Swedish legalisation of homosexual marriages and the call for greater recognition of homosexual relationships by the Chief Judge of the Family Court, Alistair Nicholson, sent me scurrying to the Constitution. How could it be done in Australia? The Constitution grants the Federal Parliament power to make laws with respect to “”marriage”. Is this enough to give Federal Parliament power to make a law recognising homosexual marraiges and to regulate divisions of property and custody and access rights to any adopted or artifically conceived chidlren? Or would it remain a state matter. It depends on what is meant by the word “”marriage” and the question is an excellent example of how the Constitution works.
The Constitution passed the British Parliament in 1900. But the meaning of the words are not frozen at that time. Let’s pretend that the Constitution gave the Federal Parliament power to make laws with respect to “”aircraft”. In 1900 that would have meant hot air balloons and kites. In 1915 the biplane would have been added. In 1945 the rocket and in the 1950s the jet. The connotation of the word “”aircraft” is things that fly in the air. In 1900 the denotation of the word meant balloons and kites and the denotation widened ever since. Then in 1998, say Queensland wanted to launch a spacecraft to the moon. Would it be an “”aircraft”? Does it fit the connotation “”aircraft” or is it a “”spacecraft”? It is the same with the words “”postal, telegraphic and other like services”. As time goes on more things come within their ambit.
It is also true of “”marriage”, as the High Court illustrated in 1962 when Victoria challenged Commonwealth’s new legitimisation law (under which children born out of wedlock whose parents later married were legitimised). Justice Windeyer said: “”It has been suggested that the Constitution speaks of marriage only in the form recognized by English law in 1900. The word, it is said, is to be read as defined by the famous phrase of Lord Penzance, “the voluntary union for life of one man and one woman, to the exclusion of all others’; and that therefore the legislative power does not extend to marriages that differ essentially from the monogamous marriage of Christianity. That seems to me an unwarranted limitation. Marriage can have a wider meaning for law.”” He then cited Justinian’s description of de-factos). In 1908 Justice Higgins said: “”Under the power to make laws with respect to marriage I should say that the Parliament could prescribe what unions are to be regarded as marriages . . .
The usage in 1900 gives us the central type; it does not give us the circumference of the power”. He was referring to non-Christian marriages and would have been mortified if told that his words might be used a century later to support a Federal law on homosexual marriages. But does this mean that the Federal Parliament can just say a relationship of a certain kind is a “”marriage” and then attach certain rights and duty to that relationship and expect the law to be declared valid? To take a bizarre example to illustrate the point, could the Parliament say that the relationship between a used-car dealer and a used-car buyer is a “”marriage” and then regulate the relationship to give the “”buyer spouse” certain rights? Could Parliament deem certain voluntary homosexual vows “”marriages”? Clearly not. The High Court, not Parliament, decides both the connotation and the denotation of the words in the Constitution. For example, the court held in 1972 that the connotation in 1900 of the word “”adult” meant “”over 21” it did not just mean “”mature person” which by 1972 would embrace anyone over 18. And so if Federal Parliament did enact a law recognising homosexual “”marriages” (and it was challenged _ inevitably _ by the states) the court would have to work out whether the connotation of the word “”marriage” in 1900 was (ital) any (end ital) intended lifelong living partnership whose denotation had come to include homosexual partnership or whether the connotation of the word in 1900 demanded it be a heterosexual partnership. There is plenty of law and logic for a judge to support either conclusion. That’s how our Constitution works.