Homosexual ‘Marriage’ – Some Perspective and Implications of Recent Actions by the ACT Parliament

One of the more instructive tasks one could undertake in consideration of the issue of homosexual ‘marriage’ is to review the Minutes of the NSW Parliament’s Final Report,

No. 47: Same-sex marriage law in New South Wales, 26 July 2013, by the Legislative Council’s Social Issues Committee.[1]

The Minutes are Appendix 5 of the Final Report, pp 131-160. In his Dissenting Statement, The Hon Greg Donnelly MLC, ALP, noted:

As will be observed from reading the minutes of the deliberative meetings, held on 22nd and 23rd July 2013 when this Report and Finding was finalised, I attempted to incorporate a significant amount of material to provide a more balanced and accurate presentation of the actual legal and constitutional evidence provided to the Committee.[2]

The additional evidence would show that:

In taking into account more accurately this evidence, it is my view that the Committee would have found that in addition to the State of New South Wales having the Constitutional power to legislate on the subject of marriage (a concurrent power shared with the Commonwealth pursuant to Section 51 (xxi) of the Australian Constitution):

  • ·         The Commonwealth Parliament legislated in 1961 for the unification of marriage laws bringing together separate legislative arrangements into a single national framework. That law is the Marriage Act 1961;
  • ·         The Commonwealth Parliament in 2004 passed the Marriage Amendment Act 2004. That legislation amended the Marriage Act 1961 to insert a specific definition of marriage: “The union of a man and a woman to the exclusion of all others, voluntarily entered into for life”;
  • ·         State legislation can not operate to the extent of any inconsistency with Commonwealth legislation;
  • ·         Questions of inconsistency are adjudicated by the High Court of Australia; and
  • ·         With the Commonwealth Parliament having expressly legislated on the matter of marriage (not heterosexual marriage, but marriage), it is highly unlikely that if the State of New South Wales legislated on the subject of same-sex marriage, that it would survive scrutiny by the High Court of Australia.[3]

 

His observations are also poignant concerning the ACT’s attempt to seize the Constitutional prerogative granted to the Federal Parliament to legislate for marriage for Australia.

One of the many deliberately omitted items from the body of the same report issued concerned a listing of UN Member states that have not legislated for homosexual marriage.  On 22 July 2013, The Hon Greg Donnelly moved that a listing in the National Marriage Coalition’s Submission be included after references to states and countries that had legislated for homosexual ‘marriage’[4]

The majority saw fit not to include it. Mr Donnelly was supported by The Hon Natasha Maclaren-Jones (Liberal MLC) in seeking to have this added. (Thank you.)

For the benefit of the wider public, here follows the list of UN Member states that have not legislated for homosexual marriage, as at 30 July 2013, with updates and a correction from the list submitted in Submission No 1040. It gives some context of Australia’s place in the whole debate.

Highlighting other such omissions would be a valuable exercise.

Afghanistan

Albania

Algeria

Andorra

Angola

Antigua and Barbuda

Armenia

Australia

Austria

Azerbaijan

Bahamas

Bahrain

Bangladesh

Barbados

Belarus

Belize

Benin

Bhutan

Bolivia

Bosnia and Herzegovina

Botswana

Brazil

Brunei Darussalam

Bulgaria

Burkina Faso

Burundi

Cambodia

Cameroon

Cape Verde

Central African Republic

Chad

Chile

China

Colombia

Comoros

Congo (Republic of the)

Costa Rica

Côte d’Ivoire

Croatia

Cuba

Cyprus

Czech Republic

Democratic People’s Republic of Korea

Democratic Republic of the Congo

Djibouti

Dominica

Dominican Republic

Ecuador

Egypt

El Salvador

Equatorial Guinea

Eritrea

Estonia

Ethiopia

Fiji

Gabon

Gambia

Georgia

Germany

Ghana

Greece

Grenada

Guatemala

Guinea

Guinea-Bissau

Guyana

Haiti

Honduras

Hungary

India

Indonesia

Iran

Iraq

Ireland

Israel

Italy

Jamaica

Japan

Jordan

Kazakhstan

Kenya

Kiribati

Kuwait

Kyrgyzstan

Lao People’s Democratic Republic

Latvia

Lebanon

Lesotho

Liberia

Libya

Liechtenstein

Lithuania

Luxembourg

Madagascar

Malawi

Malaysia

Maldives

Mali

Malta

Marshall Islands

Mauritania

Mauritius

Mexico*

Micronesia (Federated States of)

Monaco

Mongolia

Montenegro

Morocco

Mozambique

Myanmar

Namibia

Nauru

Nepal

Nicaragua

Niger

Nigeria

Oman

Pakistan

Palau

Panama

Papua New Guinea

Paraguay

Peru

Philippines

Poland

Qatar

Republic of Korea

Republic of Moldova

Romania

Russian Federation

Rwanda

Saint Kitts and Nevis

Saint Lucia

Saint Vincent and the Grenadines

Samoa

San Marino

Sao Tome and Principe

Saudi Arabia

Senegal

Serbia

Seychelles

Sierra Leone

Singapore

Slovakia

Slovenia

Solomon Islands

Somalia

South Sudan

Sri Lanka

Sudan

Suriname

Swaziland

Switzerland

Syria

Tajikistan

Thailand

The former Yugoslav Republic of Macedonia

Timor Leste

Togo

Tonga

Trinidad and Tobago

Tunisia

Turkey

Turkmenistan

Tuvalu

Uganda

Ukraine

United Arab Emirates

United Kingdom (Scotland, Northern Ireland)

United of Republic of Tanzania

United States*

Uzbekistan

Vanuatu

Venezuela

Viet Nam

Yemen

Zambia

Zimbabwe

 

The two non member states of the UN, the Holy See and Palestine also have not legislated for homosexual marriage.[5]

 

Therefore 178 of 193 Member states do not have homosexual marriage on their statute books.  In other words, 92.2% of Member states support marriage.  This is hardly a landslide of opinion and legislative change in favour of this across the world.

 

Member states touted as likely to change are:

United Kingdom (Scotland)

 

*Mexico City has legislated for homosexual marriage and its Supreme Court ruled that other Mexican states must recognise these, though they have not legislated for it.[6]

* As at 23 November 2013 the States of the United States of America that have legislated for homosexual marriage are:

Washington

California

Minnesota

Iowa

Maine

New Hampshire

Vermont

New York

Massachusetts

Rhode Island

Connecticut

Delaware

Maryland

New Jersey

Illinois

Hawaii

Washington D.C. (District)

 

States that have pro-marriage amendments to their constitutions are:

Montana

Idaho

Utah

Arizona

Alaska

North Dakota

South Dakota

Nebraska

Kansas

Oklahoma

Texas

Missouri

Arkansas

Louisiana

Mississippi

Michigan

Ohio

Kentucky

Tennessee

Alabama

Georgia

Florida

Virginia

North Carolina

South Carolina

 

Gerard Calilhanna

Coordinator National Marriage Coalition

23 November 2013


[2] Ibid., 163.

[3] Ibid., 163-164.

[4] Pp 141-143.

[5] The UN has 193 current Member States.  Source of Lists: United Nations Member States, United Nations Press Release ORG/1469, Department of Public Information, News and Media Division, New York, 3 July 2006, http://www.un.org/News/Press/docs/2006/org1469.doc.htm (accessed 23 February 2013).  List including South Sudan: United Nations, Member States of the United Nations, Current as at 14 July 2011, http://www.un.org/en/members/index.shtml (accessed 23 February 2013).  United Nations, Permanent Observers, Non-member States, http://www.un.org/en/members/nonmembers.shtml, current as at 29 November 2012 (accessed 23 February 2013).

[6] Ibid.