The purpose of this paper is not to argue the case for or against the recognition of same-sex marriages but, rather, to review recent legal developments in Australia and beyond. As such, it sets out to update relevant sections of Briefing Paper No 9/2006, Legal Recognition of Same-Sex Relationships by Karina Anthony and Talina Drabsch.

That paper observed that questions regarding the most appropriate avenue for the legal recognition of same-sex relationships focus on the four main systems commonly in use: (a) de facto recognition; (b) registration; (c) civil unions; and (d) marriage. While the debate has moved on since 2006, this basic typology of same-sex legal relationships remains relevant. The present publication starts with a brief comment on de facto recognition, registration and civil unions, before looking in more detail at the issue of same-sex marriage.

De facto recognition - By the Property (Relationships) Legislation Amendment Act 1999, NSW became the first Australian jurisdiction to include same-sex couples in the definition of de facto relationships.

Federally, Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 provided entitlements for same-sex couples in areas such as joint social security and veterans' entitlements, employment entitlements, superannuation, workers compensation, joint access to the Medicare safety net, hospital visitation, immigration, inheritance rights and the ability to file a joint tax return. [2]

Registration - In place since 2004 is the City of Sydney Relationships Declaration Program which applies to both same-sex and mixed-sex couples. Since 2010, a similar Statewide register has also operated under the Relationships Register Act 2010 (NSW). [3]

Civil unions - The term "civil union" seems to have been used first in legislation passed in Vermont in 2000, in response to the Vermont Supreme Court ruling in Baker v. Vermont, requiring that the State grant same-sex couples the same rights and privileges accorded to married couples under the law. Internationally, other examples of civil union legislation include Britain's Civil Partnership Act, which came into effect in December 2005, and New Zealand's Civil Union Act 2004. Further instances include Denmark (since 1989), France (since 1999), Germany (since 2001) and Brazil (since 2011). [4]

The ACT's Civil Partnerships Act 2008 defines a civil partnership as "a legally recognised relationship that, subject to this Act, may be entered into by any 2 adults, regardless of their sex". It was amended twice in 2009. The first amendment provided a mechanism for parties to a civil partnership to make a declaration before a civil partnership notary. The second amendment was in response to a threat from the Commonwealth Government to disallow this first amendment. It required couples entering a civil partnership by declaration before a civil notary to give that notary and the registrar-general prior notice of their intention to make a declaration, as well as for the declaration to be registered before it becomes effective. [4.1]

Same-sex marriage - Of all the forms by which same-sex relationships may be legally recognised, marriage is by far the most contentious. Worldwide, same-sex marriage is currently legal in Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden. First to recognise same-sex marriages was the Netherlands in 2001, followed by Belgium two years later and then Spain in 2005. [5] On the other hand, in June 2011 a Bill to legalise same-sex marriage in France was defeated in the National Assembly [5.4].

One finding of this paper is that different constitutional settings have tended to impact on the way the issues at stake have been considered and acted upon. In some jurisdictions, the decisive role has been played by the legislature, whereas in others, including South Africa and Canada, a critical part has been played by the courts in their interpretation of constitutional rights.

Same-sex marriage in Canada - In Reference re Same-Sex Marriage the Canadian Supreme Court adopted the “living tree” approach to the Constitution and the Charter of Rights and Freedoms. It was said that the meaning of marriage is not fixed at the time the Canadian Constitution was enacted in 1867. Rather, marriage must be viewed as part of the evolution in Canadian society since that time, including the fact that Canada is a "pluralistic society". Expressly rejected for the purpose of civil marriage was the classic definition of marriage articulated in the 1866 case of Hyde v Hyde, where Lord Penzance said: "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others". [5.2]

Same-sex marriage in the United States – In the United States, where the picture is most complex, the courts, the legislatures and the people, acting through statutory and constitutional initiative referenda, have all contributed to a heated debate characterised by conflicting moral standpoints.

With the New York legislature voting on 24 June 2011 to legalise same-sex marriage, it is now permitted in six US States, Massachusetts (2003), Connecticut (2008), Iowa (2009), Vermont (2009), New Hampshire (2010) and New York (2011). Same-sex marriage is also permitted in the District of Columbia. The States of New York, New Mexico and Maryland recognize such marriages from other jurisdictions. As of January 2010, 29 States had constitutional provisions restricting marriage to one man and one woman, while 12 others had laws restricting marriage to one man and one woman. Eighteen States have laws adversely affecting the legal recognition of same-sex unions or domestic partnerships.

Same-sex marriage and European law: The domestic laws of the European states in respect to marriage came under scrutiny in Schalk and Kopf v Austria 30141/04 ECHR 2010, a case that specifically challenged a provision of the Austrian Civil Code which confined marriage to a union of two persons of opposite sex. The European Court of Human Rights ruled in June 2010 that there was no violation of human rights either under Article 12 (right to marry) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to private and family life). The Court noted that only six out of a total of 47 member states allow same-sex marriages, whereas (as at June 2010) another 13 states permit same-sex couples to register their relationships. [5.4]

Same-sex marriage in Australia - In Australia, too, the constitutional position is complex. In respect to the Territories, the powers of the Commonwealth Parliament and Executive are clear, as shown by the history of the ACT's Civil Unions Act 2006. This Act was disallowed by the Governor General, further to s 35 of the Australian Capital Territory (Self-Government) Act 1988 which states that "the Governor-General may, by legislative instrument, disallow an enactment within 6 months after it is made". [4.1]

In certain other respects the powers of the federal Parliament in relation to the "marriage" head of power in the Australian Constitution (s 51(xxi)) remain uncertain, as is the potential relationship between the powers of the federal and State Parliaments in this context. [7.2] From a survey of the leading academic commentators, a number of key propositions can be set out:

It is unclear whether the marriage power in the Australian Constitution provides the federal Parliament with the power to legislate in respect to same-sex marriage, either permitting or prohibiting such marriages.

If the High Court was to find that the marriage power did not provide the federal Parliament with the power to legislate in respect to same-sex marriage, then the field would be left open to State law.

On the other hand, if the issue identified in (a) remained undecided and the federal Marriage Act 1961 remained in its current form, the constitutional validity of a State law providing for same-sex marriage would be in doubt:

The basis for a challenge to such a law would be that the law is inconsistent with the federal Marriage Act and is therefore invalid under section 109 of the Australian Constitution.

In dealing with this issue, the High Court would look at whether the Marriage Act was intended to cover the entire field of marriage, or whether it was only intended to cover marriage between persons of different sex. It may be that, because the federal Marriage Act expressly defines marriage in heterosexual terms, it limits the operation of the Act, and its intention to cover the field.

The High Court may also be asked to consider the issue identified in (a) because if the Federal Parliament does not have the power to legislate in relation to same-sex marriage, then a challenge based on inconsistency must fail.

It is likely that a State law providing for same-sex (and other) civil unions would be constitutionally valid, even where these civil unions are the functional equivalent of marriage. Commentators argue that such laws would not be inconsistent with the Marriage Act 1961. [8]