Same-Sex Marriage Highlights Difference in Australian and United State Constitutional Arrangements

By Craig Over

On June 6 the Supreme Court of the United States of America ruled in Obergefell v Hodges by a majority of 5:4 that a denial of marriage recognition of gays and lesbians was a denial of a fundamental right and thus in contravention of the Fourteenth Amendment of the United States Constitution. Delivered by Justice Kennedy, the majority judgement is a triumph of rationality and lucidity in its respect for individual autonomy (paying homage to principles of liberalism) and, arguably more importantly, the inherent dignity of the bond between gays and lesbians in committed relationships, worthy of the status which marriage confers.

The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry.

The Court found no logical reason why the marriage of couples of the same sex would erode these four fundamental justifications for marriage. Indeed, in considering arguments against same-sex marriage, advanced by the respondents, the Court found only internal incoherence.

Their Honours posited four primary justifications for this conclusion. Firstly, ‘the right to personal choice regarding marriage is inherent in the concept of individual autonomy.’ Secondly, ‘the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.’ Thirdly, marriage provides families with permanency and stability in the raising of children. Finally, that marriage is a keystone of the American social order and, in respect of this principle, gay and lesbian couples are no different to opposite-sex couples. The Court went on to say:

As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfilment in its highest meaning.

In important respects, this principle is entirely unrelated to notions of liberalism and the practical value that is carried with it. It is a recognition of the full humanity of gays and lesbians, rather ‘than merely a denial of their civil rights.’ Indeed as the philosopher Riamond Gaita tells us:

to conceive of the wrong done to gays when they’re denied marriage simply as unjust discrimination is to conceive it in the wrong dimension; on the wrong plane, as it were. It only touches the surface of the deep insult to them.

From a comparative perspective, astute readers of Australian case law and United States judgements of the kind considered here will note the conspicuous absence of any significant textual interpretive exercise in the judgement. Indeed, the Supreme Court paid closer attention to, and drew persuasive parallels with, interracial marriage, rather than any nuanced consideration of the text of the Fourteenth Amendment.

This absence highlights one of the essential differences between our constitutional arrangements and that of the United States, namely, Australia is without any enumerated bill of rights. While the United States Constitutional framers understood that there were some freedoms so fundamental to the dignity and flourishing of the individual, the framers of the Australian Constitution relegated that determination to the political process. The existence of strong parliamentary process in Australia is the primary justification for the absence of any constitutionally entrenched rights.

I suggest this kind of process can only function justly when a nation’s polity is homogeneous. As society progresses to the point where it recognises the full complexity and diversity of those who reside within its bounds, leaving fundamental questions concerning individual rights to the determination of ordinary legislative process becomes inappropriate. To illuminate this point a little more clearly I will take one example that is distinct but, in important respects, related to the present subject of gay and lesbian marriage. Recently there have been calls to place anti-racial discrimination entirely outside the legislative process by enshrining it in the Constitution. This is a worthy cause. However, to narrow the national discussion to racial discrimination, it seems, gives rise to a missed opportunity for serious discussion on an Australian bill of rights.

Thus lies the paradox of a governmental system which places reliance almost entirely on a democratic process; it leaves open a space by which fundamental questions may be determined by a political process susceptible to a degradation of moral seriousness or lucidity; a failure of rational judgement within the polity. This suggestion, however, should not be taken as a diminution of democratic values, rather democracy, as a means of social organisation, should exist within a reasoned framework of constitutional constraints free from political interference. If anything, the decision of the Supreme Court of the United States in Obergefell v Hodges should demonstrate to Australia that, like racial discrimination, marriage equality, as well as the existence of many other individual rights, is too important a question to be determined by a legislature answerable to the electorate and subject to variance.

Suggested Citation

Craig Over, ‘Same-Sex Marriage Highlights Difference in Australian and United State Constitutional Arrangements’, Law and Justice, 13 July 2015 (La Trobe Law School Blog,

Marc Trabsky