The Social And Legal Issue Of Same Sex Marriage In Australia

Just like in the United States, Australia is also facing the social and constitutional issue of same sex marriage. According to the Commonwealth Constitution particularly Section 51(xxi) the Federal Parliament has power to make laws with respect to ‘Marriage’.  The constitutional issue being debated now with regards to this provision is whether the ‘marriage power’ could support a Commonwealth law that recognizes same-sex marriage. Leading academics suggest that should the Australian Parliament legislate to allow same-sex marriage, there will undoubtedly be a constitutional challenge to its validity in the High Court.

According to settled jurisprudence, the Commonwealth cannot define the constitutional meaning of marriage through legislation. In one of its ruling, the High Court stated that… “Parliament cannot extend the ambit of its own legislative powers by purporting to give to ‘Marriage’ an even wider meaning than that which the word bears in its constitutional context. Nor can the Parliament manufacture legislative power by the device of deeming something that is not a marriage to be one or by constructing a superficial connection between the operation of a law and a marriage which examination discloses to be but contrived and illusory.”

There are different opinions indicated in various rulings of High Court with some support the view that the constitutional meaning of ‘marriage’ is confined to the definition that it is, a monogamous, heterosexual union for life. On the contrary, there are also more liberal opinions that suggest that the label, ‘marriage’, could apply in an extended range of circumstances prescribed by Parliament. Read more...