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» A Practical Matter   2004-06-01 22:21 Stephen Dawson

One other point. I don't know if this figured in the government's thinking, but the statutory adoption of a male/female definition of marriage is a useful pre-emptive action against some court's unexpected redefinition of it to include male/male and male/female relationships.

It may well be open for the courts to make such a redefinition. All they have to do is find that since marriage is defined only in common law, and since the High Court has declared it is not bound by common law, it is open to them to interpret the word in accordance with what they consider to be current social norms. Clearly there are many gay and lesbian couples who live together in marriage-like states and, for the most part, these are acceptable modes of living in today's Australia, so it would be acceptable for a court to find this to be a current social norm.

But a court-generated redefinition of marriage is, in my view, a very bad way to go about things, just as a court-generated change in any significant law causes huge problems. Virtually always it demands a legislative response (eg. Mabo, or the Massachusetts legislature's hasty actions in response to its court's legalisation of gay marriage).

By making the traditional definition statutory, it becomes a clear target for future legislative actiion, and immune (hopefully) from the courts. When society swings enough to insist on same sex marriages, then this can be repealed after full public debate.


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