gay and lesbian people from civil marriage could
promote more procreation is if the unavailability of civil marriage for same-sex
partners caused homosexual individuals to “become” heterosexual in order to
procreate within the present traditional institution of civil marriage.
The briefs, the record, our research, and common sense do not suggest such an
outcome. Even if possibly true, the link between exclusion of gay and
lesbian people from marriage and increased procreation is far too tenuous to
withstand heightened scrutiny. ...


Promoting stability in opposite-sex relationships. A fourth suggested rational supporting the marriage statute is “promoting stability in opposite sex relationships”. While the institution of civil marriage likely encourages stability in opposite-sex relationships, we must evaluate whether excluding gay and lesbian people from civil marriage encourages stability in opposite-sex relationships. The County offers no reasons that it does, and we can find none. The stability of opposite-sex relationships is an important governmental interest, but the exclusion of same-sex couples from marriage is not substantially related to that objective.

Conservation of Resources. The conservation of state resources is another objective arguably furthered by excluding gay and lesbian persons from civil marriage. The argument is based on a simple premise: couples who are married enjoy numerous governmental benefits, so the state’s fiscal burden associated with civil marriage is reduced if less people are allowed to marry. In the common sense of the word, then, it is “rational” for the legislature to seek to conserve state resources by limiting the number of couples allowed to form civil marriages. By way of example, the County hypothesizes that, due to our laws granting tax benefits to married couples, the State of Iowa would reap less tax revenue if individual taxpaying gay and lesbian people were allowed to obtain a civil marriage. Certainly,
Iowa’s marriage statute causes numerous government benefits, including tax
benefits, to be withheld from plaintiffs. Thus, the ban on same-sex marriages may conserve some state resources. Excluding any group from civil marriage-African-Americans, illegitimates, aliens, even red-haired individuals – would conserve state resources in an equally “rational” way. Yet, such classifications so obviously offend our society’s collective sense of equality that courts have not hesitated to provide added protections against such inequalities.

Religious Opposition to Same-Sex Marriage.
Now that we have addressed and rejected each specific interest advanced by the County to justify the classification drawn under the statute, we consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage. The County’s silence reflects, we believe, its understanding this reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage.


While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling. Consequently, we address the religious undercurrent propelling the same-sex debate as a means to fully explain our rationale for rejecting the dual-gender requirement of the marriage statute.


It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. The belief that the “sanctity of marriage” would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better
identifies the source of the opposition. Whether expressly or impliedly,
much of society rejects same-sex marriage due to sincere, deeply ingrained –even
fundamental – religious belief.


As a result, civil marriage must be judged under our constitutional standard of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our
constitution immeasurably by trying to do more.


In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage – religious or otherwise – by giving respect to our constitutional
principles. These principles require that the state recognise both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will
now take on a new meaning that reflects a more complete understanding of equal
protection of the law.

2 comments:

  1. Does Commonwealth constitutional case law recognize "implied" substantive due process rights and equal protection? I am trying to imagine how the few express constitutional rights, such as Section 117, have support without an infrastructure of due process and equal protection. At any rate, I think that I understand, from your discussion, the limits of American case law with respect to Australia.

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  2. Michael:
    The founding fathers of Australia's constitution said less is more when they drafted the constitution. Being State politicians, their main focus was on the relationship between the Commonwealth and the States. Unfortunately, there were very few stated constitutional protections. The most explicit were that the Commonwealth (as opposed to any of the States) could not establish a religion, that compensation by the Commonwealth in compulsory acquisition had to be on just terms, and that trials for Commonwealth offences on indictment had to be before a jury. Clear limitations: an acquisition by a State on behalf of the Commonwealth did not have to be on just terms; a summary offence did not have to be on indictment, therefore did not have to be before a jury. Certainly the courts try and ensure that there are some implied rights, but what they are is unclear. For example, during World War 2, the High Court released Jehovah's Witnesses who had been jailed because htey refused to fight, because the court said that the Commonwealth's power did not extend so far. The Commonwealth, if it chose, could legislate for all human rights- by legislating UN and other treaties into domestic law, using the external affairs power. Hopefully this mess will be sorted by a Human Rights Act or by a Bill of Rights soon.

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