Abstract
Australia is currently confronting the issue of whether to legalise same-sex marriage. Thus far debate has been conducted with little reference to human rights theory. This article draws on the theories of John Rawls and John Stuart Mill and analyses whether, by confining the right to marry to heterosexual couples, the law infringes the right to privacy and, conversely, whether the legalisation of same-sex marriage would infringe religious rights of those who are unwilling to provide goods and services to same-sex couples. In so doing, the article adopts a comparative approach, drawing on case law from the United States. The article examines the way in which political debate on the issue has been conducted by the major parties in Australia, and concludes that both the Liberal-National coalition and the Labor party have been motivated by a desire to appease the religious right within their ranks, at the expense of human rights principles.
Highlights
How Australia addresses the issue of same-sex marriage raises fundamental questions relating to the values underpinning the law
This article draws on the theories of John Rawls and John Stuart Mill and analyses whether, by confining the right to marry to heterosexual couples, the law infringes the right to privacy and, whether the legalisation of same-sex marriage would infringe religious rights of those who are unwilling to provide goods and services to same-sex couples
In addressing the issue from a Rawlsian perspective, the question we need to ask is whether the exclusion of same-sex couples from the opportunity to enter into marriage infringes a right which would be recognised as requiring protection by rational participants formulating the rules for a future society
Summary
How Australia addresses the issue of same-sex marriage raises fundamental questions relating to the values underpinning the law. A striking feature of the same-sex marriage debate has been the lack of focus on rights theory. This article seeks to redress this imbalance by analysing the same-sex marriage issue from a human rights perspective, in recognition of the fact that the ethical quality of law is determined by the values which underpin it and that its text is merely the method by which those values are given effect. Part 4 discusses the question of whether the current prohibition on same-sex marriage constitutes an infringement of fundamental rights, taking a comparative approach through a discussion of decisions by the United States Supreme Court on the right to privacy. Part 7 concludes with a discussion of the likelihood that same-sex marriage will be legalised
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