Experts differ on Australian court decision to abolish gay marriage

February 22, 2014 10:02 am

Late last month, the High Court of Australia overturned legislation allowing same-sex marriages in the Australian Capital Territory (ACT) adopted by a regional parliament in October 2013. The Court ruled that a recent local law legalizing same-sex marriage was inconsistent with federal laws which specified in 2004 that marriage was between a man and a woman.

According to the court, any changes in such laws may only be amended by the federal parliament. Thus, marriages of 27 Australian same-sex couples who took advantage of the law were cancelled.

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Despite the American and European trend towards recognition of same-sex marriages, not all countries share similar views. First of all, in many Muslim states same-sex relations are punishable by death; however, many European countries to not seek to legalize gay marriage either. These countries include Poland and Italy, which do not recognize same-sex unions in any form.

Belarus, Bulgaria, Hungary, Latvia, Lithuania, Moldova, Serbia, and Ukraine have laws that define marriage as only being between a man and a woman. In a referendum in December 2013, Croatian citizens also voted to ban gay marriage, supporting the amendment to the constitution that defines marriage as being between a man and a woman.

A recent decision by India’s Supreme Court which restored criminal responsibility for same-sex relationships existent during the colonial era and was repealed in 2009 shows the unpopularity of same-sex family structuring. According to the newly adopted law, anyone who has “carnal intercourse against the order of nature with any man, woman or animal” may be punished with imprisonment up to ten years.

Critics call this discrimination against the LGBT community, but opponents of gay marriage believe that any changes to family law are unacceptable.

In particular, the Australian Christian Lobby has welcomed the High Court’s decision to reject the ACT’s same-sex marriage laws.

Managing Director Lyle Shelton said the ruling upholds the uniformity of marriage laws across the country.

“The ACT’s “marriage” laws were inconsistent with the federal laws and incapable of concurrent operation. This ruling shows it is not the jurisdiction of states to legislate in regards to marriage. It is important for marriage laws to continue to be administered federally – this is why the Marriage Act was passed in 1961 to have uniform marriage laws,” he explained.

“Marriage between a man and a woman is good for society and beneficial for governments to uphold in legislation. It’s about providing a future for the next generation where they can be raised by their biological parents, wherever possible,” he added.

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However, Shelton expressed concern for those same-sex couples who thought they were married under the ACT legislation.

“Understandably they will be disappointed at the decision handed down today and it is unfortunate they were put in this position.”

In turn, Mark Strasser, Trustees Professor of Law at Capital University Law School, called the court decision disappointing and expressed confidence that it is only a matter of time before Australia recognizes same-sex marriages, either through legislative or judicial action.

“Recognizing same-sex marriage benefits the marital parties themselves, any children that they might be raising, their family members more generally, and society as a whole. Society and the individual families benefit when different-sex individuals marry because, at least in part, marriage provides individuals stability and a greater ability to invest in themselves. The same effects occur when same-sex couples marry,” he stressed in an interview with news agency PenzaNews.

According to the expert, people have sufficient knowledge to confidently predict that same-sex parents, like different-sex parents, can raise children to be happy, healthy and thriving.

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“We have not seen greater negative outcomes for children raised by same-sex parents than we have for children raised by different-sex parents,” the professor noted.

He also stressed that same-sex couples and their families have many of the same joys and sorrows as do different-sex couples and their families.

“The commonalities greatly exceed the differences between families involving same-sex and families involving different-sex married adults. I suspect that at least some of the opposition to same-sex marriage arises from a lack of understanding and appreciation of those commonalities.”

Meanwhile, Lynn Wardle, a Bruce C. Hafen Professor of Law at J. Reuben Clark Law School and renowned expert in family law, noted that the decision of Australia’s High Court to overturn legislation allowing gay marriage in the Australian Capital Territory came as no surprise.

“Under Australian law, the federal government regulates marriage. The ACT legalization of same-sex marriage was improper, ultra vires and illegal. It seems like it was just a political stunt to get attention” the expert explained.

He also stressed that he does not support legalization of same-sex marriage.

“I support legalization of civil unions or domestic partnerships by well-crafted legislation that gives specific domestic relationship status and appropriate benefits to same-sex couples. However, marriage serves unique purposes related to the integration of male and female, so redefining marriage to include same-sex couples radically alters the institution of marriage and its potential to beneficially serve society and families.”

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The ‘accepted’ family, with a man and a woman as married parents

According to him, good social science research on gay and lesbian parenting is in its infancy; a little is known but much is not yet known.

“Much of the current “research” seems to be somewhat politically tainted. Two parents can benefit children, but the nature of the parental relationship may enhance or impair those benefits. Significant evidence supports the view that children are greatly advantaged by being raised by their own mother and father who are married to each other. Children raised in other family structures and forms (and there are many variations) may do well, also, but overall they do not flourish as well as children raised by their married parents.”

Teresa S. Collett, Professor of Law at University of St. Thomas and member of the American Law Institute, shared this view and suggested that the most favourable environment for the child is the nuclear family, where mother and father are biological parents.

“While individual children can and have flourished in a variety of familial settings, children who are raised in the low-conflict home of their biological mother and father have the greatest chance of developing into healthy happy adults who contribute to the society.”

“Men and women relate to children in different ways, and children will need to understand fully how to relate to both men and women as they mature into adulthood. Having the love and support of both a mother and a father is crucial to the development of this understanding,” she noted.

Teresa S. Collett also stressed that she does not support redefining marriage.

“I support the traditional definition of marriage as one man and one woman as the basis of civil society. The family is the most basic cell of civilization. Marriage is the foundation of the family because the sexual union of a man and woman is the only natural way that children are created. These children need the support of both the mother and father to grow into healthy contributing members of the community.”

“That support requires both parents to work together for their lifetime. Therefore, marriage must be understood to be monogamous, exclusive, and permanent. Same-sex unions, no matter how valuable to the couple involved in the union and their friends and family, do not and can not serve the same function in society,” the analyst concluded.

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