It seemed useful at the same time also to take account of older developments in New Zealand on the same subject. The comparative survey provides a fascinating interplay of constitutional and statutory interpretation, federalism, the role of the judiciary and also the constitutional aspects of private international law.
In addition it calls attention to the perennial issue of how far the courts can act contrary to public opinion. The origin of the problem canvassed in this article can be summarised in the following way. It began by calls for the recognition of same-sex marriage in the United States that were made primarily through the courts rather than by seeking a change in the law by legislation.
These calls led to State judicial decisions which decided that the explicit failure of the common law and statutory definitions of marriage to include such marriages violated the Equal Protection clauses of certain State Constitutions.
These developments stirred up much anger on the opposing sides of the debate in the United States which, in turn, led to calls for constitutional amendments to prevent the recognition of such marriages. The developments in the United States can be contrasted with a more muted response to decisions in Canada which ultimately led to the recognition and greater public acceptance of same-sex marriages in that country.
This is so even though the capacity to bear children or the fulfilment of that capacity has not been made a condition of the creation or continuance of a valid marriage.
The latter aspect is underlined by the reference in the Australian definition quoted above to the purpose of marriage as being: Nevertheless, the traditional meaning has to be counterbalanced with an acknowledgment of the capacity of the relationship to be affected by significant legal and social change which shows that the meaning is not immutable. A variation of this kind of restriction was the law in ancient Greece which prohibited Athenians from marrying foreigners.
It was not until modern times that marriage became a matter of free choice. United States and Canada A. Introductory Remarks It is convenient to begin by quoting the prescient observations of Professor Cass Sunstein in the course of accepting the arguments in favour of recognising that the exclusion of same-sex marriage violates the Equal Protection Clause of the United States Constitution. An immediate judicial vindication of the principle could well jeopardise important interests.
It could galvanise opposition. It could weaken the antidiscrimination movement itself. It could provoke more hostility and even violence against gays and lesbians. It could jeopardise the authority of the judiciary. At a minimum, courts should generally use their discretion over their dockets in order to limit the nature and the timing of relevant intrusions into the political process.
Courts should also be reluctant to vindicate even good principles when the vindication would clearly compromise other important principles, including ultimately the principles themselves.
I believe that at the national level and in the short term, the [United States] Supreme Court should be extremely reluctant to require states to recognise same-sex marriages. It is far better for these developments to occur at the state level, usually through legislatures but sometimes through courts …  These remarks will of course call for amplification. Initial Judicial Recognition The modern judicial recognition of same-sex marriages in the United States begins with their recognition in a number of cases decided by State courts on State constitutional grounds.
It seems difficult for those in countries which have yet to adopt a judicially protected Bill of Rights to understand the depth of that public anger in a country which cherishes the judicial protection of rights. As the late Justice William Brennan in the United States observed in in response to the asserted need to leave substantive value choices to the ordinary democratic processes, the very purpose of a Bill of Rights is to declare certain values beyond the reach of temporary political majorities.
The derogation from the right of the majority to decide is thought to be justified because the majority cannot be expected to rectify the claims of the minority that arise as a response to the outcomes of the majoritarian processes. Although it is true that the failure to recognise same-sex marriages does prohibit both men and women from doing the same thing, this argument ignores the discriminatory effect or impact of such a prohibition on the sexual orientation of homosexual persons.
The argument was rejected essentially because it perpetuates a view that same-sex couples are less capable or worthy of recognition or value as human beings, to use the language used by the Ontario Court of Appeal. If discrimination includes the different treatment of like persons or things without a rational reason, was there a rational reason based on legitimate interests of society to justify the differential treatment of both kinds of marriage?
Leaving that consideration aside, it is necessary to describe briefly the most important social and public interests that were advanced by the State to justify the non-recognition of same-sex marriage.
In the first place it was argued that such laws provided a favourable setting for procreation. The obvious reply to that argument was that partners to a valid marriage were not required to show a capacity to procreate before or after the marriage is solemnized. This consideration no doubt presupposes that persons of the same sex have been accorded the same or similar rights as those granted to persons of opposite sex under those laws. The State had failed to establish that the failure to recognise will increase the number of couples who will choose to enter into opposite-sex relationships in order to raise children.
Such laws could in fact make the setting worse if same-sex relationships are not recognised, given that the children raised by persons of the same sex would be punished because of the stigma attached to the relationships entered into by their parents. In this case the failure to provide for same-sex marriage could have invalidated the whole of the legislation dealing with marriage when the clear intent of any guarantee of equality in this context would almost certainly have been to preserve the legal facility of marriage and extend its availability to the form of marriage that was not recognised in the legislation.
This called for a degree of judicial creativity, which has been encountered before in relation to the effect of discrimination in other contexts.
That remedy was best thought to achieve the equality required by s 15 1 of the Canadian Charter of Rights and Freedoms at the same time as ensuring that the legal status of marriage was not left in a state of uncertainty. Consequences in Other American States Reference was made earlier to the considerable public confusion generated when city officials in some States began licensing same-sex marriages despite State legislation which defined marriage as the voluntary union of men and women.
The Supreme Court of California decided, in effect, that city officials could not take it upon themselves to assume the invalidity of a duly enacted statute in anticipation of a judicial declaration of invalidity of that legislation.
The decision was not, however, to be taken as indicating one way or the other what view the court would take about the validity of those statutes. Despite the dilemma such officials faced, it was thought that the preferable course in this instance was to apply the law as it stood and allow affected persons to challenge the application to themselves of the allegedly invalid law. Non-recognition of Same-sex Marriages — the Judicial Reaction in Other American States Perhaps because of the adverse public opinion generated by the decisions discussed above, courts in other States subsequently declined to accord recognition to same-sex marriages despite the attempts that were made to rely on similar constitutional grounds available under the constitutions of those States.
The former jurisdictions even include States such as New York and California which have been regarded as traditionally liberal in outlook in the past. The differences with the cases already discussed are striking.
First, there was a partial or full acceptance of the view that there was no discrimination because both sexes were treated in the same way. Secondly, the State legislatures were entitled to believe that the challenged laws were rationally related to the furtherance of the public interests that were unsuccessfully relied on to sustain such laws in Goodridge, namely, the procreation and raising of children.
There was also a failure to address why the relevance of the considerations relied on was not confined to the rights of same-sex persons to adopt and raise children, as distinct from their right to marry each other.
In effect, the considerations relied on showed why allowing persons of the opposite sex to marry did not further the interests concerning procreation of children. But they failed to explain how not allowing the marriage of same-sex persons who could not have children, at least in the same way furthered that interest or, for that matter, interfered with its furtherance since it was not shown that non—recognition would encourage persons of the same sex to change their ways.
Strong reliance was also placed on the application in these cases of the highly deferential rational basis of review. This was seen as fitting for a State with so diverse a population. Those difficulties were not, however, thought to be sufficient to prevent courts from recognising the need to provide a parallel system of rights and obligations for same-sex partners because of the same guarantee.
Concluding Observations Enough has been said above to understand why Professor Sunstein thought that there was a real chance that the Supreme Court of the United States may one day accept that laws that fail to recognise same-sex marriages breach the Equal Protection Clause of the United States Constitution. Apart from fully vindicating his predictions regarding the likely public reaction to the judicial recognition of same-sex marriages, the advice he gave appears to have been heeded since some gay lobby groups have decided not to challenge the constitutional validity of State constitutional amendments which have sought to prevent similar developments in many other States.
Those States illustrate one disadvantage of relying on State action to recognise same-sex marriages. I will deal later with another major disadvantage of that course of action. That disadvantage relates to the vulnerable and uncertain status of such marriages in States that do not recognise them and the ability of same-sex partners to obtain divorces in relation to such marriages in those States.
At this point it is only necessary to emphasise that under the United States federal system of government the power to make laws to with respect to marriage rests, for the most part, with the State legislatures and not Congress. Introductory Observations It is convenient at this stage to turn to the position in Australia.
As is well known, the absence of a constitutional Bill of Rights forms a major source of difference between the Australian and United States constitutions despite the recent developments which have recognised some implied constitutional protections. Notwithstanding some judicial suggestions to the contrary, an implied right to equality does not appear to be one of those protections. Accordingly, Australia presently lacks a national constitutional guarantee of equality.
Essentially it remains the case that the Australian Constitution is generally based on trust rather than mistrust. This is so in relation to same-sex marriages celebrated in Australia domestic marriages. The recognition of the same marriages celebrated overseas will depend on the common law principles of private international law as modified by any relevant legislation foreign marriages.
The critical issue becomes legislation passed by which Parliament: Orthodox principles insist on concentrating on the essential meaning which constitutional terms had as at the date when the Constitution was enacted in , although there is now at least one member of the High Court who does not subscribe to that orthodoxy; namely, Kirby J who prefers to rely on the meaning which constitutional terms have now.
But even the orthodox approach is tempered by two major considerations. The first is that even that approach concentrates on the essential rather than non-essential meaning of terms. Secondly, it has long been acknowledged that there is a need to interpret constitutional powers broadly, given the difficulty of amending the Constitution and the need to ensure that it adapts to new developments not foreseen by the framers.
What is different about the changes that may have occurred in relation to same-sex marriages is that those changes relate to cultural and social values in contrast to changes which involved scientific developments and inventions.
One of those concerns the exclusive nature of the legislative powers provided under the Canadian Constitution and the division of the powers in relation to the solemnisation of marriage and other aspects of marriage.
Associated with this consideration was the significance of the Provincial power to make laws on solemnisation of marriage in determining whether the residue of authority in relation to marriage should be vested in either the Dominion or the Provincial Parliaments. On the other hand, perhaps the longer the issue is postponed for decision in the future, the greater will be the chances of its eventual acceptance. For the sake of completeness it only remains to mention in this connection that the case of Russell v Russell  suggests that the marriage power extends to dealing with the rights and duties which arise out of a marriage.
If the focus is placed on those rights and duties, the fact that two persons were not themselves married, or even capable of being married, would not prevent the conferral of the rights and duties of marriage on those persons. Neither is there a general prohibition contained in the Commonwealth Constitution on the enactment of discriminatory legislation.
The legislation in question was designed to eliminate suggested doubt regarding whether under the relevant provisions of the Marriage Act Cth Part VA same-sex marriages celebrated in countries that recognise them — such as Canada and Denmark — were required to be recognised in Australia. The doubt was alleged to exist despite the well known case of Hyde v Hyde Because State Parliaments enjoy general residual powers of legislation, it would seem that State legislative power must be available to recognise domestic same-sex marriages, as has occurred with legislation to deal with rights and incidents of de facto relationships.
In the final analysis, it would seem highly odd that the Marriage Amendment Act would treat both kinds of same-sex unions in a different way. The foregoing discussion deals with the federal legislative power to prohibit the creation under State law of same-sex unions when those unions are described as marriages.
Whatever may be the position as regards such power, it is much more doubtful whether the Commonwealth Parliament could go further and ban the creation of civil unions to which were attached the same rights and duties as those which arise out of a marriage relationship under the argument adverted to above.
This was conceded by the Government when the Marriage Amendment legislation was debated in Parliament. Full Faith and Credit in the US and Australia The federal constitutions of both the United States and Australia have similar provisions which require full faith and credit to be accorded to judgments and public Acts of sister States and also provide federal legislative power to give effect to this guarantee.
Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.
And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Section of the Commonwealth Constitution states: Full faith and credit shall be given throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.
This was, however, seen as providing a remedy against States which sought to deprive residents of other States from asserting their rights and privileges in the judicial proceedings of the former States in times of antagonism and contention between States.
The recognition of the union in those States that failed to provide for same-sex unions could prove critically important to the partners of those unions once one or both of them reside in those States in relation to such matters as the dissolution of same-sex marriages or civil unions and also the custody and maintenance of children of those relationships. Leaving aside constitutional questions of full faith and credit, these kinds of issues would be governed by the application of principles of private international law, and evoke in Australia the kinds of issues that used to arise in relation to similar issues before the advent of uniform federal marriage and divorce legislation in the middle of the last century.
No attempt is made here to essay the application of the common law principles of private international law since the focus of attention is directed to the constitutional guarantee to accord full faith and credit. As surprising as it may seem, there are still murky questions about whether the United States guarantee would still allow a State to refuse to recognise an interstate marriage if it regarded such marriages as contrary to its own public policy.
That uncertainty persists despite the relatively long history of the United States Constitution. Although it has been suggested that such a qualification should have little room to operate in a federal country,  that view has not been reflected in a recent case decided by a federal District Court.