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The Legal Recognition of Same-Sex Marriage within the context of Gay Law Reform at a National and International Level: A Literature Search & Critical Review Project

This paper was written by Fiona Campbell for 2SRM, School of Law & Legal Legal Studies, La Trobe University, 10th April 1996. Copyright 1996 Fiona Campbell. denfion@ozemail.com.au

Cox, Barbara. 1994, 'Same sex marriage and choice of law: if we marry in Hawaii, are we still married when we return home', Wisconsin Law Review. Vol 1994, No 5, pp. 1033-1119

In the Hawaiian Supreme Court in the case of Baehr v Lewin (74. Haw,530. 1993) the court held that Hawaii's marriage statute was in contravention of the State's constitution which provides protection against sexual discrimination. Unless the State can show a compelling interest the statute would probably be deemed unconstitutional and invalid. The Baeher case is in recess. According to many commentators, there is a high probability that same-sex couples will have access to the opportunity to marry and have that marriage recognised by the State.

In light of this possibility, Cox sets out the explore fundamental choice of law questions. In other words, in the event a same-sex couple secure a legally recognised marriage in Hawaii will that marriage be recognised by their home State upon their return? Part 1 provides a comprehensive examination of the basis of the Baehr court's decision and adopts a critical analysis of the legal reasoning employed in the majority judgement. Instead of focusing on the question whether there exists a fundamental right to marry for all irrespective of sexual orientation, Cox argues that the court erred in its reasoning by concentrating on whether there is a fundamental right to same-sex marriage. The overturning of State laws prohibiting interracial marriage are discussed in the light of protections offered by the United States Constitution that may be able to be extended to gay people.

Part 2 centres upon the practical consequences of an affirmative Baehr decision and the way in which different State court jurisdictions will interpret the legality of a same-sex marriage instituted in Hawaii. Cox has undertaken a rigorous examination of statute law pertaining to marriage in each American state and then examines each law in relation to precedent and Federal legal principles for dealing with situations of conflict in laws. In Part 3, Cox concludes by proposing that 'marriage reform' advocates adopt a 'better rule of law' approach when negotiating with government. Courts when making decisions often look to social policy and political considerations and advocates need to convince courts that the recognition of same sex marriage is the 'better public policy'.

Dean, Craig. 1994, 'Gay marriage: a civil right', Journal of Homosexuality, Vol 27, No 3-4, pp.11-116

Background of the Author: Georgetown University. Founder/C.E.O. of the Equal Rights Marriage Fund. Dean and his partner sued the District of Columbia for the right to marry.

The author has written from the perspective of a civil right lawyer and as a gay man involved in a civil law suit related to marriage rights. These dual roles influence the persuasiveness of the articles central presupposition, namely by "refusing [gay people] the same legal recognition that is given to heterosexual couples" government degrades as well as devalues all gay and lesbian couples. Argument is put forward as to the benefits of marriage being conferred as a civil right; i.e. social recognition, legal protection and other spouse benefits. There is discussion about the interrelationship (and corresponding conflict) between Statute law (Human Rights Act 1977 - District of Columbia) and various case law. Almost in anticipation of the legalisation of same-sex marriages, Dean concludes his polemic with the strategy of de-emphasising the "radicalism" of gay marriage by suggesting that gay marriage is intrinsically pro-family and socially conservative.

Green, Richard. 1992, Sexual science and the law, Harvard University Press, Cambridge, Chapter 3: 'Homosexuality as a fundamental right". pp. 50-62

Background of the author: A psychiatric researcher with a law degree who is interested in exploring the psychiatric understanding of human sexuality and legal principles.

Curtailing of fundamental rights should be viewed as a serious step only to be justified for compelling State reasons. The question is posed - "What determines whether a right is fundamental?" Green outlines the historical shift/development in 'rights categorisation' through a brief excursus into Case law ( 1942-1978) tracing how in the United States Federal Court system, the parameters of rights deemed constitutive have been refined and extended. Of note, marriage was held to be a protected right as late as 1978 and was co-related with the "right to privacy". Two sub-sections are devoted to a review of psycho-biological research into sexual identity and the impact of sexual orientation.

The question is put "How fundamental is sexual identity?" A significant portion of text contains discourse about the hormonal/developmental formation of gender identity which is characterised by and underpinned with a theoretical understanding that links homosexual origination with immature and atypical sex role development or deprivation. The concluding section concentrates upon legal theory and case law. The focus being the question of legal protection for gay people under the American Constitution. The author's considered views are that the 'spirit' of the Constitution accords protection on the basis of sexual orientation. However, the judgements from the courts suggest otherwise. Two fundamental questions are left hanging - "What (values/morality) is the law founded upon?" and "What rationale is used for the protection of rights (especially for minorities)?"

Hohengarten, William. 1994, 'Same sex marriage and the right of privacy', The Yale Law Journal, Vol 103, No 6 April, pp. 145-1531.

This article provides a comprehensive overview of the function of the legal status of marriage, an analysis of the proposition that procreation is the putative purpose of marriage and addresses broader questions about the 'right to privacy'. Hohengarten reports that in American court judgements the prevailing view about the construction of "marriage' is that the prohibition against gay marriage lies not in prejudice, but in the fundamental nature of the marriage institution. The implication being that marriage inter alia is a heterosexual domain. The author disagrees and builds a case for an alternative position. He argues that the privacy provisions contained within the American Constitution necessitate that States recognise and sanction same-sex marriages and reappraise their construction of the definition of marriage.

For Hohengarten, marriage cannot be something that exists apart from the law or State. Its existence is predicated upon a legal relationship of individuals to each other and their combined relationship to third parties. Cutting through the abundant confusion and controversy around the 'gay marriage' debate, Hohengarten proffers the basis for dispute about the extension of marriage rights to underlying disagreements about the nature and construction of the institution of marriage and suggests that any extension of marriage rights necessitates a reappraisal of the marriage definition per se.

Kallen, Evelyn. 1996, 'Gay & lesbian rights issues: a comparative analysis of Sydney, Australia and Toronto, Canada', Human Rights Quarterly, Vol 18, No 1, pp. 206-223

Background of the Author: Kallen is Canadian and the author of 'Label Me Human: Minority Rights of Stigmatised Canadians,' 1989. A comparative analysis of civil rights protections in Toronto, Canada and Sydney, Australia.

The article provides an overview of international human rights instruments, none of which offers specific protection for gay men and lesbians. The narrative continues with an examination of domestic legal frameworks which may offer protection. With reference to the Australian situation, the author notes that our country has traditionally relied upon the common law for remedies and not a Bill of Rights with Constitutional protection. Canada on the other hand, affords protection to its citizens via the Canadian Charter of Rights & Freedoms located within its Constitution.

According to Kallen, differences in legislative frameworks influence the historical development (or absence) of State based anti-discrimination provisions. Sections C & D investigate the historical "criminalisation" and "decriminalisation" of homosexuality in Toronto and Sydney and the impact of these laws upon violence against gay people and police relationships. Readers are introduced to the fecundities of the respective gay communities, their composition, cultural expression and public visibility. Community uniqueness and variation in socio-legal conditions are reflected in the different perceptions of current issues that constitute concern among the gay community in each city. For example, Kallen contrasts the Sydney gay community's primary concern about parenting issues (custody, adoption etc) with the primary concern of the Toronto community, that is, the legal recognition of sex-sex relationships. Additionally, in the Australian context, gender plays a greater role in the determination of which issues are the most critical.

Lauw, Inge. (1994), 'Recognition of same sex marriage: time for a change?', E Law - Murdoch University Electronic Journal of Law, Vol 1, No 3, September,

http://cleo.murdoch.edu.au/asu/edtech/cleo_web/mdomo/elaw-j.arcs/lauw2.txt Background of the author: Murdoch University, Western Australia.

Lauw utilises the case of Baehr v Lewin (74.Haw.530,1993) being played out in the Supreme Court of Hawaii to explore broader policy issues that have arisen in that case which have implications internationally and in Australia in particular. According to Lauw, five categories of argument have been procured by 'conservative' courts and opponents of same-sex marriage to justify their stance: - the historical/traditional argument; the procreation argument; the protection of children; preservation of family & society and the pragmatic argument. Each argument is outlined and subsequently debunked in support of the legal recognition of same-sex marriage in the belief that the interests of society are better met by legalising gay marriages than by 'outlawing' them.

The rest of the article concentrates upon responses of the gay community to the notion of marriage, registered partnerships in Norway & Denmark and the possibility of reforms in Australia. Lauw concludes that reform of the Marriage Act 1961 (Cth.) is extremely remote and difficult. Similarly, Australian courts (both the High and Family courts) would continue to interpret 'marriage' in such a way to include only opposite-sex couples. Australia, however will acknowledge gay relationships in the 1996 Census and already recognises gay partnerships for the purposes of immigration.

Morris, Miranda. 1996, The pink triangle: the gay law reform debate in Tasmania, UNSW Press, Sydney,

Background of the author: A social historian from Tasmania who has worked in the policy development arena in the State Public Service.

Released shortly after the successful communication brought by Rodney Toonen against Australia to the United Nations Human Rights Committee (c.f. Toonen v Australia, No 488/1992), The Pink Triangle traces and analyses the debate on gay law reform in Tasmania during the period between 1988 - 1994. The book examines the way in which the passions of protagonists, on both sides of the debate, have been shaped and formed. Of interest to Morris, is the way in which gay people as a minority, have responded when confronted with hatred and violence. In addition, the gay law reform agenda provides an opportunity to scrutinise deeper systemic questions about Tasmania's construction of deviance and social control mechanisms.

Morris poses and attempts to answer fundamental questions: "Why is Tasmania different from elsewhere?" and "Why is homosexuality such an emotive issue in Tasmania?" Tasmania is the only State in Australia to still criminalise male homosexual acts. Groups advocating gay law reform suggest that existing statutes and government policy in general constitute a violation of international human rights instruments to which Australia is a signatory. Opponents of reform according to the author have adopted a 'siege mentality' and argue that Tasmanian's have a duty to preserve 'moral' values against "the decadence of the outside world". Socio-legal questions about the separation of power between Church and State, State & Federal government rights and "mainland' versus 'island' dichotomies are highlighted and discussed throughout the text. Finally, Morris reflects upon the impact of the gay law reform debate at a local and national level.

Samar, Vincent. 1994, 'A moral justification for gay & lesbian civil rights legislation', Journal of Homosexuality, Vol 27, No 2/3, pp.147-179

Background of Author: Professor of Philosophy at Loyola University of Chicago. He is a practicing attorney and active in the area of gay law reform.

Samar explores the necessity of a moral imperative for gay and lesbian civil rights. Unlike other marginalised and discriminated groups who have acknowledged immutable characteristics, homosexuals cannot rely on an extension of apriori anti discrimination legislation, as opponents of 'gay rights' shift the focus of the debate to perceptions about conduct and away from questions associated with immutable identity.

As a Philosopher Samar sets out to debunk key areas of argument that promote continuing discrimination against gay men and lesbians. He makes connections between these arguments and specific ethical stances drawn from utilitarianism, rights theory, communitarianism and natural law that surrounds much of the debate about law reform. The article examines what makes some kinds of discrimination justified and other types not and proceeds to a discussion about the role of law in enforcing and shaping norms of social behaviour. Samar concludes from his analysis that philosophical justifications for discrimination are methodologically invalid and argues that civil rights legislation must offer protection for affectional behaviour irrespective of sexual orientation in a just society.

Sanders, Douglas. 1996. 'Getting lesbian and gay rights issues on the international human rights agenda', Human Rights Quarterly., Vol 18, No 1, 1996, pp.67-106

Background of Author: Since 1992 Sanders was a representative of the International Lesbian & Gay Association (I.L.G.A) in United Nations forums.

The author provides a comprehensive analysis of international human rights frameworks and instruments vis a vis their specific relationship to the civil rights protection of gay men and lesbians and the mutability of social attitudes. Coverage of the article extends to a discussion of "obstacles and prospects for change", the dynamics of attitude formation and change, developments in Europe as well as the United Nations (U.N.). Finally, the various roles of U.N. bodies and Non-Government Organisations (N.G.O's) are examined.

The reader is informed that presently gay people are totally unrepresented within U.N. forums and gay organisation with consultative status is non-existent. At the time of writing, there appeared to be no initiatives that addressed discrimination against gay people. According to Sanders, at an international level, three factors combine to marginalise gay men & lesbians in the human rights arena. Namely, [1] continuing stigma; [2] ineffective advocacy & poor organisation within the gay community; and [3] the persistence of some U.N. member States to block initiatives. Section G (1) of the article provides an overview of decisions by the U.N, Human Rights Committee and traces the development of determinations via specific "Communications", from Hertzberg v Finland (1982) that resulted in a negative outcome to the recent 1994 favourable decision in Toonen v Australia. (1992). The author in concluding believes that future prospects for getting gay rights on the international agenda are favourable with Canada and Australia being at the forefront of change.

State of Hawaii. (1995). Report of the Commission on Sexual Orientation and the Law. Office of the Legislative Reference Bureau.

http://www.Hawaii.gov/lrb/solcvr.html

Background of Authors: A seven member commission appointed by the State of Hawaii to address some of the issues that arose from Baehr v Lewin (74 Haw.530,1993). The Report was submitted to the 18th Legislature 1995.

The Baehr court held that discrimination occurred on the basis of gender and that this discrimination was a 'suspect category' for the purpose of equal protection analysis. A strict scrutiny test is to be applied to marriage laws and therefore the State is required to show a 'compelling state interest' to justify the statute. Within this context, the Report examines the major legal and economic benefits extended to married opposite-sex couples but not extended to same-sex couples and proceeds to examine public policy reasons to extend or not to extend those benefits to same-sex couples. Substantial economic benefits were identified under fourteen areas of law. A series of different options are outlined as well as report findings and recommendations.

The Commission recommends that chapter 572, Hawaii Revised Statutes be amended to allow two people to marry regardless of gender. A minority report in disagreement with this recommendation is included.

Twomey, Anne. 1994, 'Strange bedfellows. The United Nations Human Rights Committee and the Tasmanian Parliament', Current Issues Brief, No.6. 1994-95, Parliamentary Research Service, Department of the Parliamentary Library, Canberra,

Background of author: Commonwealth public servant and member of the Law & Public Administration Group, Parliamentary Research Service.

The document is a briefing to members of the Australian Parliament about the implications of the United Nations Human Right Committee (referred hereafter as HRC) 'view' in (Toonen v. Australia, No 488/1992) that Australia had contravened its obligations under the International Covenant on Civil and Political Rights (referred hereafter as ICCPR) due to the existence of the Tasmanian Criminal Code which makes 'sodomy' a criminal offence. Twomey whilst concerned with outlining the range of options available as a response to the HRC's 'views', is keen to reinforce to parliamentarians that the crux of the 'problem' can be located in the absence of available domestic remedies when breaches to the ICCPR occur and to the non-existence of an Australian Bill of Rights.

The report examines the relationship between international and domestic law especially with respect to Australia's treaty obligations. Critical questions about the nature of legal reasoning employed by the HRC and the wording of treaty documents vis a vis interpretation of obligations are raised. Three options are proposed in reply to the HRC's 'view' that Sections 122 & 123 of the Tasmanian Criminal Code 1924 be repealed; (a) Tasmania legislates to repeal the Code; (b) the Commonwealth uses its external powers, under Section 50 of the Australian Constitution to override Tasmanian legislation; or (3) take no action at all.

The author concludes by reiterating the brief's central premise, namely that Australia would not have found itself in the position of having its international human rights reputation challenged, if appropriate domestic legislation had been enacted in response to ratification of international treaties. Until Australia formulates a system of domestic remedies Twomey argues that our country will experience a 'continual procession' of individuals seeking justice via the United Nations HRC.

Walker, Kristen. "The Participation of the Law in the Construction of (Homo)sexuality", Law In Context, Vol 12, No 1, 1994, pp.52 -76.

Background of the author: Faculty of Law, University of Melbourne.

The article employs a social-constructionist framework to explore the role of the law in the construction of sexuality, with a particular focus on 'homosexuality". The author begins from the premise that all sexuality is socially constructed, that is, what is considered 'sexual' and 'sexual identification' is a product of historical and social influences. As Walker puts it "there is nothing that is inherently 'sexual' in human life. An activity is only sexual because society or groups within society gives it that meaning..." (p.54).

Walker draws upon Foucault's analysis of the plurality of power and his understanding of 'law' (which she explains) to support the proposition that legal structures are active agents in the propagation of prejudice and stigmatisation. The concept of 'consent' when employed in relation to sexuality is cited as an example of the way in which legal reasoning is reckoned as a tool to validate unequal treatment of sexual practices depending upon whether the protagonists are engaged in same or opposite sexual behaviour. According to Walker, the locus of the legal regulation of heterosexuality is consent whereby non-consensual acts such as rape or incest are criminalised. In contrast, the question of consent is usually irrelevant when considering issues related to the regulation of same-sex activities. An analysis of the U.S. Supreme Court case Bowers v Hardwick (478 US 186,1986) which held that homosexuals did not have a fundamental right to engage in 'sodomy' is provided to support the author's stance. The consequences of Bowers v Hardwick, Walker argues is a return to the 'closet' (e.g. a life of concealment) and a reinforcement of the incorrect notion that 'activity is identity'. In concluding, a brief reference is made to the similarities to abovementioned case and the Toonen communication (Toonen v Australia , No 488/1992) to the United Nations Human Rights Committee vis a vis Tasmania's anti sodomy laws.

Wilets, James. 1995, 'Using international law to vindicate the civil rights of gay & lesbians in United States courts', Columbia Human Rights Law Review, Vol 27, No 1, Fall pp. 33-56

Background of the author: Visiting Assistant Professor, University of Miami School of Law. MA International Relations Yale University 1994.

Wilets examines international law as a mechanism for bypassing the apparent deadlock in securing human rights protections for gay men and lesbians in federal United States law. Unlike Australia, the United States [U.S.] is not a party to the Optional Protocol to the ICCPR and therefore American citizens do not have redress to the U.N. Human Rights Committee [HRC] as did Nicholas Toonen (c.f. Toonen v Australia , No 488/1992) when a breach of the ICCPR occurs. According to Wilets, the U.S. unlike other Western nations continues to criminalise homosexuality in a significant portion of the country.

The article explores the ways in which the Toonen decision can be utilised in U.S. domestic litigation. An outline of the Toonen case is given and the author notes that the HRC finding that the right to privacy had been violated by Tasmania's anti-sodomy laws was in direct conflict with the legal reasoning and judgement of the U.S. Supreme Court in Bowers v Hardwick [478 U.S.186 (1986)]. Whilst the ICCPR does not create a separate cause of action for citizens alleging a breach of the covenant, Wilets points out that the U.S. as a signatory to international treaties is obligated where possible to make judicial decisions consistent with those international obligations.

The Toonen decision as an international source of law, can act as a persuasive authority in U.S. courts. In fact, when other issues of privacy (not related to sexual orientation) have been presented, the courts have invoked a range of sources of international law to support a judgement. Furthermore, Wilets notes that various international courts when making decisions take into consideration rulings of other courts. Attention is given to the role of customary law and whether the Universal Declaration of Human Rights is included within its purview. In concluding Wilets argues that in the event a U.S. court rules against human rights protections for gay men and lesbians, the court may well be violating American international obligations. International law may be able to be utilised as a tool to vindicate rights in the courts.

Critical Summary

The socio-legal theme selected for the Literature Search and Critical Review Project is an exploration of the recognition of same-sex marriage at law within the context of ensuring that the rights of gay men and lesbians are enshrined and protected at the international and domestic level. A theme such as this, presents inherent limitations even in undertaking such a task. Namely, the notion of "gay marriage' as an advocacy right is at the 'cutting edge' of community-based activism within the gay community and law reform circles. This begs the question whether at this point in time, gay men and lesbians in Australia have appropriated the 'gay marriage' issue as a focus for activist attention like their overseas counterparts? Consensus about the validity and viability of pursuing legal change in this area has not been reached. Certainly, moves are afoot within the gay community to ensure legal recognition and equitable treatment of same-sex de facto relationships at law on a State level.

Other problematical issues regarding 'gay marriage' are given increased weight in the literature search process itself. There is a paucity of literature relating to 'gay marriage' and same-sex de facto relationships. A focus on 'academic literature' further restricted the amount of material sourced. Discussion papers written by gay and lesbian organisations were plentiful (relatively speaking) given these documents are written from the perspective of those individuals most affected by the issue. On the other hand, literature that sought to condemn and hinder any movement towards reform originated from sources connected to the religious 'right' and were written from a non-academic perspective.

The first observation then, to be made about the socio-legal theme of gay marriage is that there has been minimal socio-legal treatment within the context of academic scholarship. Additionally, the literature is mainly from the United States and concerns reforms to American law either at a State or Federal level. In order to redress this imbalance, I was able to source a smaller amount of literature from Canada and Australia.

In analysing the trends of the literature reviewed, a number of themes emerged which may contribute to a greater understanding and overview of the legal implications of securing civil rights for gay men and lesbians, in particular the right to marriage:

The rest of the review will discuss the abovementioned themes with reference to the approach taken by the authors and will conclude with suggestions for follow-up in the Research project.

At some point in the gay law reform debate writers (Green: 1992, Cox: 1994, State of Hawaii: 1995) are challenged to address the issue of whether some rights are 'fundamental' and others are not and then argue that gay and lesbian sexuality come within the purview of fundamental rights. Green in particular, highlights the necessity for identifying fundamental rights, which once denoted, can only be derogated by the State for compelling reasons. According to the authors of the State of Hawaii report, the onus falls upon the State to show a compelling state interest in order to justify discrimination against groups in the community. The right to marriage and to privacy are held to be fundamental by the U.S. Constitution and on this basis Cox proceeds to critique the reasoning employed by the Supreme Court of Hawaii in Baehr v Lewin (74 Haw.530,1993) arguing that the court did not focus on the applicability and extension of the fundamental right to marry, rather it examined the 'gay marriage' issue from the perspective of 'special rights', i.e. the right to same-sex marriage. Both Cox and Green place importance on the existence of fundamental rights guarantees with the American Constitution to support their arguments. Australia does not affords its citizens broad based human rights protections under its Constitution.

Other writers are more critical of the role of law in promoting or preventing access to fundamental rights and justice (Morris: 1996, Samar: 1994, State of Hawaii: 1995, Walker: 1994). The decriminalisation of homosexuality and the extension of marriage rights to same-sex couples calls the supposed neutrality and function of law into question. It is unfortunate that in 1996 that it is necessary to revisit the findings of the British Wolfenden Report 1957 in order to clarify such issues as the relationship between the law and the State; or the State and the Church. The commentaries in the literature suggest that the discussion of these roles and relationships is far from settled. Some protagonists (who are usually anti-gay) arguing for a closer proximity of relationship between state/law/church. The Wolfenden Report by todays standards appears quite restrained and conservative in character, however this report concludes that it is the role of law to enable individual freedom of choice and action and it is necessary for a separation between public and private spheres of life.

Several writers (Morris: 1996, Samar: 1994, State of Hawaii: 1995, Wilets: 1995, Walker: 1994), address the nature of the relationship between the legislature and judiciary in matters of public policy. The State of Hawaii Report tackles this relationship 'head on' by examining whether there are public policy reasons to extend or not to extend marriage benefits to same-sex couples. In its formulations the authors of the Report return to the basis of human rights and the U.S. Constitutional protections of those rights. Morris in tracing the gay law reform debate in Tasmania highlights the issue of the separation of powers of church and State which appeared at times to be become somewhat blurred. Samar and Walker and far more critical of the nature of legal institutions arguing that they are active agents in propagating prejudice and enforcing/shaping dominant social norms. A general criticism of the discourse around marriage rights for gay people was bereft in not delving into the foundational questions about the nature of law implicit in the marriage rights debate and may have a bearing on its outcome.

Across the literature reviewed, the reader is left with some outstanding questions - how are 'fundamental' rights defined and does the formulation of these rights need to be based on the consensus of the majority in society? Or do the courts and legislature play a role in shaping and expanding these rights? The case of Loving v Virginia (388 US.1 1967) [which overturned a law prohibiting interracial marriage] is cited frequently to argue that the State has a responsibility to protect fundamental freedoms of all peoples even when public opinion is not favourable to granting rights and equality to 'minority' groups. As Green argues, what rationale is used in law to protect minority rights? Certainly if the articulation of civil rights for categories of people in the community were left up to majority consensus the status of equity and justice in the world for minorities especially indigenous peoples would leave a lot to be desired.

The debate about extending marriage rights to same-sex couples brings into focus the function and status of marriage not only in society but at law. Dean: 1994, Hohengarten: 1994, Lauw: 1994, and the State of Hawaii: 1995, identify the social, legal and economic benefits that flow from the legal recognition of marriage. In fact the State of Hawaii Report devotes a chapter the debate on marriage rights has centred around the proclivities of the United States legal system. Which from my limited understanding, there appears markedly different from the Australian code. In ascertaining applicability questions internationally and within the Australian environment, is appears a tenuous exercise to transpose the legal reasoning of U.S. courts and applicability of rules into a different context. At best U.S. courts judgements may have some persuasive authority and may be a mechanism that draw out and examine policy implications.

Secondly, an analysis of the literature involved wading through a minefield of legal rules and precedent as well grappling with the hierarchy of laws. Cox: 1994, Morris: 1996 and Twomey: 1994 point to the conflicts between state laws and federal laws, between intrastate laws and steps taken by the State and judiciary in the United States and Australia to resolve apparent inconsistencies. On a practical level Cox describes this dilemma aptly in her article's title: 'Same Sex Marriage and Choice of Law: If we Marry in Hawaii, are we Still Married when we return Home?'.

Green and Wilets address issues related to conflicting court judgements. According to Green, the U.S. Constitution in spirit offers protection to gay men and lesbians yet court judgements suggest otherwise. Wilets points out that there are conflicting interpretations about the right to privacy by comparing the U.S. Supreme Court decision in Bowers v Harwick (478 U.S.186, 1986) with the 'view' of the United Nations Human Rights Committee in Toonen v Australia (488/1992).

Consideration of gay law reform at a domestic level increasingly is required to take into account the globalisation of rights and the emergence of regional power blocs. Should the Baehr court in Hawaii rule in favour of same-sex marriage what implications will this decision have for the rest of the United States? Importantly, will this decision have any persuasive authority internationally and what of the issue of domestic recognition of this 'kind' of marriage outside of the United States?

Morris: 1996, Sanders: 1996, Twomey: 1994 and Wilets: 1995 discuss the problematic relationship between domestic laws and international treaty obligations. Within the Australian context, Twomey is especially critical, arguing that Australia has an inadequate human rights protection framework and an absence of domestic remedies when breaches to international treaties occur. Wilets, a specialist in international law, believes that international treaty law may be a tool for vindicating rights especially when there appears to be a deadlock at a domestic level. He points out that international decision like Toonen v Australia (No 488/1992) may have persuasive authority and it is not unusual for courts to take into consideration the decisions of courts on an international level.

This critical summary attempted to outline central issues in the gay law reform debate especially in relation to the legal recognition of same-sex marriage. A number of 'big questions' related to foundations of law were highlighted and these issues are probably too complex and unwieldy to be carried through into a 2SRM research project. However a number of issues requiring further examination emerged:

Addendum

Since this paper was written Murdoch University Western Australia, ELAW Journal has published a symposium on "sexual orientation and the law" which contains papers related to the theme of the Literature Review at http://www.murdoch.edu.au/elaw/issues/v3n3/

bulletthe question of what are 'fundamental' rights?
bulletthe role of law in society, especially in relation to the protection of 'minority' rights? Separation of church and state;
bulletthe function and status of marriage;
bulletimmutability as justification for civil rights protection;
bulletconflict of laws: state/federal or federal/international; and
bulletthe impact of globalisation and the role international law may play in securing rights at a domestic level;
bulletthe validity of the 'immutability concept' as a tool for gay law reform;
bulletan examination of the legal recognition of same-sex defacto relationships in Australian Federal and State law;
bulletidentification of barriers and possibilities for the legal recognition of same-sex marriage in Australia;
bulletthe adequacy of human rights protections for gay men and lesbians in Australia;
bulletthe use of international law and overseas judgements to vindicate the marriage rights of gay men and lesbians;

Copyright 2000 by Fiona A Campbell. All rights reserved. 

EMAIL: f.campbell@qut.edu.au       

URL: http://members.tripod.com/FionaCampbell