In December 2006, the Civil Partnerships Bill 2006 (ACT) was introduced in the ACT Legislative Assembly that would extend to same-sex (and heterosexual) couples who have declared their commitment to each other by entering a 'civil partnership' the legal consequences that ACT laws attach to 'domestic partnerships' (what other Australian jurisdictions call 'de facto relationships'). The Bill was introduced in response to the Howard Government's disallowance, in June 2006, of the Civil Unions Act 2006 (ACT) ('Civil Unions Act'), passed by the ACT Legislative Assembly almost exactly one month before. The Civil Unions Act had created an institution paralleling heterosexual marriage but open to both same-sex and different-sex couples. A civil union was similar to marriage both to the extent that a ceremony was required for it to be brought into existence and because a validly contracted civil union was to be treated like marriage for the purposes of all ACT laws.^[1] However, a civil union did remain different from marriage, not only in name, but also in (legal) substance: for example, the ACT legislation did not provide that civil unions be treated like marriages for the purposes of federal, as opposed to Territory, legislation; nor did they operate in any other State or Territory. Nevertheless, Attorney-General Philip Ruddock, in explaining the federal government's response to the ACT Act, argued that the ACT legislature was 'provocatively and deliberately seek[ing] to intrude into areas in which they have no responsibility'.^[2] (The new Civil Partnership Bill, by providing that civil partnerships be treated like domestic partnerships rather than marriages, is intended to address this objection — although the difference is essentially terminological, given that domestic partnerships attract virtually all of the consequences of marriage under ACT law.)^[3] In his own attempt at justifying the government's determination to disallow the civil unions legislation, Prime Minister John Howard seemed rather less inclined to rely on the technical ground of the Territory's supposed overstepping of its legislative competence. Rather, he addressed the substantive issue: 'It is a question of preserving as an institution in our society marriage as having a special character'^[4] Just as the Attorney-General was quick to disclaim any antipathy on the government's part towards the idea of self governing Territories,^[5] so did the Prime Minister take pains to point out that he and his Ministers 'are not anti-homosexual people, or gay and lesbian people. It is not a question of discriminating against them.'^[6]

The two different justifications provided by the Attorney-General and the Prime Minister for the government's opposition to the Civil Unions Act 2006 (ACT) are illustrative, respectively, of two general sets of questions relating to the issue of marriage-like same-sex relationship recognition in Australia: questions of constitutional law and jurisprudential normative questions. The constitutional law questions are essentially whether or not the States and Territories can legislate for same-sex marriage ('SSM') and civil unions and, if so, what is the effect of such laws. The jurisprudential questions revolve around the central question of whether or not the law should treat marriage as necessarily heterosexual.

The two sets of questions are obviously related: as the disallowance of the civil unions legislation has shown, conservative forces promote their anti-gay agenda by mobilising both legal and moral arguments. Nevertheless, the two sets of questions are, at another level, independent of each other. In particular, while the constitutional law questions are jurisdiction-specific (they are relevant to Australia because of the particular federal constitutional arrangements enshrined in the Commonwealth Constitution), the jurisprudential questions are both more universal and less contingent in nature (they are relevant both to Australia and other jurisdictions, and they would be likely to be relevant to Australia even if the constitutional context were different). The constitutional law questions have not been systematically analysed yet by commentators; the confusion engendered by the Commonwealth government on occasion of the disallowance of the ACT civil union legislation makes it particularly appropriate to deal with them at this point in time. The literature addressing the jurisprudential questions is considerably more abundant. Nevertheless, it is timely to address these questions as well, as they have become increasingly topical in Australia in recent years as a result of the ideological stance adopted by the Howard government against SSM (and now civil unions). This has awakened an interest, which had traditionally been largely lacking in the Australian lesbian and gay community, in marriage or marriage-like forms of relationship recognition.

In this article I analyse both the constitutional and the jurisprudential questions mentioned above, taking the statements made by the federal government on occasion of the disallowance of the Civil Unions Act as my point of departure. In relation to both sets of questions, however, I shall go beyond the terms of the questions as set by the Attorney-General and the Prime Minister respectively. With regard to the constitutional law discussion, I shall argue that the central question is not the one of legislative competence raised by the Attorney-General ('Can the Territories, or States, legislate for civil unions or SSM?') but one of consistency between laws passed at different levels of government ('Would State or Territory SSM or civil union laws be consistent with the Marriage Act 1965 (Cth), either as it is now or as it conceivably may be in the future?'). In respect of the jurisprudential questions, since the Prime Minister's moral case for the inherent heterosexuality of marriage was notable by its brevity and lack of sophistication, I will look at the New Natural Lawyers' version of that case, on the assumption (which I will justify) that something like it ultimately informed the Prime Minister's views, and also because I believe that conservative forces in the future are increasingly likely to appeal to New Natural Law Theory when formulating or trying to defend their policies. In responding to the New Natural Lawyers' defence of heterosexual marriage, I will give my own spin to some objections that have already been levelled at it by others, as well as develop novel arguments against it.

Given the complexity of the argument and the limited space available, my analysis of both sets of questions cannot be as thorough as it would be had I chosen to concentrate on only one set of questions. But then my goal in this article is neither that of making the definitive case for the constitutional validity of State SSM legislation, nor that of providing a fully developed defence for the morality of SSM and the shortcomings of the New Natural Lawyers' moral vision. Rather, I am interested in beginning to point in the direction of arguments that cast doubt over the legal and moral objections mobilised against SSM in this country: that is, over the uncritical assumption that State SSM legislation would conflict with the federal Marriage Act and over the knee-jerk response that the value of marriage is inseparable from its heterosexuality. The level of my analysis will be pitched in accordance with these 'limited' ambitions.

B THE CONSTITUTIONAL LAW QUESTION

1 The ACT and civil unions

a The Civil Unions Act 2006 (ACT) and its disallowance

The Civil Unions Act 2006 (ACT) was passed by the ACT Legislative Assembly pursuant to the legislative powers conferred upon it by the Australian Capital Territory (Self-Government) Act 1988 (Cth), which in turn was passed by the Commonwealth Parliament relying on s 122 and/or 52(i) of the Constitution. These constitutional provisions confer on the Commonwealth Parliament a power to legislate — respectively, for the Territories generally and for the ACT — which is unrestricted by any limitation as to subject matter.^[7]

Although the ACT Legislative Assembly, like the legislatures of the other self-governing Territories, has 'plenary' powers and is not a 'mere delegate … of the superior [Commonwealth] Parliament by which [its] powers were granted',^[8] in practice the Commonwealth Parliament retains considerable control over it. On the basis of the doctrine of 'paramountcy', the Commonwealth Parliament can pass laws delimiting the Legislative Assembly's powers (for example by removing certain subject matters from the latter's legislative competence); it can override laws already passed by the Legislative Assembly; and its laws prevail over those of the ACT to the extent of any inconsistency (this result, quite apart from any doctrine of paramountcy, is secured by s 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth)).

Not only is the relationship between the respective legislatures of the Commonwealth and the ACT thus characterised by the paramountcy of the former; even the federal executive of the day has the power to interfere with the ACT's legislation. In particular, according to s 35 of the Australian Capital Territory (Self-Government) Act 1988 (Cth), the Governor-General can disallow any Act passed by the Legislative Assembly within six months of its enactment (the effect of the disallowance is to deprive the enactment of any force, at least prospectively). Because of the constitutional convention that the Governor-General acts on the advice of the Ministers (even with respect to the Governor-General's powers for which such a requirement is not expressly stated in the constitutional text, and except for the very narrow exception of the so-called 'reserve powers'), the Governor-General's power of disallowance is in effect a power exercisable at the discretion of Cabinet (subject to the control of the federal legislature, which has the power to disallow the Governor-General's act of disallowance.^[9])

It is precisely through the mechanism of disallowance by the Governor-General — resort to which is 'very unusual'^[10] — that the Civil Unions Act was terminated by the Commonwealth government. On 6 June 2006, less than a month after the Act was passed, Cabinet resolved that Governor-General Michael Jeffery should disallow the legislation on 1 August.^[11] The ACT Chief Minister, Jon Stanhope, responded the following day by announcing that he could make representations to the Governor-General 'not to be a party to an act that would discriminate against Australian citizens who have a different sexual orientation'.^[12] Representations were indeed made (in a move described as 'unprecedented')^[13] six days later, on 13 June, but they were authored by the ACT Legislative Assembly itself and presented to the Governor-General by the Assembly's Speaker^[14] rather than the ACT Chief Minister — highlighting that the federal intrusion in the Territory's affairs was all the more objectionable for its involving an executive body (The federal Cabinet) interfering with a law-making one (the ACT Assembly).

But the convention that the Governor-General acts on the advice of the Commonwealth Ministers is too well established and the ACT Legislative Assembly's address to the Governor-General failed, predictably, to deliver its intended outcome. Indeed, less than two hours after receiving the representations from the ACT, the Governor-General met with the Attorney-General, Philip Ruddock, and Territories Minister, Jim Lloyd, and signed the instrument disallowing the ACT legislation, which ceased to have any force effective at midnight that day.^[15] This early disallowance, taking place one and a half months sooner than the date originally announced, was a deliberate move: the Prime Minister and the Attorney-General were keen on pre-empting the ACT's attempt at anticipating the date of the Act's entry into force, which would have had the effect of making the legislation become operative at least for a short period, ending on 1 August (the date on which the disallowance was originally scheduled to take place).^[16] Such a move on the part of the ACT would have provided those same-sex couples eager to obtain legal recognition with a window of time during which they could have rushed to celebrate civil unions, securing legal consequences for their relationships which the supervening disallowance, on 1 August, may conceivably have been unable to affect. The 13 June disallowance made it pointless for the ACT to attempt this move. A final attempt to frustrate the Commonwealth government's disallowance of the ACT Act failed two days later, when a motion to disallow the Governor-General's disallowing instrument was defeated in the Senate, despite the support it received from the Democrats, the Greens and most (but not all) of Labor, as well as from Senator Gary Humphries (ACT), who became the first Liberal Senator to have crossed the floor since the Howard Government first came into power.^[17]

b Constitutionality of, and reasons for, the disallowance

In constitutional terms, it was entirely within the power of the federal executive to do what they did in the way in which they chose to do it. Legally speaking, the government did not even need to come up with a reason to disallow the legislation. It was enough that both the power of the ACT to govern itself through the laws of the Legislative Assembly and the Commonwealth's power of disallowance that limits this power of self-government are provided for in the Australian Capital Territory (Self-Government) Act 1988 (Cth), which was validly passed by the Commonwealth Parliament pursuant to its power to make laws for the government of the Territories (s 122 of the Australian Constitution).

Politically, however, the government had to come up with some sort of justification for its actions, and the Attorney-General relied heavily on the notion that the Commonwealth was duly rectifying a 'wrong' committed by the ACT — that wrong being the ACT's enactment of ultra vires legislation:

[The ACT law was] deliberately intended to make the ACT arrangements as close as possible to marriage; when the marriage power is clearly vested in the Commonwealth.^[18] We have no quarrel with the Territory's legislating in those areas in which it has responsibility … [e]xcept when they provocatively and deliberately seek to intrude into areas in which they have no responsibility.^[19]
There are issues that remain the responsibility of the Commonwealth and marriage is one of those.^[20]

The first question raised by the Attorney-General's statements is whether the ACT Act was indeed, as the Attorney-General claimed, legislating with respect to marriage. It is very reasonable to maintain that it was not. The legislation expressly stated that a civil union was not a 'marriage'.^[21] Although, for the purposes of Territory laws, civil unions were put on a par with marriage,^[22] this was achieved by replacing the word 'marriage' or 'spouse' etc in all relevant Territory legislation with the expression 'marriage or civil union' or 'spouse or civil union partner' etc,^[23] rather than, for example, by providing that any reference to 'marriage' or 'spouse' etc be construed to refer also to civil unions or civil union partners etc. This reinforced the notion that the two institutions remained conceptually distinct, as did the provision that allowed only overseas same-sex civil unions, but not also overseas SSM, to be recognised as civil unions for the purposes of territory law.^[24] Also, a separate register for celebrants of civil unions was instituted, rather than allowing marriage celebrants to officiate civil unions.^[25] In short, the legislation effected a thoroughly segregated 'separate but equal' regime (one which could have been more offensive, perhaps, only if civil unions had been made available exclusively to same-sex couples), and did so precisely to appease the federal government's apprehension that the legislation was with respect to marriage.^[26]

Some may think that, despite this feature of the civil unions legislation, the distinction between marriage and civil union remained merely terminological: that is, they may agree with the Attorney-General's judgement that, by legislating on civil unions, even in the careful manner in which it did, the ACT government was in substance legislating with respect to 'marriage'. For the sake of argument I am prepared to concede that claim for the time being (but later in the paper I will argue that terminology in fact makes all the difference when it comes to conceptually distinguishing between marriage and civil unions). If the ACT was legislating with respect to marriage, was it within its power to do so? The Attorney-General's statements answer this question in the negative, but it is hard to see how Mr Ruddock could have reached such a surprising conclusion. According to s 22 of the Australian Capital Territory (Self-Government) Act 1988 (Cth), the ACT Legislative Assembly has the power to 'make laws for the peace, order and good government of the Territory.' Section 23 does go on to exclude a few subject matters from the reach of the Act's legislative power, but 'marriage' is not included among them. Thus, the Act from which the ACT derives its power to make laws does not exclude marriage from the legislative competence of the ACT.

Can such exclusion be found, nevertheless, elsewhere? The relevant 'elsewhere' is obviously the Australian Constitution, and the answer is an unqualified 'No'. If s 51(xxi) of the Constitution vested the power to make laws with respect to marriage in the Commonwealth to the exclusion of the States, then arguably marriage would be a subject matter with respect to which the legislatures of the self-governing Territories would also be barred from legislating.^[27] But the 'marriage power' is not an exclusive head of power.^[28] The States, and hence the Territories, can legislate with respect to marriage alongside the Commonwealth, and have done so for a variety of purposes.

True, State or Territory legislation will become inoperative by virtue of, respectively, s 109 of the Constitution or the paramountcy doctrine (and, as far as the ACT is concerned, s 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth)) if a court finds it to be inconsistent with concurrent Commonwealth legislation. But this is entirely different from saying that the States or the Territories have no legislative competence with respect to marriage, or that such legislation as the Civil Unions Act is unconstitutional (the point is worth emphasising, for it was missed not only in the statements of the Attorney-General — whose lack of accuracy some may be inclined to excuse as in the nature of political commentary — but also by some legal academics).^[29] Indeed, the notion of State or Territory legislation becoming inoperative by virtue of inconsistency with Commonwealth law presupposes, rather than denies, that the States or Territories have the legislative competence, that is the power, to pass the law in question.

It is clear, then, that the constitutional question is not whose 'responsibility' (to use the Attorney-General's terminology) it is to legislate with respect to marriage, but whether or not State or Territory laws providing for SSM or marriage-like same-sex relationship recognition can be consistent with the federal Marriage Act 1961 (Cth) ('Marriage Act'), which in 2004 was amended by the Howard government (with Labor's support) to expressly define 'marriage' as 'the union of a man and a woman to the exclusion of all others'.^[30] This question is one that the Howard government seems keen to prevent the courts from deciding, if it can be avoided at all, as suggested by the urgency with which it directed the Governor-General to disallow the Civil Unions Act 2006 (ACT). It is also a question that arose in 2005 when Tasmania and New South Wales were contemplating enacting State same-sex marriage Acts. In the next section I turn to that question.

2 The inconsistency question

a The scope of the marriage power

In 2005, a Same-Sex Marriage Bill and two cognate Bills^[31] were introduced in the Tasmanian House of Assembly as private members' bills. Shortly afterwards, a similar triad of Bills^[32] was also introduced in the Legislative Council of New South Wales, again as private members' bills. The Tasmanian Bills never got past the stage of first reading,^[33] while their NSW counterparts all lapsed on prorogation. The latter were reintroduced before the NSW Legislative Council in May 2006, but again fell on prorogation.^[34]

Regardless of the fate eventually met by these Bills, their introduction gave rise to the question of the consistency of State SSM legislation with the Commonwealth's Marriage Act and its hetero-normative definition of marriage. Answering that question requires, first of all, that the scope of the marriage power (s 51(xxi) of the Constitution) be determined. If it were the case that 'marriage' for the purposes of the marriage power meant only heterosexual marriage,^[35] it would seem that an issue of inconsistency could not even arise: the Commonwealth would then have the power to make laws under s 51(xxi) only with respect to different sex marriage and the Marriage Act would, by definition, operate in a field different from that of State SSM laws. (Note that this would not prevent a federal legislature committed to formal equality between same-sex couples and different-sex couples from extending the application of the Marriage Act and all relevant federal laws to same-sex marriages, as this could be achieved by the States referring their powers to the Commonwealth Parliament.)

However, it is at least, if not more, plausible to take the alternative view and argue, as some constitutional lawyers have done,^[36] that the marriage power does include the power to make laws with respect to SSM. This conclusion can be supported by adopting the sort of progressivist approach to constitutional interpretation championed by Justice Kirby.^[37] But one can reasonably make it even on the basis of less controversial approaches, if they are coupled with the connotation/denotation distinction that is part of the High Court's interpretive repertoire. This was perhaps implied in Justice McHugh's famous passage in the Re Wakim case:

The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above. Thus, in 1901 'marriage' was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably 'marriage' now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.^[38]

Stated in terms of the connotation/denotation distinction, the implication of this passage is that it may well be the case that the 1901 meaning of marriage as identified by Justice McHugh captures merely the denotation of the term at that time (that is, that to which the term was then applicable), rather than its connotation or core meaning. The connotation, or core meaning, of the term (that is, that which renders marriage the distinctive thing that it is) may well be more abstract and may not include any different-sex requirement at all, thus allowing the current denotation of the term to include also same-sex unions. Justice McHugh did not go on to address the question of what exactly the connotation of the term marriage is, but his implicit suggestion that it may not include a different-sex requirement is plausible, however contested the precise concept of marriage may remain. Thus, while I would argue that any plausible understanding of the core meaning, or connotation, of the constitutional term 'marriage' would need to appeal to ideas of romantic love, commitment and solemnisation,^[39] the case for including the different-sex requirement among the essential features of marriage is rather less strong. In particular, the fact that the drafters of the Constitution would automatically assume that people who marry are of different sexes does not necessarily make the different-sex requirement a part of the term's connotation. If we could establish that the drafters' minds specifically addressed themselves to the question, and rejected the possibility, of SSM, then we would probably have to conclude otherwise. But there is no evidence that the drafters did so. On the contrary, the very inconceivableness of SSM in 1900 opens up the possibility of legitimately considering any different-sex element attaching to the meaning of marriage as used at that time a matter of mere contingency rather than necessity. The immutable core meaning, or connotation, of the constitutional term 'marriage' is likely, therefore, to be something like a sexually intimate adult relationship between people who have made a public declaration of their commitment to each other in a ceremony (call this 'constitutional marriage' — CM). But because of cultural shifts, the denotation of the term, that is all the things existing in this world to which CM is applicable, has changed over time (as denotations — unlike connotations — can do without doing violence to the constitutional text). It may well be argued that by 2007, the change in denotation has come to include same-sex unions.^[40]

If 'marriage' for the purposes of the marriage power includes SSM, then questions of inconsistency between State legislation on SSM or civil unions and the Marriage Act can logically arise.

b Inconsistency with the Marriage Act 1961 (Cth)

In 2005, Professor George Williams and Associate Professor Kristen Walker were asked by the Tasmanian Gay and Lesbian Rights Group to express an opinion on whether or not the Tasmanian Bills were consistent with the Marriage Act which, as already indicated, had been amended the previous year to expressly define 'marriage' in heterosexual terms. Each of them reached the same conclusion: in their opinion the State SSM proposed Acts were consistent with the federal statute.

Both Walker and Williams pointed out that, of the three types of inconsistency that, according to the High Court's jurisprudence, render inoperative a State law conflicting with a federal law, only the 'cover the field' type of inconsistency was relevant to the case of SSM as regulated in the Tasmanian Bills.^[41] This type of inconsistency arises if the relevant Commonwealth law evinces an intention to regulate exhaustively, that is be the only law that there is in, a particular field. Both Williams and Walker argued that the Marriage Act, in setting up a detailed and comprehensive regime, does implicitly evince an intention to cover the field — but only the field of different-sex, not also same-sex, marriage. Williams's detailed analysis is worth reproducing at length:

19. Type 3 inconsistency … involves answering two questions. First, is the Commonwealth law intended to be exclusive within its field? Second, what field is covered by the Commonwealth law and does the State law operate in that same field?
20. The first question is straightforward where the Commonwealth law evinces an express intention that it is to be exclusive within its field. In other cases, the Court will look to a variety of factors, such as the subject-matter of the law and whether for the law to achieve its purpose it is necessary that it be a complete statement of the law on the topic (Viskauskas v Niland [1983] HCA 15; (1983) 153 CLR 280)…
22. [I]t is likely that a Court would find that the Commonwealth Marriage Act is intended to be exclusive within its field. The detailed and comprehensive regime in the federal Act as well as the problems of having two sets of laws dealing with marriage are strong indicators of this.
23. The issue is thus to be determined by the second question, that is, the field covered by the Commonwealth law and whether the State law operates in this same field … The field 'covered' by a law is often difficult to discern and can require subjective judgment as the High Court has not laid down a precise test that can be applied. In this case, the field covered by the Marriage Act is likely to be either the field of marriage generally (whatever the sex of the partners) or more specifically the field of different-sex marriage.
24. My opinion is that the Commonwealth Marriage Act covers the field of marriage in so far as the concept is defined by that Act, that is between 'a man and a woman to the exclusion of all others'. The Act is definite in establishing the boundaries of marriage for the purposes of that Act as being different-sex marriage. It is also significant that the Act only seeks to prevent the recognition of same-sex marriage in respect of certain unions under foreign law. The Act says nothing about such unions if recognised by State law …
26. The Tasmanian law does not, in general, operate in the federal field of different-sex marriage …
31. [T]he State and federal laws both deal with marriage, but in a different form. Apart from the possibility of concurrent marriage [remedied by provisions in the Tasmanian laws that render a person's same-sex marriage, whether contracted before or after her different-sex marriage, void], there is little or no interaction between the schemes.
32. If the proposed Same-Sex Marriage Act had sought to gain recognition for same-sex marriages under the Marriage Act it would be inconsistent with that Act (the Marriage Act provides exclusively for the marriage of different-sex couples). However, the Tasmanian Act recognises same-sex marriage without seeking to gain recognition under federal law. The Act instead recognises a form of commitment that is given force by Tasmanian law. The consequence is that, while the federal and States Acts both refer to what they call 'marriage', they are two laws that operate in different fields.^[42]

In short, because the Marriage Act expressly defines marriage, for the purposes of the Act, in heterosexual terms, it limits the operation of the Act, and its intention to cover the field, to the field of different-sex marriage. Hence there was no inconsistency between the Marriage Act and the Tasmanian Bills, which did not seek recognition of SSM under the Marriage Act (or for the purposes of other federal laws), but only under State law.

Walker's and Williams's conclusion can be extended to such legislation as the Civil Unions Act at least insofar as it provides recognition for same-sex civil unions. Indeed, if one takes the view that a civil union is by definition not 'marriage',^[43] then it would follow that there could arise no issue of inconsistency between the Marriage Act and such acts as the Civil Unions Act even if the Marriage Act did try to cover the field of marriage generally, rather than only — as it appears to do — of heterosexual marriage. This is because, if such a view is taken, Acts such as the Civil Unions Act would be operating in a field ('civil unions') that the Commonwealth cannot affect through its 'marriage' power.^[44]

If Walker's and Williams's analyses are correct, the 2004 amendments are, in and of themselves, incapable of rendering State SSM (or civil unions) legislation inoperative. However, in the future further laws might be passed amending the Marriage Act with a view to rendering inoperative State (or Territory) legislation on SSM (or civil unions) by virtue of inconsistency. The next section considers the inconsistency question as it is likely to arise as a result of the Commonwealth government's passing such laws. In particular, subsection c(i) focuses on Commonwealth legislation intended to affect State or Territory SSM statutes and subsection c(ii) with Commonwealth legislation targeted at State or Territory civil union statutes.

c Inconsistency with conceivable future amendments to the Marriage Act 1961 (Cth)
i Same sex marriage

Imagine an amendment directed at State SSM, for example one providing that the only relationships qualifying as marriage for the purposes of both Commonwealth and State marriage laws are marriages as defined and entered into under the Marriage Act. (Call this meaning of marriage 'federal marriage' — FM. FM, if the connotation/denotation analysis referred to above holds true, identifies a subset of all the relationships potentially coming under CM.) The amendment could be differently worded but be to the same effect: for example it could provide that SSM has no legal effect whatsoever for either State or Commonwealth purposes. At first blush, such a provision would seem to render State SSM laws inoperative by virtue of direct inconsistency.^[45] This is because SSM, as argued in the previous section, identifies a class of relationships that is, by hypothesis, a subset of CM; thus the federal law at issue, in its application to SSM, would appear to be within power. If it were, a judge could not obey a State law requiring her to treat a SSM spouse like her heterosexual counterpart for a certain State legal purpose (say, a declaration of parentage) without at the same time violating the federal provision instructing her (whether expressly or by implication) to treat the relevant person as if she were single. By virtue of s 109 of the Constitution, the judge would go on to apply the federal provision and declare the relevant state law provision inoperative.

But this argument is less than water-tight. Consider the doctrine of so-called 'manufactured inconsistency', whereby 'attempts by the Commonwealth to manufacture "inconsistency" between its own legislation and that of the States will often be essayed only at the price of making the Commonwealth legislation ultra vires.'^[46] It is true that, as the recent Workchoices case shows, attempts at invoking the doctrine of manufactured inconsistency tend to fail.^[47] However, that case also demonstrates that the Court has not discarded the doctrine itself, which was discussed and found not to apply to that case rather than not to be good law any longer. Citing with approval Justice Dixon's statements in Wenn v Attorney-General (Vic),^[48] the Court clarified that a federal law can cover the field even if its own regulatory regime leaves unregulated certain areas previously taken care of by State law; but it did maintain the distinction between such a case and one in which the subject has not been 'effectively dealt with'^[49] by the Commonwealth law purporting to displace State legislation. The implication of reiterating the distinction between the two sorts of cases is that in cases of the latter type the doctrine of manufactured inconsistency does operate to render the Commonwealth legislation ultra vires.^[50]

Consider now, how the doctrine, thus understood, could operate with respect to a federal law such as the one imagined above: a law to the effect that, for the purposes of State law, people in SSM should be treated as if they were single. It is not implausible to argue that such a law would amount to 'a bare attempt to exclude State concurrent power from a subject [ —that is SSM — ] the federal legislature has not effectively dealt with by regulation … or otherwise.'^[51] Much would of course turn on how the Court decided to interpret the expression 'dealing effectively with'. While we can rule out at the outset that the Court would settle on a meaning of the 'effectiveness' requirement which would lead it to engage in an enquiry into the substantive merits of the Commonwealth regulatory regime, neither can we assume that it would choose an understanding of the requirement so diluted as to make it completely redundant. I would argue that, even accepting that the 'effectiveness' requirement involves no more than a relatively un-intrusive enquiry on the part of the Court into the Commonwealth legislative scheme, the federal law imagined above might well fail to withstand the scrutiny of such an enquiry. This is because such a law would prescribe the treatment to which people in same-sex marriages are to be subjected by reference to the laws of the States dealing with single people — whatever these might be or become at any point in time, and hence, by definition, regardless of any evaluation on the part of the Commonwealth of the appropriateness of thus treating same-sex spouses. This circumstance may well be enough to make the Commonwealth law beyond power by reason of its failing to effectively deal with the relevant subject matter — a conclusion that the Court could reach without itself engaging in any enquiry into the appropriateness or desirability of the substantive legal treatment afforded to people in same-sex couples as a result of the federal law directing that they be treated as if they were single.

In short, under the doctrine of manufactured inconsistency, it is plausible to argue that general federal provisions such as those prefigured above would not succeed in rendering inoperative States’ SSM laws.^[52] Something more might well be required. The Commonwealth could begin, perhaps, by making it a criminal offence to solemnise same-sex marriages. This provision would be directly inconsistent with State SSM statutes providing for such solemnisation, thus rendering them inoperative. This, however, would not, by itself, necessarily affect State laws that attach certain legal consequences to (as opposed to provide for the solemnisation of) SSM.^[53] Hence the Commonwealth would also need to enact a fairly specific regime substantively specifying how to treat SSM spouses in such circumstances as those in which State SSM laws would apply to them (eg for the purposes of the status of children, division of property, witness privileges, etc). Such federal enactment could then render at least certain individual State SSM provisions inoperative by virtue of direct inconsistency and, if sufficiently comprehensive, perhaps have the same effect on all other State SSM provisions by evincing an intention of covering the field.^[54]

ii Civil unions

Depending on whether or not civil unions are regarded as being marriage by another name, they may or may not be affected by an amendment to the Marriage Act attempting to deprive (hypothetical) State civil unions laws of their force. If a civil union is marriage by another name, then the Commonwealth has power to legislate in relation to it under the marriage power. If it is not, then a Commonwealth law cannot affect State civil unions by relying on the marriage power.

Above, I have argued that a plausible understanding of the core meaning of marriage views this as a sexually intimate adult relationship between two people who make a public and solemnised declaration of their commitment to each other. If this definition of marriage is thought to be exhaustive, then it would appear that a civil union is marriage by another name: the solemnisation element is what sets marriage apart from de facto relationships (or registered partnerships such as those available under the Relationship Act 2003 (Tas)), but solemnisation is central to civil unions — and, for that matter, to 'civil partnerships' as proposed in the new Civil Partnerships Bill 2006 (ACT). It would seem to follow that civil unions/partnerships fall within the scope of CM, and hence the Commonwealth has power to make laws with respect to them.

However, it may also be argued that the core meaning of marriage (the meaning that provides the basis for the connotation of the word 'marriage' in the Constitution) is more restricted than we have so far assumed. It may be that sexually intimate adult relationships between two people who make a public declaration of their commitment to each other really count as 'marriage' only if there is an authoritative discourse in society (ordinarily the law) that calls them 'marriage'. If the meaning of CM contains this additional element — that the relevant relationship be labelled 'marriage' by the law or other authoritative discourse — then civil unions/partnerships do not fall within CM and the Commonwealth cannot render inoperative State civil unions/partnerships laws because it lacks the legislative power to affect relationships called merely 'civil unions'/'civil partnerships'. Thus, imagine an amendment to the Marriage Act providing that the only form of solemnised relationship to automatically attract the legal consequences of marriage, for federal and State purposes alike, is FM. Would a provision to this effect render any State civil unions/partnerships law inoperative by virtue of s 109 of the Constitution? If the analysis in this paragraph (distinguishing marriages from civil unions/partnerships on the ground of their name alone) holds true, then the answer must be 'No', simply as a matter of characterisation.

In the vocabulary of constitutional law, characterisation is the interpretation of a Commonwealth statute in order to determine whether or not it falls within one of the heads of Commonwealth legislative power enumerated in the Constitution, and hence whether or not it is valid. It is well established that questions of characterisation should be approached through a test of both legal and practical operation of the statute.^[55] The federal provision we are imagining would plainly fail the legal operation test, for its legal effect would be to remove rights, privileges, duties, etc that attach to civil unions/partnerships — but these are, by hypothesis, a non-CM subject matter. As to the practical operation of the provision, this again would significantly affect non-CM relationships, while any impact on FM relationships would be at best indirect and constructive. In particular, the only practical (in the sense of meta-legal) effect the provision would have on FM would be to symbolically preserve or bolster its status as the government's preferred form of sexually intimate adult relationship (relevantly, the need to protect the status of marriage was precisely the substantive reason adduced to justify the disallowance of the Civil Unions Act).^[56] This effect is, I would argue, intangible enough to make the connection between the imagined federal law and the marriage power insufficient to justify the conclusion that the law is with respect to CM. In short, despite its express reference to FM, such a provision would not appear to be fairly described as being with respect to CM.

One could argue that preventing the Commonwealth from using the marriage power to affect State civil unions/partnerships on the ground that the relevant relationships are called by relevant State law 'civil unions'/'civil partnerships' rather than marriages privileges form over substance. That is true in a sense, but it is also true that the debate about SSM vs same-sex civil unions/partnerships is one that has everything to do with form to begin with. Typically, 'civil unions'/'civil partnerships' are a creature of law, and particularly of those legal systems that, although prepared to extend all or substantially all of the legal consequences of marriage to same-sex relationships, are or have been keen on maintaining a last but symbolically important distinction at the level of form — one that would send out the message that although solemnised same-sex relationships should attract the same legal treatment prescribed for marriages, they should not be granted the stamp of full societal approval associated with marriage.^[57] This fairly typical stance appears to capture the views of the Labor Party:

The public comments of Opposition Leader Kim Beazley, shadow attorney-general Nicola Roxon and shadow territories minister Kim Carr all point to Labor moving for the disallowance of Commonwealth intervention against the ACT [civil unions legislation] while maintaining support for the Commonwealth Marriage Act … [and its definition of] marriage as the exclusive union of a man and a woman.^[58]

The message that civil unions (or civil partnerships) are not the same as marriage was sent out by the ACT legislation itself,^[59] though, perhaps, not necessarily in order to make a political statement about the superiority of marriage in which the law-makers believed, but, presumably, precisely in order to persuade the Commonwealth government to leave the legislation alone. This message, however, seems to have failed to convince the Howard government: both the Prime Minister and the Attorney- General implied that they believed the ACT legislation to be really about marriage.^[60]

Because of the wide scope that the Commonwealth retains to interfere with Territory legislation — an interference which need not rely on the marriage power — it was not actually crucial for the government to argue or imply that the ACT Act was really about marriage: the disallowance of the ACT law was constitutionally permissible regardless of the truth of this proposition. But should a State pass an Act analogous to the ACT's Civil Unions Act, the Commonwealth may well be unable to affect it through the marriage power if the view is taken that the distinctiveness of a civil union lies precisely in its name, which is enough to set it apart from marriage and hence to make it fall outside CM and beyond the reach of the marriage power.

e Conclusion

I have argued that the Commonwealth may be able to render inoperative State SSM (or civil unions/partnerships) laws by virtue of inconsistency relevant under s 109 only subject to two stipulations. The first is that CM includes SSM (or civil unions/partnerships) — if it does not, then the Commonwealth cannot affect State SSM (or civil unions/partnerships) laws using the marriage power. The second is that the Commonwealth goes to rather greater lengths than just passing a law making FM the only legally significant meaning of marriage for all purposes, including State purposes.

C THE MORAL QUESTION

1 Introduction

While, in justifying the disallowance of the ACT legislation, the Attorney-General stressed — and mischaracterized — the constitutional, legal, question, the Prime Minister emphasised the moral, normative, question: marriage had to be preserved as a heterosexual institution.^[61] The Greens took issue with this justification for disallowing the Act: 'The only explanation offered is that civil unions would "undermine" marriage, but they cannot explain how this would actually happen.'^[62] Indeed, Labor, as we have seen, was apparently prepared to support the legislation partly because it believed it did not impact on marriage as a heterosexual institution.

The government and the opposition disagreed about the proposition that recognising same-sex civil unions would have the effect of undermining heterosexual marriage. They both took for granted one point, however: that marriage should remain heterosexual, apparently because they believe that the value of the institution is somehow bound up with its heterosexual character.^[63] Whether or not the value of marriage is inseparable from its heterosexuality is not only the logically antecedent question in the debate over civil unions, but also a fundamental moral question relevant to the issue of the legal recognition of SSM. As we have seen, assuming that CM includes SSM, the Commonwealth could use the marriage power to render inoperative State SSM statutes. But should it?

Given the paucity, tautological character and lack of sophistication of the justifications provided by the government for keeping marriage heterosexual,^[64] one has to look elsewhere in order to make sense of the proposition that the value of the institution is somehow inseparable from its heterosexual character. New Natural Law theory provides the most elaborate theory of marriage among those seeking to justify the value of the institution in a way that poses the different sex of the spouses as central to what counts as (valuable) marriage.^[65] Further, New Natural Law theorists themselves have claimed that their 'account [of marriage] also articulates thoughts which have historically been implicit in the judgements of many non-philosophical people'.^[66] The plausibility of this claim seems to be borne out by the similarities between the arguments made in defence of heterosexual marriage by Finnis (the foremost New Natural Law exponent) and those provided by Family First Senator Fielding (Vic) when enthusing about marriage during the debates on the motion to disallow the Governor-General’s disallowance.^[67] It seems also significant that, although the Prime Minister, in defending the disallowance of the ACT law, did not expressly use Finnis's children and sexual complementarity arguments (analysed below), similar arguments have figured as part of his rhetorical repertoire when defending other regressive policy proposals on the ground of sexuality or gender.^[68] Indeed, with such people in Howard's Ministry as conservative Catholic Tony Abbott, and given Finnis's own position of prominence within high profile international Catholic networks and circles,^[69] it would be surprising if New Natural Law Theory had not played a role in directly informing the government's action on the ACT legislation.

In addition to informing executive and legislative initiatives of the sort described in this paper, normative arguments for or against the necessary heterosexuality of marriage such as those advanced by New Natural Law Theory are likely to figure among the considerations that Courts might take into account when attempting to determine the constitutional meaning of 'marriage'. This is not so much because the courts would necessarily try to fill that constitutional term with a meaning that happened to support their own convictions on what marriage should be about; rather, it is because a consideration of contemporary debates about what marriage should mean is relevant to establishing what is the contemporary denotation of the term, and may even assist us in determining what is the stable connotation of that term across time. In other words, the constitutional questions considered in the first half of this article are more than just accidentally connected with the normative questions analysed in the second part: the connection is not just at the level of contingent political discourse (both constitutional and normative arguments having been adduced to defend, for example, the disallowance of the ACT legislation), but operates at a deeper level, normative questions being partly relevant to answering the constitutional questions.

2 New Natural Law and marriage: Finnis

a Premise

New Natural Law Theory is an elaboration of the strand of natural law developed by St Thomas Aquinas in the Middle Ages, according to whom the purpose of law is to promote the common good of society, which is knowable by human beings thanks to their reasoning powers.^[70]

The New Natural Law theorists paint (heterosexual) marriage as a good in itself.^[71] John Finnis has it that there exist intrinsic goods the unalloyed goodness of which is a matter of full presence to our practical reasoning.^[72] Some such goods are life, aesthetic experience, play, religion,^[73] and marriage itself.^[74]

Finnis links the good of marriage to its being 'the way of life made intelligible and choiceworthy by its twin orientation towards the procreation, support, and education of children and the mutual support and amicitia of spouses who, at all levels of their being, are sexually complementary.'^[75]

This position has already been criticised by other commentators in different contexts.^[76] For example, as Finnis's theory on marriage is conceived to be at the same time a theory of why homosexuality is wrong, Nicholas Bamforth has taken issue with it for the purpose of defending his own autonomy-based arguments in favour of using the law to protect lesbians and gay men against hostile treatment.^[77] Bamforth has argued that Finnis's theory does not make sense unless one subscribes to the conservative Roman Catholic perspective underlying it, which is likely to be unappealing to many.^[78]

Others have discussed Finnis's (and other New Natural Lawyers') position in order to show why the arguments it makes against SSM are unconvincing. In order to do this, much attention has been devoted to Finnis's contention that same-sex intercourse (unlike heterosexual intercourse, even by a sterile couple) is immoral and incapable of realising the good of marriage. Among other things, it has been argued that New Natural Law Theory can be used just as readily to support as to undermine the case for SSM;^[79] that in order for it to deny the value of same-sex intercourse and gay marriage it needs to make arguments that either are theology-based or counterintuitive, thus failing the test of practical reasonableness (which New Natural Law itself takes as relevant and, indeed, fundamental);^[80] that the theory has failed to show that there is any special connection between marriage and procreative intercourse; and that it ultimately needs implicitly to rely on the discredited strategy of 'imputing divine intentions to natural phenomena.'^[81]

In order to explain why Finnis's theory of marriage does not prove the immorality of same-sex relationships and does not make convincing arguments against the recognition of SSM, one need not argue that Finnis's contentions are unhelpful to throw light on the value of marriage in the first place. In fact, the commentators referred to above have generally not argued this, sometimes conceding too much, in my view, to Finnis's points or to the assumptions implicit in his theory.^[82] But I wish to take issue with Finnis's theory precisely at this more fundamental level, arguing that the theory does not convincingly explain why marriage is valuable at all.

Finnis's statement, reported above can be split into two separate claims, which Finnis himself distinguishes within his argument. The first claim, broadly stated, is that marriage is valuable in light of considerations related to procreation/childrearing. The second claim is that it is valuable because of the special friendship that obtains between husband and wife. Because Finnis's argument appears rather complex (at least in the form he puts it), it seems useful, analytically, to consider its discrete components.^[83]

b The first claim: children

First, Finnis holds that 'marriage is rational and natural [in the sense of morally valuable] primarily because it is the institution that physically, biologically, emotionally, and in every other practical way is peculiarly apt to promote suitably the reproduction of the couple by the generation, nurture, and education of ultimately mature offspring.'^[84]

Finnis's point seems to be that (heterosexual) marriage is the institution peculiarly apt to promote child breeding and rearing. But the truth of this statement is dubious, even if it has been left relatively unchallenged^[85] or unexplored^[86] by at least some of Finnis's critics. In claiming that marriage is 'in any … practical way' (emphasis added) peculiarly apt to the rearing of children, Finnis seems to have in mind marriage as a real-life institution (marriage as it tends to work in practice) rather than marriage in its idealised form.^[87] This is a crucial point, because it makes sociological and psychological evidence relevant to testing the plausibility of Finnis's claim. There is, however, reason to doubt that the nurturance and well-being of children is peculiarly well served by

nuclear families with two married, monogamous parents [even where they] … want to have children and are willing to devote themselves to caring for them … [Centring the well-being of children around heterosexual marriage] ignores the extent of distress and dysfunction in this … family form … [I]n a surprisingly high proportion of couples, the arrival of the first child is accompanied by increased levels of tension, conflict, distress, and divorce, not because the parents are self-centered but because it is inherently difficult in today's world to juggle the economic and emotional needs of all family members, even for couples in relatively 'low-risk' circumstances.^[88]

Might it not be the case that children, under any practical aspect, are better reared and educated (let alone generated) in communes in which every child has several parents? The crucial question here is 'under what kinds of domestic arrangements, and in what kinds of social institutions and relationships, adults and children best flourish. Of course, sociology and psychology are nowhere near to a definitive answer to this, and nor could they be in a changing world.'^[89] In light of this, it is unclear how our practical reasoning can come to the conclusion that marriage is the institution peculiarly suitable for child rearing — unless our practical reasoning is assisted by assumptions whose soundness we have not been sufficiently prepared to interrogate. Thus this conclusion cannot work as an adequate ground for the peculiar value of marriage.

Although we can be rightly suspicious, on the basis of the available evidence, of the claim that heterosexual marriage is the best practical context for childrearing, it might be that Finnis's point is simply that marriage has the potential for working as such a context, and that under ideal (or even only less imperfect) social conditions it would deliver on its promise (here the law could play an important role in promoting those conditions). But even the plausibility of this weaker claim is less than self-evident. How could have Finnis reached it? Nicholas Bamforth has argued, with respect to Finnis's contentions about sexual activity, that his 'claims … do not inevitably follow, as a matter of logic, from his apparently "neutral" conceptions of basic goods and practical reasonableness; in fact, they only follow if certain additional … precepts are built into the argument.'^[90] I would argue that Finnis's claim that heterosexual marriage is best for children similarly relies on additional and undisclosed precepts.

In particular, it is hard to see how the intermediate steps that carry Finnis from his abstract notions of basic goods to the conclusion that heterosexual marriage is the institution peculiarly geared toward children's well-being can avoid being bound up with the notion of sexual complementarity. In other words, Finnis seems to be implying that heterosexual marriage is the most balanced growing environment for children because the two sexes are endowed with complementary attributes. The notion of sexual complementarity is also integral to the second of Finnis's claims about the value of marriage. I will discredit it while discussing this other claim.

c The second claim: friendship

The second claim that Finnis makes is that marriage is valuable because marriage is that 'distinct form of societas and friendship'^[91] that unites a husband and a wife.

It seems that in Finnis's view this societas, or amicitia (friendship) can be realised in the absence of the actual begetting of children, but that its distinctive significance derives from marriage being oriented towards procreation.^[92]In particular, in Finnis's view, the institution of marriage makes sense inasmuch as it is oriented towards procreation: it is the orientation towards children that he thinks explains, for example, why the spouses are required to be sexually monogamous and engaged in a permanent relationship.^[93] Now, it seems clear that the marital societas is a distinctive good (when compared to other forms of friendship) precisely inasmuch as it is governed by the rules (including monogamy) that constitute the institution of marriage^[94] (in fact the marital societas is defined as an 'exclusive and permanent cooperative relationship').^[95] Because the institution makes sense inasmuch as it is oriented towards procreation, and the rules constituting the institution regulate the marital societas, it would seem to follow that the peculiar value of the latter is itself shaped by the institution's orientation towards procreation.

Yet 'orientation towards children' — as that which endows the societas with its distinctive value — does not mean that the couple must beget children. Indeed, Finnis states that not even the spouses' wish to have children is required.^[96] Even if the orientation towards children appears to be an essential feature of the societas, Finnis specifies that the spouses' societas is a good in itself, and, as such, not instrumental to procreation.^[97]

But in what sense, then, must the orientation towards children, which makes the spouses' friendship distinctively valuable, be intended? As in Finnis's view marriage is a 'two-in-one-flesh common good',^[98] the special societas that unites the spouses seems — according to an idea that has ancient roots^[99] — to need sexual intercourse in order for it to be a distinctive good at all.^[100] The necessity of sexual intercourse to the marital communion is not explicitly declared by Finnis in his pieces on marriage; yet one has to read it into his theory in order to make sense of it.^[101] In particular, the marital societas needs a couple engaging in sexual acts of the reproductive kind.^[102] In this sense, it seems, sexual acts belong, in Finnis's view, to the category of acts not merely incidental but 'intrinsic … to a sharing in the "whole life" of the marital household.'^[103] These acts need not be intended by the spouses to produce children, but they must be of a type abstractly capable of producing them (ie acts of unprotected uninterrupted penile-vaginal intercourse).^[104] This is, then, what the 'orientation towards procreation' requirement means.

At some points one has the feeling that Finnis wants to defend the contention that a husband and wife having penile-vaginal intercourse are endowing their relationship with value for no reason other than sexual organs are supposedly designed to interact in certain ways. During marital sex the spouses 'do function as a biological (and thus personal) unit and thus can be actualizing and experiencing the two-in-one-flesh common good and reality of marriage'.^[105] This is because, as he clarifies, 'the whole process of copulation, involving … the brains of the man and the woman, their nerves, blood, vaginal and other secretions … is biological through and through.'^[106]

However, Finnis elsewhere says that sexual acts of the reproductive kind 'express, actualize, foster, and enable one as a spouse to experience … one's own commitment (self-giving) in marriage.'^[107] The degree and kind of commitment that marriage requires (expressed, for example, in the monogamy imperative) is, as we have seen, a consequence of its orientation towards children. Thus it seems that for Finnis the societas really needs sexual intercourse so that the openness of marriage to children can receive a concrete meaning in this sense: a couple having complete, unprotected sexual acts, even if they do not want children, are knowingly 'assuming the risk' of begetting them, being prepared to deal with all the related responsibilities.

If, however, the spouses' amicitia is intrinsically good because of its being open to children in the sense just illustrated, the account Finnis provides fails because of problems of self-consistency. The marriage of a sterile couple would be open to children not even in this limited sense. Yet, Finnis claims that the spouses in such a couple participate in the good of marriage, intended as the peculiarly marital type of friendship. They would do so 'because they can make every commitment and can form and carry out every intention that any other married couple need make, form, and carry out in order to be validly married and to fulfil all their marital responsibilities.'^[108] But what can these commitments and intentions possibly be, if their significance is to be tested against a notion of marriage's orientation towards children that is even thinner than the somewhat minimal one I have identified at the end of the previous paragraph?

The problems posed to Finnis's theory by the case of the sterile heterosexual couple are often made central in the arguments of his critics, who highlight how they undermine his point that same-sex intercourse is morally wrong and that therefore SSM is an oxymoron. For our purposes, the case of the sterile couple seems to invalidate any claim that the friendship of heterosexual spouses is, thanks to its being open to children, endowed with a distinctive value which explains why heterosexual marriage is good.

Interestingly, at the end of his discussion of the case of the sterile couple, Finnis suddenly introduces (without elaborating on it) a novel justification for the claim that heterosexual intercourse endows the spouses' friendship (hence marriage) with a distinctive value. This seems to be that a heterosexual couples' friendship is particularly valuable because their sexual activity is of the kind that can take place only between two complementary human beings. Thus, ultimately Finnis's claim (to which perhaps not enough of his critics have yet devoted sufficient attention) seems to be this: marriage is valuable inasmuch as it involves (a couple engaging in the kind of sexual activity which acquires a special character thanks to) 'the multiple and profound bodily, emotional, intellectual, and volitional complementarities with which that combination of factors we call human evolution has equipped us as men and women'.^[109]

This new justification (sex-between-two-complementary-beings) of the value of marital friendship is convenient for his position because, in contrast to the sex-open-to-children rationale, it provides a relatively clear watershed between same-sex couples on the one hand, and different-sex ones (be they fertile or sterile) on the other. However, the new justification proves too much, as it seems to apply also to heterosexual couples who have contracepted sex (which is anathema to Finnis's theory). And, indeed, it is hard to see why the sexual complementarity of spouses, if it is valuable in itself, should not endow with value also the marital friendship of spouses that do not have sex at all, or have it in what Finnis calls 'masturbatory' ways.^[110]

Perhaps one could avoid these problems by reformulating Finnis's theory so as to include heterosexual couples who do not have sex, or have contracepted sex, or have 'masturbatory' sex, among those whose friendship makes marriage valuable. Would this provide us with an adequate theory of the value of marriage?

The notion of sexual complementarity is not particularly sectarian: it is not specific to Roman Catholic thought, or indeed to religious thought (in fact, I do not think that many of the points Finnis makes and which I have reported here necessarily are). It is one which our popular culture endlessly feeds us with, one which 'authoritative' knowledges such as evolutionary psychology periodically revamp, and one that even discourses which are non-dominant (such as certain strands of feminist theory insisting on sexual difference)^[111] may unwittingly contribute to reinforcing. However, it is also one that queer theorists, among others, have shown to be hardly a neutral and objective description of human nature.^[112]

Finnis seems to suggest that differentiation at the level of so-called primary sexual characteristics (presumably this is the criterion he would adopt to differentiate the sexes) is ordinarily accompanied by multi-level essential complementarity. This, in turn, would endow marriage with its peculiar value: a man and a woman can complement each other in a way that is precluded to a same-sex couple. Although I agree with other critics of Finnis's that 'the biological complementariness of the sexes contains, in itself, no moral implications whatsoever’,^[113] I think it important to reject Finnis's claim for antecedent reasons: we should challenge the idea that sexual complementarity is out there at all.

Finnis's sexual complementarity seems to presume the existence of a gender specific continuity among the following levels: (1) sexual chromosomes, (2) primary sexual characteristics, (3) secondary sexual characteristics, (4) psychological sexual identity and (5) individual preferences and behaviour. In other words, Finnis's argument implies that men and women naturally differ at all these levels — that a continuity of male signification connotes each level for 'man', and that a continuity of female signification connotes each level for 'woman'. But the necessity of the link between male chromosomes and male primary sexual characteristics, or female chromosomes and female primary sexual characteristics (and indeed the very internal coherence of maleness or femaleness at level 1 or 2) is contradicted by the existence of intersex people. Similarly, the continuity between male (female) primary sexual characteristics and male (female) secondary sexual characteristics is ordinarily problematised simply by individual variability. Besides, transgender people are the embodiment of the possibility to escape the necessity of the link between male (female) sexual characteristics and male (female) psychological sexual identity; and transvestitism may graphically show the contingency of the connection between male (female) psychological sexual identity and preferences for extrinsic markers of maleness (femaleness) such as clothing.

Finnis could perhaps object that, although not everybody who is a man at level 2 is a man at all other levels, the general rule is one of consistency among and within the different levels. He might say that human beings, in this respect, tend to be well-integrated personal units, as opposed to the odd transgender person, whom he possibly views as out of order. One can reply that the failure of the linguistic economy 'man/woman' adequately to signify the subjectivity of sex/gender outsiders speaks not only to the ethical difficulties, but also to the inherent instability of the man/woman opposition.^[114]

It is precisely as an effect of the false hypothesis of the naturalness and fixity of such an opposition that the intersexual is constituted and is intelligible as an evolutionary aberration, the transgenderist's personality as non-integrated, and woman as complementary to man, with dubious consequences for the former.^[115] Even the last of Finnis's justifications of the value of (heterosexual) marriage, thus, would seem to have little to recommend it.

2 New Natural Law and marriage: George and Bradley

While the Civil Unions Act was being disallowed by the Howard government on this side of the Pacific, in the United States, at the instigation of George W Bush, the Senate was considering (but eventually rejected) a constitutional amendment to ban SSM — something that commentators have read as involving more than just coincidence.^[116] Among the principal authors of the amendment were constitutional scholars Robert George and Gerard Bradley.^[117] Like Finnis, George and Bradley are leading exponents of New Natural Law Theory. In their scholarly work, they have developed an argument on the value of heterosexual marriage proceeding along these lines:

(a) Marriage, as a two-in-one flesh communion of man and a woman, is a distinct intrinsic good realised through marital intercourse; the value of intrinsic goods cannot be demonstrated.^[118]

(b) Marital intercourse is essential to marriage. This insight is captured by legal rules that make it possible to annul marriage for inability to consummate.^[119]

(c) Penile-vaginal sex is specifically capable of actualising marriage because this intercourse, as the reproductive behaviour characteristic of the species, is biologically unitive, that is, makes man and woman become one organism with respect to the biological function of reproduction.^[120]

(d) Marital intercourse has its (non-extrinsic) point in the intrinsic good of marriage and thus is itself intrinsically good.^[121] Extrinsic ends such as pleasure may be pursued through sexual activity only if sex is primarily engaged in as an intrinsically good activity realising the intrinsic good of marriage. Otherwise, one compromises the good of the integrity of one's self by instrumentalising one's bodily self to (an end willed by) one's conscious self.^[122]

Point (a), on the intrinsic good of marriage, seems indistinguishable from Finnis's notion of the good of marriage intended as the spouses' amicitia. As we have seen, also the essential relevance of penile-vaginal sex to marriage, (point (b)) and the relevance of biological arguments (point (c)) seem to be part of Finnis's argument. The only genuine addition to Finnis's theory might seem to be point (d). This, however, does not make the point that marriage is valuable because it provides a context for sexual acts to be performed in a non-disintegrating way. Rather, it seems to state that because marriage is valuable, it provides spouses with a non-instrumental reason for performing marital intercourse. Accordingly it seemingly rests on point (a).

If George and Bradley's discussion is to be taken as a significant insight into the value and meaning of marriage, we need to understand the intrinsic good of marriage as intended by these authors (point (a)) as meaning something different from the spouses' amicitia in Finnis's sense. Otherwise their argument is disposed of at the same time as one rejects Finnis's.

In the 1995 article 'Marriage and the Liberal Imagination' George and Bradley are somewhat mysterious with regard to the issue of what the two-in-one flesh good of marriage means. It is possible, then, that in their view this good has a meaning alternative to Finnis's notion of the spouses' amicitia.^[123] As George and Bradley point out, '[i]n the end … one either understands that spousal genital intercourse has a special significance as instantiating a basic, noninstrumental value, or something blocks that understanding.'^[124] Let us assume, then, that marriage has an intrinsic value 'actualised' by marital intercourse which remains obscure to our understanding. We can still attempt to attain enlightenment by testing the claim in point (a) against the claims in points (b), (c), and (d), which are part of the complex argument on the intrinsic two-in-one flesh good.

First, note that point (b), inasmuch as it presents the norms on consummation as embodying the principle that marital intercourse is essential to marriage, is unconvincing. In most, if not all, legal systems, lack of consummation is, or has historically been, a ground for asking the annulment of marriage ex nunc (ie with prospective effect), but not to declare the marriage nonexistent ex tunc. Thus, the only insight that the legal rules on consummation may be said to embody is that marital intercourse is essential to marriage only for those individuals who want it to be for their particular marriage, and accordingly apply for annulment. However, the argument that marital sex is essential to marriage may be self-evident to those who find the goodness of marriage self-evident, irrespective of whether legal rules ubiquitously reflect this argument in a more or less felicitous way. So let us turn to point (c).

George and Bradley couch their arguments in the vocabulary of biology. In the domain of biology, however, their statements make no sense. Thus, to say that a mated pair reproducing is one 'organism' runs counter to the biological definition of organism.^[125] Similarly, 'explaining' coitus's supposedly 'biologically unitive' capacity by insisting on the notion of 'reproductive behaviour' is to say the least confusing. Reproductive behaviour is too complex a term, pointing as it does to 'the varied activities that lead to production and rearing of offspring … [and including] agonistic behaviour, courtship and other mate interactions, as well as maternal behaviour.'^[126] More crucially, in the domain of biology the supposedly 'biologically unitive' character of heterosexual intercourse seems, quite simply, not to be a category of discourse at all. Penetration or copulation may be, but, interestingly, even they do not seem to hold any particularly central role in biological discourse on reproduction. (As often as not, the dynamics of intercourse are no more than alluded to in passing in the texts concerned with illustrating the biological essentials of the reproductive function.)^[127]

In light of this, the New Natural Lawyers' choice to make their points by resorting to the parlance of biology appears at best misguided and at worst suspect. These points should be provided as an aid to 'unblock,' rather than further confound, the understanding of those who do not perceive as self-evident the intrinsic good of marriage as instantiated by heterosexual intercourse. This does not mean that the claims in point (c) are nonsensical, once divested of the unhelpful jargon of biology. In the domain of mythos, as opposed to that of logos, heterosexual intercourse may well be said to be unitive in some identifiable sense, and precisely in that of reconstituting a primordial mythical creature. It has been noted that

the very fact that Eve was made from Adam's body symbolizes the one flesh relationship that a husband and wife share. Certainly, in the sexual consummation of marriage, a husband and a wife become physically joined. The act allows them to again become one for a time … Men and women, despite their physical separation, seek what they have lost: complete unity.^[128]

The ways in and the extent to which mythos (whether religious or not) intervenes to shape, and should be allowed to contribute to, a legal system is an exceedingly complex matter.^[129] It has been suggested, however, that '[s]ince all justifications for the use of law rest at some point on intuitions about justice … it is difficult to see why religious assumptions should automatically be less relevant than other types of intuition'.^[130] Accordingly, it may be best to engage with such assumptions on their merits, for example discrediting them inasmuch as they require 'us to believe in what seems to be a fairy tale.'^[131] Some would probably think that George and Bradley's argument might find it difficult to avoid such a charge. Besides, even as far as myths go, there are more and less attractive ones. Thus, if one wants to account for two lovers' craving for complete unity, the myth narrated by Aristophanes in Plato's Symposium may well be, in terms of symbolism, more promising from a perspective of gender equality. This is because it configures the existence of a primordial organism composed of two halves neither of which is reduced to one of the other's ribs.^[132] This myth, however, happens to be incompatible precisely with the New Natural Lawyers' argument that only male-female sexual unions are morally worthy, and, in this sense, undermines their account of the value of marriage.

Finally, let us consider point (d). It seems to me that those people who, when they have sex for the sake of pleasure, experience a sense of disintegration do not at all feel that they have instrumentalised their body to an end willed by their conscious self. If anything, they feel that their conscious self has become subservient to their bodily pulses, ie that they are gratifying their body in contrast to what their conscious self wills, and super-ego commands. Here, however, it is the sense of self-alienation and disintegration that is problematic. It seems a prototypical instance of the kinds of consequences brought about by the idea of the

separation of consciousness from the flesh, [whereby] the subject is pitted against the object, which includes that aspect of the subject conceived empirically. Conceived in this way, the subject-object relationship necessarily gives rise to the master-slave dialectic … [which] is played out in our relations to nature … and against our internal 'nature' as physical, sexual beings.^[133]

In this sense, the problem is not with sexual acts performed exclusively for the sake of physical pleasure. Rather, disintegrity and self-alienation are the typical products of a twisted 'rationality whose mission is to drive into submission an essential part of what we are.'^[134] By contrast, when one wills sex for the mere sake of sexual pleasure, and experiences that wish as an end genuinely desired by oneself, one is hardly likely to feel any sense of self-disintegration at one's choice.

George and Bradley's claims about the instrumentalisation of one's body make sense only if one accepts their view that it is one's conscious self which wills pleasure and uses one's physical self to achieve that end. But precisely because we are whole as human beings this distinction is highly implausible. George and Bradley split the self into conscious and bodily. Then, they attribute the end of/desire for sexual gratification strictly to the former. Finally, they claim that the former uses the latter to achieve this end, and conclude that this disintegrates oneself. In reality they have disintegrated the wholeness of human beings at the outset, in order to sustain their disintegrity argument. In short, if we construct ourselves as disintegrated, it is possible either to experience our body as craving for something (pleasure) that our conscious self does not want; or to join George and Bradley in saying that our conscious self wants something (pleasure) and instrumentalises our body to achieve it. In both cases, however, it is disingenuous to claim that disintegration follows, as an effect, the performance of sex for the sake of pleasure.

George and Bradley's position is itself premised on the subject-object dialectic, which allows them to think of the conscious self as the subject and of the body as the object that the former instrumentalises. Then, George may well claim that 'to regard one's body as an extrinsic instrument is immoral because it involves … treating the body as if it were … a sub-personal object.'^[135] But he fails to see that he has been endorsing the view that the body is a sub-personal object all along, ever since he (implausibly) conceptualised sexual gratification as an end willed exclusively by one's conscious self, rather than a desire/need pertaining to oneself as a whole.^[136]

This explains why George and Bradley cannot account for the experiences of those who are capable of having (or at any rate do not object to) sex for the mere sake of pleasure, at the same time as leading a fulfilling, compassionate, non self-alienated life. Thus, point (d) is also unhelpful in shedding light on point (a) which, as it currently stands, remains as unconvincing a starting point for a theory of the value of heterosexual marriage as can be.

3 Conclusions

New Natural Law provides the most sophisticated argument to the effect that the value of marriage and its heterosexuality are inseparable. It is also a philosophical defence of marriage that claims to speak for, and can plausibly be regarded as articulating the views of, many 'non-philosophical people'.^[137] Among these, it would seem safe to include, for the reasons mentioned earlier, those responsible for the 2004 amendments to the Marriage Act, the disallowance of the Civil Unions Act, and any action that may be taken at Commonwealth level to render inoperative any State SSM or civil union legislation that could be passed in the future. Indeed, as we have seen, New Natural Law theorists in the United States have been actively involved in initiatives directed at making SSM a constitutional impossibility, and commentators have suggested that such overseas initiatives and the disallowance of the ACT Act were, if not part of a concerted effort, at least more than mere coincidence. However, a critical scrutiny of the defence of heterosexual marriage provided by New Natural Law theory suggests that it is no more than an ill-conceived attempt at rationalising its authors' homophobia.

D CONCLUSION

I have taken the disallowance of the ACT civil unions legislation as the starting point for discussing both the constitutional legal issues and the normative moral questions involved in the legal recognition of SSM or same-sex civil unions. With regard to the constitutional questions, I have argued that, assuming that the Commonwealth can use the marriage power to legislate on SSM or, more controversially, civil unions, the doctrine of 'manufactured inconsistency' may impose limits on its ability to render inoperative State SSM or civil unions legislation. In respect of the moral questions surrounding the recognition of SSM or civil unions, I have argued that persuasive reasons for defending marriage as a heterosexual institution have come neither from the Howard government, nor from New Natural Law — currently the leading philosophical theory of the value of heterosexual marriage.

This last conclusion, while critical, by implication, of the disallowance of the ACT legislation or the 2004 amendments to the Marriage Act, falls short of recommending that law reform for SSM (or civil union) legislation be actively pursued by lesbians and gay men.^[138] Indeed, I take the view that 'we have only reasons to care about inequalities in the distributions of goods and ills, that is of what is value and disvalue for independent reasons';^[139] but the only theory here examined of what makes marriage valuable was found to be wanting. This would leave unsupported the claim that the law should fully recognise same-sex relationships through the particular medium of marriage, if I wanted to make it in this context.

The literature on whether or not lesbians and gay men should seek the right to marry is abundant and mature; the early polarisation between marriage supporters (often of the gay male liberal brand) and marriage-sceptics (often lesbian feminist)^[140] has, at least in some cases, given way to contributions adopting a more nuanced approach.^[141] It was not my purpose in this particular piece to engage with that literature and to answer the question of whether or not we should pursue the right to marry. Rather, this article was written because I agree with Judith Butler:

Regardless of one's view on gay marriage, there is clearly a demand upon those who work in sexuality studies to respond to many of the most homophobic arguments that have been marshalled against gay marriage proposals.^[142]

POSTSCRIPT

In February 2007, the Commonwealth had the upper hand in the tug of war between the federal executive and the ACT legislature, with Attorney-General Philip Ruddock informing Territory authorities that, were the Civil Partnerships Bill 2006 (ACT) to become law, the federal Cabinet would once again exercise its power of disallowance.^[143]

^[*] Lecturer, Macquarie University. Many thanks to Jenni Millbank and the anonymous referees of the Federal Law Review for their helpful comments on early drafts, and to Alex Reilly for discussing some of the constitutional law issues dealt with in this article.

^[1] Civil Unions Act 2006 (ACT) ss 11 and 5(2).

^[2]'G-G to Disallow Civil Unions', ABC Online, 13 June 2006 <http://www.abc.net.au/news/newsitems/200606/s1661737.htm> at 1 July 2006. A rather more obscure point was made in the formal justifications for the disallowance, where it was stated, without elaboration, that the ACT Act 'attempted to circumvent the Marriage Act 1961 (Cth)': 'Explanatory Statement Issued by the Authority of the Attorney General for the Minister for Local Governments, Territories and Roads, Australian Capital Territory (Self-Government Act) 1988, Instrument of Disallowance', ComLaw <http://www.comlaw.gov.au/ComLaw/Legislation/LegislativeInstrument1.nsf/0/9B231E99E8803105CA25718C0017E065/$file/Amended+Civil+Unions+E+Statement.pdf> at 17 January 2007.

^[3] See Reg Graycar and Jenni Millbank, 'Following Marriage: Australia's Distinctive Road to Relationship Recognition' (2006) 17 (on file with author).

^[4] Farah Farouque, 'Why oh Why Can't I Have a Civil Union?', The Age (Melbourne), 10 June 2006 <http://www.theage.com.au/news/in-depth/why-oh-why-cant-I-have-a-civil union/2006/06/09/1149815316575.html> at 1 July 2006. This point was echoed in the formal justifications for the disallowance, where it was stated that '[t]he unique status of marriage is undermined by any measures that elevate other relationships to the same or similar level of public recognition and legal status': 'Explanatory Statement', above n 2.

^[5] 'We have no quarrel with the Territory's legislating in those areas in which it has responsibility, and we accept the decisions that they make supported by their electorate': 'G-G to Disallow Civil Unions' above n 2.

^[6] Farouque, above n 4.

^[7] Section 52(i) reads:

'The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to … [t]he seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes.'

Section 122 reads, in relevant part:

'The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth.'

^[8] Tony Blackshield and George Williams, Australian Constitutional Law and Theory (4^th ed, 2006) 269, referring to the view taken by the majority in Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) [1992] HCA 51; (1992) 177 CLR 248.

^[9] Legislative Instruments Act 2003 (Cth) s 42 in conjunction with s 5.

^[10] George Williams, interviewed in Farouque, above n 4. Indeed, this appears to be the first instance of the exercise of the Governor-General’s power of disallowance.

^[11] 'Prime Minister to Block Gay Unions', The Australian (Sydney), 7 June 2006, 1.

^[12] 'ACT to Fight to Keep Gay Law', Sydney Morning Herald (Sydney), 7 June 2006 <http://www.smh.com.au/news/national/act-to-fight-to-keep-gay-law/2006/06/07/1149359778513.html> at 1 July 2006; see also Saffron Howden, 'Gay Marriage Is in Hands of One Man', The Advertiser (Adelaide), 9 June 2006, 12.

^[13] See, eg, Annabel Stafford, 'Commonwealth Quashes ACT in Battle over Civil Unions Laws', The Age (Melbourne), 14 June 2006 <www.theage.com.au/news/national/commonwealth-quashes-act-in-battle-over-civil-unions/2006/06/13/1149964534754.html> at 1 July 2006.

^[14] Andrew Fraser, 'Humphries to Confront PM on Same-Sex Unions', The Canberra Times (Canberra), 13 June 2006, <http://canberra.yourguide.com.au/detail.asp?class= news & subclass=general & story_id=486962 & category=general & m=6 & y=2006> at 1 July 2006.

^[15] Stafford, above n 13.

^[16] 'G-G to Disallow Civil Unions Laws', above n 2.

^[17]Louise Yaxley, 'Bid to Save Civil Unions Fails', ABC Online, 15 June 2006 <http://www.abc.net.au/pm/content/2006/s1664191.htm> at 1 July 2006. Humphries was ACT Chief Minister when the Territory changed its legislation to include same-sex couples in inheritance laws in 1996.

^[18] Stafford, above n 13.

^[19] 'G-G to Disallow Civil Unions Laws', above n 2

^[20]'Senators Urged to Protect Civil Unions', ABC Online, 13 June 2006 <http://www.abc.net.au/news/newsitems/200606/s1662015.htm> at 1 July 12006. This point was also repeatedly made both by the Opposition and the majority during the Senate debate over the motion to disallow the Governor-General’s disallowance: 'Labor acknowledge[s] that it is this parliament—only the Commonwealth parliament—that can make laws about marriage': Commonwealth, Parliamentary Debates, Senate, 15 June 2006, 20 (Joseph William Ludwig). And: '[U]nder our Constitution, marriage is exclusively for this Commonwealth parliament to define and to regulate. States and territories cannot legislate as to marriage': Commonwealth, Parliamentary Debates, Senate, 15 June 2006, 37 (Penelope Ying Yen Wong). 'So even though the federal government advised them of their lack of standing with the Civil Unions': Commonwealth, Parliamentary Debates, Senate, 15 June 2006, 46 (Ronald Leslie Doyle Boswell).

^[21] Civil Unions Act 2006 (ACT) s 5(2).

^[22] Civil Unions Act 2006 (ACT) s 5(2).

^[23] Civil Unions Act 2006 (ACT) Sch 1.

^[24] Markus Mannheim, 'Civil Union Available to All Gays, Says Law', Canberra Times (Canberra), 11 May 2006 <http://canberra.yourguide.com.au/detail.asp?class= news & subclass=local & story_id=479413 & category=general%20news & m=5 & y=2006> at 1 July 2006. Eventually the provision of recognition of same-sex unions celebrated abroad was dropped altogether, apparently as a concession to the federal government and perhaps out of a sense that such provisions would be inoperative anyway by virtue of a perceived inconsistency with s 88EA of the Marriage Act 1961 (Cth), which provides that a same-sex union solemnised overseas 'must not be recognised as a marriage in Australia'. Since, however, overseas civil unions (or even same-sex marriages) would have been recognised in the ACT as 'civil unions', rather than 'marriages', arguably there would have been no inconsistency with s 88EA.

^[25] Civil Unions Act 2006 (ACT) Part 3.

^[26] Mannheim, above n 24.

^[27] Capital Duplicators Pty Ltd v Australian Capital Territory (No 1) [1992] HCA 51; (1992) 177 CLR 248, 279. However, if the view is taken that the Territory's legislative power is 'delegated' by the Commonwealth, then marriage would be within the ACT Legislative Assembly's competence even if the marriage power were an exclusive head of Commonwealth power.

^[28] Marriage having been central to the legal regulation of Western civil societies for so long, it is utterly inconceivable that it would even have crossed the framers' minds that the States, which after the Constitution came into effect were going to retain the plenary legislative powers they had enjoyed as Colonies, should be deprived of the power to make laws with respect to marriage.

^[29] Thus, the legal advice provided to the Australian Christian Lobby conflated the issue of inconsistency with that of legislative competence: 'It is absolutely clear that the Federal Government has determined in s 5(1) of the Marriage Act (Commonwealth) how a man and a woman may form a union that gives to them the privileges and responsibilities of marriage and that this is intended to cover the field in Australia on this subject. Insofar as the ACT Bill purports to create another method for attaining the privileges and responsibilities of marriage, it is clearly and obviously unconstitutional … In our view, the ACT has no such power to enact that a same sex couple, can enter into a relationship called a civil union that is declared by s5(2) … "to be treated for all purposes under territory law in the same way as marriage"' (emphasis added): Patrick Parkinson and Tom Altobelli, 'Advice re Civil Unions Bill 2006 (ACT)' (4 April 2006) Australian Christian Lobby [14]–[16] <http://www.acl.org.au/pdfs/load_pdf_public.pdf?pdf_id=521 & from=SEARCH> at 1 July 2006.

^[30] Section 5(1). On 15 June 2006 a Same-Sex Marriages Bill was introduced by Senators Natasha Stott Despoja and Andrew Bartlett in the Commonwealth Parliament to reverse the 2004 amendments to the Marriage Act and provide for same-sex marriage. No need to say that the Bill does not stand a chance of becoming law.

^[31] Same-Sex Marriage (Celebrant and Registration) Bill 2005 (Tas); Same-Sex Marriage (Dissolution and Annulment) Bill 2005 (Tas).

^[32] Same-Sex Marriage Bill 2005 (NSW); Same-Sex Marriage (Celebrant and Registration) Bill 2005 (NSW); Same-Sex Marriage (Dissolution and Annulment) Bill 2005 (NSW).

^[33] Same Sex Marriage 20 of 2005 (2005), Parliament of Tasmania Annual Register of Bills <http://www.parliament.tas.gov.au/bills/Bills2005/20_of_2005.htm> at 1 July 2005.

^[34] Same-Sex Marriage Bill 2006 (NSW); Same-Sex Marriage (Celebrant and Registration) Bill 2006 (NSW); Same-Sex Marriage (Dissolution and Annulment) Bill 2006 (NSW).

^[35] For a discussion of the meaning of 'marriage' for the purposes of the Constitution, see Alastair Nicholson, 'The Legal Regulation of Marriage' [2005] MelbULawRw 17; (2005) 29 Melbourne University Law Review 556, 562–4; Ian Ireland, 'The High Court and the Meaning of "Marriage" in Section 51(xxi) of the Constitution' (12 February 2002) Parliamentary Library <http://www.aph.gov.au/Library/Pubs/RN/2001-02/02rn17.htm> at 1 July 2006.

^[36] Professor Jeffrey Goldsworthy, for example, has provided a 'moderate originalist' argument to support the proposition that 'marriage' for the purposes of the marriage power extends to same-sex marriage: Jeffrey Goldsworthy, 'Interpreting the Constitution in its Second Century' [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677. As pointed out in Attorney-General for the Commonwealth v Kevin [2003] FamCA 94; (2003) 30 Fam LR 1, 23 [91] '[t]he High Court of Australia has never finally determined the meaning of marriage as used in the Constitution.' In the same case, the Full Court of the Family Court went on to refer (at 23–4 [91]–[99]) to a number of cases where different High Court judges made different pronouncements in relation to the meaning of 'marriage' for the purposes of the marriage power in the Constitution: Attorney-General (NSW) v Brewery Employees Union of NSW [1908] HCA 94; (1908) 6 CLR 469 (marriage power includes the power to 'prescribe what unions are to be regarded as marriages', per Higgins J, at 610); Attorney-General (Vic) v Commonwealth [1962] HCA 37; (1962) 107 CLR 529 ('marriage' under the Constitution is a bounded concept that Parliament cannot enlarge, per McTiernan J at 549; marriage power includes the power to make laws with respect to marriages different from Christian monogamous marriage, per Windeyer J at 576–7); Cormick v Salmon [1984] HCA 79; (1984) 156 CLR 170 (constitutional meaning of marriage is not up to Parliament, per Brennan J at 182); Re F; Ex parte F [1986] HCA 41; (1986) 161 CLR 376 ('marriage' as subject matter of the marriage power refers to the relationships binding husband and wife and the children of the marriage, per Brennan J at 399; Parliament cannot broaden the meaning of marriage adopted in the Constitution, per Mason and Deane JJ at 389); Fisher v Fisher [1986] HCA 61; (1986) 161 CLR 438 (nature of marriage as subject matter of Commonwealth legislative power ascertained by reference to societal customs, particularly if reflected in the common law, per Brennan J at 455–6); R v L [1991] HCA 48; (1991) 174 CLR 379 (accepted definition of marriage is voluntary union for life of one man and one woman to the exclusion of all others, per Brennan J at 392); Re Wakim; Ex parte McNally (1999) 198 CLR 511 (if 'marriage' were to be defined at the time the Constitution was introduced, the marriage power would not extend to legislating for same-sex couples, per McHugh J at 553).

^[37] See Brownlee v the Queen (2001) 207 CLR 278 314–27 (Kirby J).

^[38] Re Wakim, Ex parte McNally (1999) 198 CLR 511, 553 (McHugh J) (emphasis in original).

^[39] The importance of the element of solemnisation (as a declaration of reciprocal commitment in a ceremony officiated by a public authority) is captured in the following passage by Harvard historian Nancy Cott: '[R]esiliency of belief in legal marriage as the destination of a love match … begs for explanation, even when hyperbole about love seems to demand none. Love is exalted in our society — it is the food and drink of our imaginations …. Even with failed marriages staring them in the face, individuals still hope to beat the odds. The belief persists that a couple have achieved the ultimate reward, the happy ending, by adding the imprimatur of public authority and making their relationship formal.' Nancy F Cott, Public Vows: A History of Marriage and the Nation (2000) 225.

^[40] Dan Meagher has criticised the use of the connotation/denotation distinction to support the conclusion that the marriage power extends to same-sex marriage, arguing that a preferable way of reaching that conclusion 'involves recognising "marriage" as a constitutionalised legal term of art whose meaning can be informed by developments since federation in common law and statute.' Dan Meagher, 'The Times Are They A-Changing? — Can the Commonwealth Parliament Legislate for Same-Sex Marriages?' (2003) 17 Australian Journal of Family Law 134.

^[41] The two other kinds of inconsistency occur where the federal (State) Act prohibits something that the State (federal) Act commands; or where the federal (State) Act prohibits something that the State (federal) Act permits.
^[42] George Williams, Advice re Proposed Same-Sex Marriage Act (2005) Tasmania Gay and Lesbian Rights Group <http://tglrg.org/more/82_0_1_0_M3/> at 19 January 2007. See also Kristen Walker, Opinion on Constitutional Validity of Tasmanian Same-Sex Marriage Bill Tasmania Gay and Lesbian Rights Group <http://tglrg.org/more/116_0_1_0_M3/> at 19 January 2007.

^[43] See below nn 54–5 and accompanying text.

^[44] For the sake of clarity, note that from the conclusion that the Marriage Act (which essentially regulates entry into and validity of marriage) evinces an intention to cover the field of heterosexual marriage, it does not follow that in general federal law that deals with marriage (by attaching certain legal consequences to it) evinces such an intention. Indeed, as far as such federal law is concerned, the marriage power can be compared to the 'aliens power', in respect of which Evatt J argued that it would be inconceivable for a Commonwealth law to cover the field because aliens are 'a class of persons who may enter into an innumerable number of relations with the States and their citizens': Stock Motor Ploughs Ltd v Forsyth [1932] HCA 40; (1932) 48 CLR 128, 148. Similarly, at least for as long as marriage exists as a distinctive institution in our culture, it would be surprising if States had no role to play in regulating and constituting it by determining what legal consequences flow from it. This is because married people 'may enter into an innumerable number of relations with the States and their citizens' in their capacity as spouses. To this extent, a federal provision declaring the Commonwealth's intention of covering the field of (heterosexual) marriage with regard to all the legal consequences that attach to it would be 'manufacturing inconsistency' and be of no effect.

^[45] See above n 41.

^[46] West v Commissioner of Taxation (NSW) [1937] HCA 26; (1937) 56 CLR 657, 707 (Evatt J). This doctrine, although developed in early constitutional jurisprudence, has never been clearly overruled.

^[47] NSW v Commonwealth [2006] HCA 52; (2006) 231 ALR 1.

^[48] Wenn v A-G (Vic) [1948] HCA 13; (1948) 77 CLR 84.

^[49] NSW v Commonwealth [2006] HCA 52; (2006) 231 ALR 1, 99.

^[50] Ibid 98–100.

^[51] Wenn v A-G (Vic) [1948] HCA 13; (1948) 77 CLR 84, 119 (Dixon J).

^[52] For the same reasons based on the doctrine of manufactured inconsistency, even if Williams and Walker were incorrect and the Marriage Act as amended in 2004 did purport to cover the field of marriage generally rather than just heterosexual marriage, it would not be a foregone conclusion that State SSM legislation would be ousted as a result.

^[53] Cf Re Mark [2003] FamCA 822; (2003) 31 Fam LR 162 (Brown J).

^[54] Here, however, we come across the same difficulty as we encountered when discussing a hypothetical attempt by the Commonwealth to cover the field with respect to the legal consequences attaching to marriage: even if a federal legal regime of the kind described were introduced, it would be increasingly unlikely that States laws would be found by the Courts to have no role at all in regulating SSM. This is because the more same-sex marriages become culturally (even if not legally) mainstream, the more likely will it be that people will 'enter into an innumerable number of relations with the States and their citizens' in their capacity as same-sex spouses.

^[55] Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479, 492.

^[56] See above n 4.

^[57] Jurisdictions introducing civil unions regimes in the last few years include Connecticut, Quebec, Vermont, California and New Zealand.

^[58] Fraser, above n 14. See also Commonwealth, Parliamentary Debates, Senate, 15 June 2006, 13–14 (Joseph William Ludwig).

^[59] 'A civil union is different to a marriage but is to be treated for all purposes under territory law in the same way as a marriage': Civil Unions Act 2006 (ACT) s 5(2). The original version of s 5(2) of the Bill did not contain the statement that civil unions are not marriages. The Bill was amended to assuage (albeit unsuccessfully) the anxieties of the Federal Government. The new Civil Partnership Bill 2006 has dropped all references to marriage (and indeed 'unions'): see above n 3 and accompanying text.

^[60] See eg Stafford, above n 13; Farouque, above n 4. Millbank and Graycar argue that the Commonwealth targeted the civil unions legislation in order 'to repudiate any claim to sameness' between heterosexual and same-sex couples; their analysis is to the effect that the reason why civil unions could be perceived to be making that claim was the fact that, unlike same-sex de facto relationships, they carried with them the symbolism involved in solemnisation: Graycar and Millbank, above n 3, 16–17.

^[61] Farouque, above n 4; Howden, above n 12.

^[62]Kerry Nettle, Government Fails to Explain Anti-Civil Union Move (2006) Australians Greens <http://greens.org.au/mediacentre/mediareleases/senatornettle/150606a> at 6 July 2006. The lack of adequate justification for the Governor-General’s disallowance was repeatedly criticised during the Senate debate on the motion to disallow the Governor-General’s measure: see Commonwealth, Parliamentary Debates, Senate, 15 June 2006, 17 (Bob Brown); Commonwealth, Parliamentary Debates, Senate, 15 June 2006, 20, 22 (Kim John Carr); Commonwealth, Parliamentary Debates, Senate, 15 June 2006, 32 (Rachel Siewert).

^[63] See above n 4 and accompanying text.

^[64] 'Howard drew an analogy with school days to express his opposition to the concept of civil unions … "The fundamental difficulty I have with the ACT legislation is the clause which says that a civil union is different from marriage but has the same entitlements," the Prime Minister said. "That is the equivalent of saying to somebody who's passed the HSC and wants to get into a particular course … [']well you haven't got the requisite tertiary score but we are going to let you into the course anyway[']"': Farouque, above n 4. The lack of adequate justification for the disallowance was widely read as underscoring that opportunistic considerations of political expediency, rather than principled reasons, motivated the Government. One senator spoke of 'base political stratagems by a government that is seeking to appeal to a very tiny minority opinion in a number of key electorates.' Commonwealth, Parliamentary Debates, Senate, 15 June 2006, 20 (Kim John Carr).

^[65] Andrew Koppelman, 'Is Marriage Inherently Heterosexual?' (1997) 42 American Journal of Jurisprudence 51, 52; Mary Coombs, 'Sexual Dis-Orientation: Transgendered People and Same-Sex Marriage' (1998) 8 UCLA Women's Law Journal 219, 229.

^[66] John Finnis, 'Law, Morality, and "Sexual Orientation"' (1994) 69 Notre Dame Law Review 1049, 1063.

^[67] Commonwealth, Parliamentary Debates, Senate, 15 June 2006, 26.

^[68] John Howard has used the argument that children need a mother and a father to justify the proposal to allow States to discriminate against lesbians and single heterosexual women in the provision of reproductive technology services (Sex Discrimination Amendment Bill (No 1) 2000 (Cth)); and he has used arguments based on essentialist notions of differences between the sexes in order to justify his proposal to permit positive discrimination in favour of male teachers, out of a concern that male schoolchildren were lacking male role models (Sex Discrimination Amendment (Teaching Profession) Bill 2004 (Cth)).

^[69] '[Finnis's] service has included the Linacre Centre for Health Care Ethics (governor since 1981), the Catholic Bishops' Joint Committee on Bioethical Issues (1981–88), the International Theological Commission (1986–92), the Pontifical Council for Justice and Peace (1990–95), and the Pontifical Academy Pro Vita (2001–present)': John Finnis, University of Notre Dame Faculty Profile <http://law.nd.edu/faculty/facultypages/finnis.html> at 30 October 2006.

^[70] For an introductory overview on natural law, including New Natural Law theory, see, eg, Denise Meyerson, Essential Jurisprudence (2006) 33–41.

^[71] Mark Strasser, 'Natural Law and Same-Sex Marriage' (1998) 48 DePaul Law Review 51, 69–72; Koppelamn, above n 65, 57–8.

^[72] John Finnis, Natural Law and Natural Rights (1980) 85–90.

^[73] Ibid.

^[74] John Finnis, 'The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and Historical Perspectives' (1997) 42 American Journal of Jurisprudence 97.

^[75] Ibid 118.

^[76] See, eg, Carlos A Ball, 'Moral Foundations for a Discourse on Same-sex Marriage: Looking beyond Political Liberalism' (1997) 85 Georgetown Law Journal 1871, 1909–1919.

^[77] Nicholas Bamforth, 'Same-Sex Partnerships and Arguments of Justice' in Robert Wintemute and Mads Andenaes (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law (2001) 41–53.

^[78] Ibid 50–3. Others agree with this reading: Koppelman, above n 65, 93; Ball, above n 76, 1912, 1918.

^[79] Strasser, above n 71, 79.

^[80] Ball, above n 76, 1917–1918.

^[81] Koppelman, above n 65, 95.

^[82] See, eg, Stephen Macedo, 'Homosexuality and the Conservative Mind' (1995) 84 Georgetown Law Journal 261, 277, 286–7; Koppelman, above n 65, 65 (making problematic assumptions about the superiority of marriage); Strasser, above n 71, 79 (making problematic assumptions about marriage and children).

^[83] Bamforth pointed out that Finnis seems to be arguing, simultaneously, that marriage involves two basic goods (children and friendship) and that marriage is a single basic good: Bamforth, above n 77, 47.

^[84] Finnis, 'The Good of Marriage', above n 74, 129. Note the rhetorical devices at work in this statement: the expression 'of the couple' can be intended not only as a subjective but also as an objective genitive — and in the latter sense it is clearly a way of pre-installing the marital couple as foundational, a way of presuming the married heterosexual couple as the unity which needs reproduction.

^[85] Strasser, above n 71, 79.

^[86] Much criticism of Finnis is directed at showing that, in contrast to his contentions, same-sex intercourse, as a sub-species of sexual acts which are not open to procreation, is not inherently wrong or immoral. Thus commentators tend to focus on Finnis's claim about the links between marriage and the generation of children, rather than between marriage and child-rearing. See, eg, Ball, above n 76, 1914; Macedo, above n 82, 278–281.

^[87] The implausibility of this claim is immediately apparent at least in an historical perspective, given the legal and social acceptability of such practices as child beating and marital rape in the past. Thanks to Jenni Millbank for this point.

^[88] Philip Cowan and Caroline Pape Cowan, 'New Families: Modern Couples as New Pioneers' in Mary Ann Mason, Arlene Skolnick and Stephen D Sugarman (eds), All Our Families (1998) 169, 173.

^[89] Elizabeth Frazer, 'Unpicking Political Communitarianism — A Critique of the Communitarian Family' in Gillian Jagger and Carol Wright (eds), Changing Family Values (1999) 150, 159–160.

^[90] Nicholas Bamforth, Sexuality, Morals and Justice: A Theory of Lesbian and Gay Rights Law (1997) 165.

^[91] Finnis, 'The Good of Marriage', above n 74, 108.

^[92] Finnis 'Law, Morality, and "Sexual Orientation"', above n 66, 1066 (arguing that 'the common good of friends who are not and cannot be married …. has nothing to do with their having children by each other').

^[93] Finnis, 'The Good of Marriage', above n 74, 131.

^[94] Cf also David O Coolidge, 'Same-Sex Marriage? Baehr v Miike and the Meaning of Marriage' (1997) 38 South Texas Law Review 1, 51: stating that '[f]rom a social pluralist point of view, [note that the 'social pluralist' tradition here is taken to include natural law theory] marriage can be defined as a total sexual community. The institution of marriage is the social structure which embodies and governs that community.'

^[95] Finnis, 'The Good of Marriage', above n 69, 109 (clarifying, approvingly, the position of Saint Thomas Aquinas).

^[96] Ibid 109–110.

^[97] Finnis 'Law, Morality, and "Sexual Orientation"', above n 66, 1065.

^[98] Ibid 1068.

^[99] Michel Foucault, The Care of the Self — The History of Sexuality vol 3 (1990) 207 (elucidating Plutarch's position on the relationship between sexual intercourse and conjugal friendship).

^[100] Finnis, 'The Good of Marriage', above n 74, 125–6, 132; Finnis 'Law, Morality, and 'Sexual Orientation'', above n 66, 1064.

^[101] See, eg, Finnis 'Law, Morality, and "Sexual Orientation"', above n 66, 1069, last sentence in the first full paragraph.

^[102] Finnis, 'The Good of Marriage', above n 74, 132.

^[103] Ibid 109.

^[104] Ibid 132; Finnis 'Law, Morality, and "Sexual Orientation"', above n 66, 1067–8.

^[105] Finnis 'Law, Morality, and "Sexual Orientation"', above n 66, 1068.

^[106] Finnis, 'The Good of Marriage', above n 74, 128.

^[107] Ibid 119.

^[108] Ibid 132 (emphasis added). The same point is made earlier in Finnis's text, at page 127.

^[109] Ibid 132. When they have discussed it, it seems to me that Finnis's critics have tended to refer to his notion of the complementarity of the sexes merely as the ability of a man and woman physically to join their sexual organs. See, eg, Macedo, above n 82, 278; Koppelman above n 65, 63–4, 92–4; Paul J Weithman, 'Natural Law, Morality and Sexual Complementarity' in David M Estlund and Martha C Nussbaum (eds), Sex, Preference, and Family (1997) 227, 238. But, Finnis seems to be talking of much more than that, at least in his 1997 article (which chronologically follows some of his critics' pieces).

^[110] Finnis 'Law, Morality, and "Sexual Orientation" ', above n 66, 1068.

^[111] For an introduction to so-called 'difference feminism' see eg Meyerson, above n 70, 181–2.

^[112] See, eg, Terrell Carver, 'Sexual Citizenship — Gendered and De-gendered Narratives' in Terrell Carver and Veronique Mottier (eds), Politics of Sexuality: Identity, Gender, Citizenship (1998) 13, 16–20; and generally Judith Butler, Bodies That Matter: On the Discursive Limits of 'Sex' (1993).

^[113] Koppelman, above n 65, footnote 163.

^[114] Note, in the passage reported in the previous paragraph, Finnis's generic reference to 'evolution', seemingly intended as a way of re-installing the 'naturalness' of the opposition.

^[115] Cf Carol Smart, Feminism and the Power of Law (1989) 75. Note also how the ideology of complementarity translates linguistically into Finnis's text. The last lines of his 1997 piece remind us that marriage, understood in the way defended in that article, 'can be intelligently and reasonably chosen by a man together with a woman': Finnis, 'The Good of Marriage', above n 74, 134. In terms of grammatical relations, here, both the man and the woman happen to figure, indeed, as complements. However, they complement the predicate (ie the choice which, in originating the marital communion, is also its first expression) in a very asymmetrical way. In terms of semantic roles, the man is the logical subject of the clause. On the contrary, the woman's role is to function as a comitative case: an 'accompaniment' — no more, no less — to man's agency.

^[116] Rodney Croome, News and Comment (31 May 2006, June 5 2006, June 15 2006) <http://www.rodneycroome.id.au/weblog?id=C0_70_1> at 30 October 2006.

^[117]The Truth About the Anti-Family Federal Marriage Amendment, Log Cabin Republicans <http://online.logcabin.org/issues/fma-talking-points.html> at 20 July 2006. George and Bradley also founded an interfaith coalition to support the amendment and oppose same-sex marriage. For the record, leading communitarian Mary Ann Glendon was also one of the coalition's co-founders: Julia Duin, Believers Push for Marriage Measure, The Washington Times <http://www.washingtontimes.com/national/20060604 – 124754 – 2682r.htm> at 20 July 2006.

^[118] Robert P George and Gerard V Bradley, 'Marriage and the Liberal Imagination' (1995) 84 Georgetown Law Journal 301, 303–4, 307–310.

^[119] Ibid 307–9.

^[120] Ibid 311–313.

^[121] Ibid 305.

^[122] Ibid 313–318. For a feminist critique of George and Bradley's argument see Mary Becker, 'Women, Morality, and Sexual Orientation' (1998) 8 UCLA Women's Law Journal 165, 185–191; Chai R Feldblum, 'Gay Is Good: The Moral Case for Marriage Equality and More' (2005) 17 Yale Journal of Law and Feminism 139, 161–4 (arguing that George and Bradley's defence of heterosexual marriage and intercourse fails to take into account female perspectives).

^[123] However, it should be mentioned that George, in a later piece co-authored by Patrick Lee, has expanded on the good of marriage in terms which seem hardly distinguishable from Finnis's: Patrick Lee and Robert P George, 'What Sex Can Be: Self-Alienation, Illusion, or One-Flesh Union' (1997) 42 American Journal of Jurisprudence 135, 143.

^[124] George and Bradley, above n 118, 309.

^[125] See, eg, Rauno Tirri et al, Elsevier's Dictionary of Biology (1998) 490; Karen Arms and Pamela S Camp, Biology (1992) 932.

^[126] Peter MB Walker (ed), Chambers Biology Dictionary (1989) 252.

^[127] See, eg, James L Gould and William T Keeton, Biological Science (1996) 974; Renato Dulbecco (ed), Encyclopedia of Human Biology (2^nd ed, 1997) vol 7, 520.

^[128] Michele Brewer Brooks, 'The Biblical View of Marriage: Covenant Relationship' (1999-2000) 12 Regent University Law Review 125, 132.

^[129] Cf Drucilla Cornell, The Philosophy of the Limit (1992) 3–8.

^[130] Nicholas Bamforth, Sexuality, Morals and Justice: A Theory of Lesbian and Gay Rights Law (1997) 169.

^[131] Ibid.

^[132] Plato, The Symposium (Avi Sharon trans, 1998), 36–40

^[133] Cornell, above n 129, 14.

^[134] Ibid.

^[135] Lee and George, above n 123, 155.

^[136] See also Gary Chartier, 'Natural Law, Same-Sex Marriage, and the Politics of Virtue' (2001) 48 UCLA Law Review 1593, 1606–8.

^[137] See above, n 66.

^[138] Same-sex couples have obtained a considerable degree of recognition under Australian family law through the distinctive mechanism of de facto status: see generally Jenni Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law — Part 1: Couples' [2006] FedLawRw 1; (2006) 34 Federal Law Review 1.

^[139] Joseph Raz, The Morality of Freedom (1986) 235.

^[140] The classical piece in the pro-marriage camp is Tom Stoddard, 'Why Gay People Should Seek the Right to Marry' (1989) OUT/LOOK National Gay and Lesbian Quarterly 9 reprinted in William B Rubenstein (ed) Cases and Materials on Sexual Orientation and the Law (2^nd ed, 1997) 716; see also William N Eskridge, Jr, 'A History of Same-Sex Marriage' (1993) 79 Virginia Law Review 1419. In the anti-marriage camp, see, eg, Paula L Ettelbrick, 'Since When is Marriage a Path to Liberation?' (1989) OUT/LOOK National Gay and Lesbian Quarterly 9 reprinted in William B Rubenstein (ed) Cases and Materials on Sexual Orientation and the Law (2^nd ed, 1997) 721; Paula L Ettelbrick, 'Wedlock Alert: A Comment on Lesbian and Gay Family Recognition' (1996) 5 Journal of Law and Policy 107; Nancy D Polikoff, 'We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not "Dismantle the Legal Structure of Gender in Every Marriage"' (1993) 79 Virginia Law Review 1535; Nancy D Polikoff, 'Why Lesbians and Gay Men Should Read Martha Fineman' (2000) 8 American University Journal of Gender, Social Policy, and the Law 167; Sheila R Foster, 'The Symbolism of Rights and the Cost of Symbolism: Some Thoughts on the Campaign for Same-Sex Marriage' (1998) 7 Temple Political and Civil Rights Law Review 319. Recently, Dworkin has added his authority to the argument in favour of gay marriage: Ronald Dworkin, 'Three Questions for America' (2006) 53 The New York Review of Books 24.

^[141] See, eg, Davina Cooper, 'Like Counting Stars?: Re-Structuring Equality and the Socio-Legal Space of Same-Sex Marriage' in Wintemute and Andenaes (eds), above n 77, 79.

^[142] Judith Butler, 'Is Kinship Always Already Heterosexual?' (2002) 13 Differences 14, 21.

^[143] Philip Ruddock, ‘ACT Civil Partnerships Bill Does Not Remove Concerns’ (Press Release, 6 February 2007).

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Federal Law Review

Zanghellini, Aleardo --- "Marriage and Civil Unions: Legal and Moral Questions" [2007] FedLawRw 10; (2007) 35(2) Federal Law Review 263

MARRIAGE AND CIVIL UNIONS: LEGAL AND MORAL QUESTIONS

A INTRODUCTION