Constitutional Issues Regarding Same-Sex Marriage: A Comparative Survey — North America and Australasia GEOFFREY LINDELL*
Constitutional Issues Regarding
Same-Sex Marriage: A Comparative
Survey — North America and
Australasia
GEOFFREY LINDELL*
1.
Introduction
This article could well have been entitled, ‘To recognise or not to recognise samesex marriages in the United States, Canada, Australia and New Zealand’.1 The article was prompted by developments in the United States and, to a much lesser extent, Canada, and also Australia in view of federal legislation passed in 2004 that was designed to preclude the recognition of such marriages in this country. It seemed useful at the same time also to take account of older developments in New
Zealand on the same subject. The comparative survey provides a fascinating interplay of constitutional and statutory interpretation, federalism, the role of the judiciary and also the constitutional aspects of private international law. In addition it calls attention to the perennial issue of how far the courts can act contrary to public opinion.
The origin of the problem canvassed in this article can be summarised in the following way. It began by calls for the recognition of same-sex marriage in the
United States that were made primarily through the courts rather than by seeking a change in the law by legislation. These calls led to State judicial decisions which decided that the explicit failure of the common law and statutory definitions of marriage to include such marriages violated the Equal Protection clauses of certain
State Constitutions. This resulted in considerable public confusion when city officials in other States began licensing same-sex marriages despite State legislation which defined ‘marriage’ as the voluntary union of a man and a woman.
These developments stirred up much anger on the opposing sides of the debate in the United States which, in turn, led to calls for constitutional amendments to prevent the recognition of such marriages. The developments in the United States can be contrasted with a
Same-Sex Marriage: A Comparative
Survey — North America and
Australasia
GEOFFREY LINDELL*
1.
Introduction
This article could well have been entitled, ‘To recognise or not to recognise samesex marriages in the United States, Canada, Australia and New Zealand’.1 The article was prompted by developments in the United States and, to a much lesser extent, Canada, and also Australia in view of federal legislation passed in 2004 that was designed to preclude the recognition of such marriages in this country. It seemed useful at the same time also to take account of older developments in New
Zealand on the same subject. The comparative survey provides a fascinating interplay of constitutional and statutory interpretation, federalism, the role of the judiciary and also the constitutional aspects of private international law. In addition it calls attention to the perennial issue of how far the courts can act contrary to public opinion.
The origin of the problem canvassed in this article can be summarised in the following way. It began by calls for the recognition of same-sex marriage in the
United States that were made primarily through the courts rather than by seeking a change in the law by legislation. These calls led to State judicial decisions which decided that the explicit failure of the common law and statutory definitions of marriage to include such marriages violated the Equal Protection clauses of certain
State Constitutions. This resulted in considerable public confusion when city officials in other States began licensing same-sex marriages despite State legislation which defined ‘marriage’ as the voluntary union of a man and a woman.
These developments stirred up much anger on the opposing sides of the debate in the United States which, in turn, led to calls for constitutional amendments to prevent the recognition of such marriages. The developments in the United States can be contrasted with a