Tuesday, 11 February 2014

On Cascading Legal Change

Precis: The spark of legal change can jump state borders and rapidly cascade into behavioural change.  Federal states institutionalise this feature - and experience in other federal jurisdictions essential to continuing Australian policy development.

[These notes are for a series of lectures on jurisprudence.]

The great debate

We are far away from the great debate - the frantic intellectual churn that characterises western thought.

Some say the tyranny of distance is to blame – we could not be further away from Boston, in the state of Massachusetts, which is often considered the epicenter of western intellectual thought.

The thought of actually participating in the great debate hardly seems possible.

Yet from time to time, an Australian voice is heard, a discordant voice, sometimes proposing novel and interesting ideas – sometimes going places other better informed fear to tread. 

However, the Australian voice is hardly ever part of the great debate, because the great debate is a dialogue.

Having announced its contribution, the Australian voice falls silent, oblivious of the resulting analysis and criticism. 


 In September 1996 democrat President Bill Clinton signed into law the federal Defense of Marriage Act (DOMA), which permits US states to ban same-sex marriages, permits states to refuse to recognize such marriages performed elsewhere (despite the full faith and credit laws) and bars federal recognition of same-sex marriages. 

A visitor from another country (or world) might be bemused by such a proposal, having regard to the wide variety of domestic relationships enjoyed by the citizens of the US (and other Western countries). 

But this issue has been a peculiar feature of Christian thought for many centuries. 

It was a persistent thorn in the side of Byzantine and European dynastic ambitions (the struggle involving Henry VIII eventually claimed his chief law officer, and led to the creation of the Church of England). 

In America, the Christian churches have been united in opposition to the wicked polygamy of the early Mormons and have been scandalized by the portrayal of different social structures by feminist and other writers. 

Christian thinkers have decried alike the early feminist suggestion that the natural family unit consisted of a woman and her children, the radical portrayal of sexual alternatives by science fiction writers in the 50's and the more thoughtful description of the ‘S Marriage’ by Heinlein (a marriage between 2 or more couples).

The institution of marriage seemed as certain as a rock – and legislators started to use it as the basis for describing benefits, rights and obligations.

The emergence of a lobby seeking recognition of marriages between gay couples in the 90’s caught many by surprise. 

Despite bitter opposition from Christian conservatives, the lobby found support from people in many different states and countries.

In Massachusetts the local Democrats (with strong support from the judiciary and the Boston press) went further – and today Massachusetts legally recognizes gay marriages.

The Massachusetts legislation is widely seen as the culmination of the civil rights campaign on this issue – indeed, since the passage of the legislation, other “gay lobby” issues in the state have lost some of their momentum, probably because of a feeling that, at least in that State, the reform program has run its course.

But despite this – the development of similar proposals in Australia (including those in the socially progressive ACT) has proceeded in disregard of the US developments.

Three models

 While Massachusetts may have reached the pinnacle - there are actually three models employed in world jurisdictions: domestic partnership legislation, civil unions legislation and gay marriage legislation.

Domestic partnership legislation

 The scheme of this legislation effectively removes the status significance of ‘marriage’ – and instead confers valuable social and economic rights on those in long term domestic relationships. 

Some forms of this legislation allow for registration or court confirmation of the pre-dispute existence of a domestic relation.

Initially this form of approach derived from benefits extended to the employees of a relatively few companies and cities in the US (today this extends to employees in 14 US states).

Denmark passed the first such legislation in 1989 – giving registered same-sex couples access to some but not all benefits of the law (eg, the law excluded benefits under a wide range of laws).  Finland created a marriage like registration system in 2002.

The Australian Capital Territory became the first place in Australia and the first English speaking country to "acknowledge same-gender couples legally" - the law provides for the distribution of property and finances in the event of a separation, inheritance in the event of death and specific judicial recognition of the relationship – the ACT also enacted laws relating to same-sex adoption.

The ACT Domestic Relationships Act 1994, building on Lord Denning's development of the Law of Trusts, was passed without rancor. 

The passage of this legislation caused a ripple in the Great Debate – although the ACT seems hardly aware it.

At about the same time, in 1993 the Hawaii Supreme Court gave an opinion in the case of Baehr, considering that it is sex discrimination to deny a marriage licence to same-sex couples.

Hawaii started down the same approach as the ACT in 1997, passing a reciprocal benefits bill in 1997. 

Deliberations from 1993 to 1997, leading to the passage of the Hawaiian Act, acted as a touch stone to the passage of the Clinton Act. 

New Jersey, Maine and California adopted the Hawaiian approach from 2003 to 2005. 

In 2003, Hawaii made a radical departure from its model - mandating registration before benefits flow. 

This variation was adopted in the most recent form of this legislative model– in California.  

Civil union legislation

Civil union legislation derives from the 1999 decision of the Vermont Supreme Court which required that State to pass legislation to resolve the inequality faced by gay couples.

In 2000, Vermont policymakers invented the civil union label when the court ruled gay couples are entitled to the “common benefits and protections that flow from marriage under Vermont law." 

The Vermont Civil Unions Act was passed in 2000 – but while it allowed same-sex couples to enjoy many of the same 'state' benefits of marriage – this did not extend to benefits under Federal law. 

In April 2003, Connecticut became the second US state to adopt the civil unions model – this time without the need for a court order.  

A number of American states have now followed suit.

Gay marriage legislation

The pivotal 2003 decision of the Massachusetts Supreme Judicial Court followed the Vermont precedent. 

Chief Justice Margaret Marshall, of the Massachusetts Supreme Judicial Court, said:
“Barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution… Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support. It brings stability to our society... For those who choose to marry, and for their children, marriage provides an abundance of legal, financial and social benefits. In return, it imposes weighty legal, financial, and social obligations." 

In its 4-3 decision the court gave the Massachusetts legislature 180 days to come up with a solution. 

While an unusual course to Australian eyes, such a power probably exists within our own courts and perhaps we should be ready for the day it happens here. 

In Massachusetts, the court simply stayed its order for 180 days, effectively compelling the legislature to act during the stay.

Unlike Vermont, Massachusetts chose to go beyond civil union legislation, and recognize gay marriages directly. 

The resulting legislation has now been in force in Massachusetts for almost 4 years - Massachusetts began marrying same-sex couples on 17 May 2004. 

The Massachusetts approach provides a marriage rather than simply a state-recognised union. 

Unlike marriage, civil unions and domestic partnerships have limited or no effect outside the state in which they occur (the position we find ourselves in the ACT with our domestic relationships legislation).  

Further, civil unions and domestic partnerships do not provide any federal marriage benefits (there are some 1,138 laws and policies that give benefits to marriages - including Social Security, family medical leave, federal taxation and immigration policy).

By this time, Massachusetts was not alone. 

Canada enacted Civil Marriage Act in 2005 – following vigorous public debate. 

The Canadian approach was supported by rulings by courts in eight provincial and one territory, as well as the Supreme Court, that opposite-sex requirements for civil marriage is discriminatory and in violation of the Canadian Charter of Rights and Freedoms

Similar proposals have been pursued independently in other jurisdictions: Netherlands, Belgium and Spain.


 Within the churn that is US politics, the states are now reconsidering all these options. 

There remains significant political difference on the issue. 

Some time ago, Stateline, an influential online resource for newsmen and newswomen who cover state government summed up the position this way:

“Massachusetts stands alone in blessing gay marriages — more than 9,000 to date. Its example has spurred no imitators, but lots of backlash.”

Many US states have enacted “Defense of Marriage laws” based on the Clinton Act, which define marriage as solely a heterosexual union.

Judicial activism continues to drive the gay agenda forward - on October 25 2006 the New Jersey Supreme Court ruled that the state constitution guarantees same-sex couples all the legal benefits of marriage. 

The state legislature had until 22 April 2007 to come up with a way to give same-sex couples equal access to the protections of marriage. 

However, even in the liberal New England states, including Massachusetts, the issue remains contentious (the democrats favor gay marriage, the republicans favor civil union). 

Australia – an incomplete debate

 ACT Developments

 I mentioned earlier that the Australian Capital Territory (ACT) had led the world in making domestic partnership legislation, passing the Domestic Relationships Act in 1994. 

The Act was a radical departure from other Australian state laws (states had largely looked at the much narrower questions arising from de-facto relationships). 

Instead, the ACT law followed the lead provided by Lord Denning’s consideration of equitable trusts, providing a solid framework for disputes that arose out of ordinary longer term domestic arrangements. 

The Act was a radical departure for another reason.  It grew out of and took form from discussions with aboriginal people – one of the first Australian processes to consciously adopt contemporary and traditional aboriginal law into mainstream legal thinking.

While ACT law provided a framework to resolve relationship problems that arose out of territory law, the law did not touch the operation of rights, benefits and obligations implied under Commonwealth law. 

An issues paper on Gay, Lesbian, Bisexual, Transgender and Intersex people in the ACT, released in December 2002 briefly considered the issue of the registration of relationships. 

The paper called the registration process a “civil union” (the term coined n Vermont two years earlier), and identified some of the problems with such an approach (correctly noting that a registered relationship would not be recognised for Commonwealth purposes such as taxation, superannuation or social security). 

However, the issues paper did not examine the Vermont case law and subsequent legislation - it proceeded without consideration of the emerging US debate around this issue. 

On this occasion, however, the Commonwealth took heed of the US developments and, having considered and dismissed the Clinton Act, legislated to prohibit gay marriage in Australia. 

Too late, the Chief Minister of the ACT, Jon Stanhope protested:

“There have been a number of overseas jurisdictions that have recently amended laws to allow same sex marriages.  Much of this change has been driven by the recognition of human rights principles of equality. 
Fixing the meaning of marriage legislatively, rather than allowing the term to assume its ordinary contemporary meaning is a deliberate pre-emptive strike by the Howard Government to prevent similar developments in Australia. “

In June 2005, the ACT released a second paper “The recognition of same sex relationships in the ACT”. 

The paper considered three options for recognition:
  • a registration scheme to be operated by the Registrar-General’s Office;
  • civil unions which would involve a ceremony as well as registration; and/or
  • defining marriage to include same sex relationships under ACT law. 

Again, while the ACT was aware of overseas developments (by this time, same sex marriages were recognised or under consideration in Canada, the Netherlands, Belgium and Spain), but the paper did not consider the models developed in Vermont, Massachusetts or Hawaii. 

Despite having been in at the inception of this part of the great debate, the ACT then proceeded to act - oblivious to the debate – oblivious to the empirical information generated by years of practical administration in other states and countries.

Wrap Up

The ACT is uniquely placed in the Australian debate – it suffers constitutional constraints above those in other state legislatures. 

However, policy in the ACT would benefit from closer consideration of the intellectual debate being pursued outside its borders. 

The key policy questions here seem to be:

1.         Why should we as a society continue to place significance on a largely idealised concept of marriage rather than reality of relationships?

2.         If at this time, we choose to place significance on marriage, why not gay marriage?


March 2008

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