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News Article

Gay marriage bills may be unconstitutional: law professors
Friday, April 13, 2012

Legal experts including two law professors told a House of Representatives gay marriage bill inquiry yesterday that the legislation could be thrown out by the High Court.

Professors George Williams and Andrew Lynch agreed with Neville Rochow SC and barrister Christopher Brohier that there are constitutional uncertainties with both the Marriage Amendment Bill (sponsored by Labor MP Stephen Jones) and the Marriage Equality Bill (sponsored by Greens MP Adam Bandt and Independent Andrew Wilkie).

The Australian Constitution (s.51) gives the Commonwealth the power to legislate for marriage.  Rochow and Brohier argued that according to the traditional method of constitutional interpretation, the meaning of “marriage” in this section is the meaning marriage had in 1901 – the union of a man and a woman, exclusive of all others, voluntarily entered into for life.  This meaning could only be changed by a High Court ruling or a constitutional referendum.  

Rochow and Brohier said the matter should go to a referendum. The professors disagreed, saying referendums are too expensive – and that despite the uncertainties, the legislation should go ahead and be tested in the High Court, which could follow the traditional interpretation or choose a more expansive approach. 

Rochow and Brohier pointed out further difficulties: if marriage can be redefined to include same-sex unions – why not polygamy?  Committee member Dr Sharman Stone (Lib, Vic) said this is a big issue in her electorate, with many people from Middle East cultures pressing to have their polygamous marriages recognised. 

Dr David Phillips, national president of FamilyVoice Australia, also gave evidence to the House of Representatives committee hearing (held in the Macquarie Room of the NSW Parliament House, 12/4/12).

Dr Phillips told the committee that marriage has always been privileged because of its potential to produce children of the union, raised in a stable environment with their natural mother and father – something that same-sex unions can never do.  

“Redefining marriage to include any two people would change its primary purpose from procreation to recreation,” Dr Phillips said.  “This would not be in children’s or society’s best interests.”

Dr Phillips also pointed out that homosexual identity is fluid.  He did not say “homosexuality can be cured” (wrongly reported by an AAP journalist on 12/4/12).  Rather, he quoted evidence that some 80% of same-sex attracted teenagers were opposite-sex attracted a decade later.  

Studies of identical twins have shown that where one twin is homosexual, the other is usually heterosexual – even though they both have the same genes and the same hormonal influences in the womb.  “There is no single gene that determines homosexuality,” Dr Phillips said.  “Rather, the dominant influence is life experiences after birth.

“Spontaneous change can and does happen – both ways.  It is wrong and harmful to tell teens that their sexual identity is set in concrete when there is evidence that change can occur – without any treatment or ‘cure’,” Dr Phillips said.


  • Marriage and sexuality

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