RECOGNITION OF SAME-SEX MARRIAGE - TIME FOR CHANGE?

The institution of marriage in modern Western society is generally  regarded as extending only to male-female relationships, although most marriage statutes use gender-neutral language.  Same-sex relationships, regardless of their duration, are not legally recognised in most countries and, as a result, homosexual partners are denied many of the legal and economic privileges automatically bestowed by marital status.  These include employment benefits, the ability to file joint tax returns and -- perhaps most importantly since the advent of AIDS -- health benefits and rights arising on the death of a partner, including intestate inheritance.  In Australia many of these benefits are now available to heterosexual de facto partners, but continue to be unavailable to same-sex partners.

Same-sex partners may be able to procure some of these benefits using other methods, such as trusts, durable powers of attorney and wills.  However, these often require legal assistance and, therefore, may not be available to individuals with lower incomes.  Also, they are often inadequate.  Wills made by homosexuals are often challenged by blood relatives who are unaware or unaccepting of the testator's same-sex partner.  Individuals in an established relationship should not be deprived of these benefits simply because they are of the same gender.

Since the Stonewall uprising of 1969[1] gay men and lesbians have become increasingly vocal in the pursuit of legal recognition of their relationships.  Although there have been no Australian cases disputing the legitimacy of the current heterosexist limitations of marriage, there have been a number of unsuccessful attempts in the United States.[2]

Earlier this year, the situation in the United States appeared to be on the verge of change.  The First Circuit Court, City and Council of Honolulu, was expected to deliver a summary judgment in favour of equal marriage rights for same-sex couples in *Baehr v Lewin,*[3] a dispute between three homosexual couples and the State of Hawaii, as represented by the Director of the Department of Health.[4]  The case was -- and apparently is still -- being retried, having been remanded by the Hawaii Supreme Court, which informed the State it must establish a "compelling interest"[5] for the denial of equal marriage rights to homosexual partners.

If successful, the action will have far-reaching consequences, as each US State is required to recognise marriages performed in another State.[6]  A favourable decision will result in Hawaii becoming more advanced than any other jurisdiction in the world, as it will give homosexuals *full* marriage rights.  Not even Denmark and Norway -- which currently recognise homosexual relationships in the form of registered partnerships -- go this far, as registered partners cannot marry in a church or adopt children. (This will be briefly discussed later). 

However, hopes for a favourable outcome seem to have fallen slightly, with the enactment by the Hawaiian State Legislature of H.B. (House Bill) 2312, which restricts the availability of marriage licences to male-female couples.  This will be discussed in more depth later. 

Although there are several differences between the laws of the United States and those of Australia, such that any real comparison between the two countries is unhelpful, it is nevertheless interesting to examine the policy issues (as distinct from the constitutional issues) raised in *Baehr,* as many of these are common to debates relating to same-sex marriages the world over.

On 1 May 1991 a  civil suit was brought by three homosexual couples, seeking: 1.  A declaration that the Hawaiian marriage statute was unconstitutional in that it denied marriage licenses to the plaintiff applicants on the sole ground that they were of the same sex.[7] 2.  A prohibition on the future denial of marriage licences on this sole basis.[8]

Issues of privacy and denial of equal protection were raised in the course of the plaintiffs' argument.

The State admitted that the marriage licence applications were refused solely on the basis that the couples were of the same gender, but denied the allegations that rights had been violated and that the marriage statute was discriminatory. 

The Court rejected the plaintiffs' privacy argument, stating that there was no fundamental (State) constitutional right to same-sex marriage arising from the right of privacy.  This paper will not address the issue of the State constitutional right to privacy, as it is not directly relevant to Australian law.  However, the plaintiffs did succeed on the ground of denial of equal protection.

The majority, led by Associate Justice Steven Levinson, held that the marriage statute discriminated on the basis of gender and violated the right to equal protection as it allowed marriages only between males and females.  The refusal to grant a marriage licence to same-sex couples was viewed as a denial of "access to the marital status and [its] concomitant rights and benefits."[9]

Judge Walter Heen, who delivered the dissenting opinion, asserted that there was no sexual discrimination because the statute applied equally to males and females.  The majority disagreed, drawing a direct analogy between the instant case and that of *Loving v Virginia*.[10]  *Loving* concerned an African-American woman and a Caucasian male who, having married in the District of Columbia, were arrested by officials in their home state of Virginia for violating laws prohibiting interracial marriages.  The State argued that there was no discrimination as the laws applied equally to blacks and whites but the Supreme Court struck down the statute as discriminatory.  The Court was not persuaded by the State's 'equal application' argument.  The majority in *Baehr* adopted the court's decision in *Loving,* extending the rationale to include discrimination on the basis of gender.

Interestingly, the plaintiffs did not plead discrimination on the basis of sexual orientation.  Nor did the majority judgment  address the issue in any detail.  Justice Levinson even specified that his decision was based on the plaintiffs' gender, not their sexuality, stating that same-sex partners had no fundamental right to marry.[11]

Earlier attempts to argue discrimination on the ground of sexual orientation have been unsuccessful.[12]  However, it is submitted that the line of reasoning adopted in *Loving* is equally applicable to an argument of discrimination on the basis of sexuality -- the marriage statute is facially neutral, technically applying to both homosexuals and heterosexuals, but nevertheless indirectly discriminates against homosexuals.

The failure to raise discrimination on the basis of sexual orientation may be attributable to another factor:  under US constitutional law, a successful allegation of gender discrimination will impose a substantial burden of justification on the party alleged to have violated the anti-discrimination legislation.  However, an allegation of discrimination on the basis of sexual orientation will not attract this high degree of scrutiny.  This may be the distinguishing factor between *Baehr* and the earlier (unsuccessful) same-sex marriage cases.

The judgment in the official reporter did not specifically address other issues relating to this area, including the States' additional arguments against permitting same-sex marriage, other than to label as "circular and unpersuasive"[13] the proposition that the very nature of marriage requires that it be a union between a man and a woman.  These issues will now be examined.

The arguments advanced by the State in *Baehr,* like those which have been raised by opponents of same-sex marriages in earlier cases, can be grouped into several broad categories:  - the historical/traditional argument - the procreation argument - the protection of children - the family/society argument - the pragmatic argument

 1.  The Historical/Traditional Argument The basis of this argument is that the nature of the marriage relationship, and past judicial interpretation, dictate that marriage be a union between a man and a woman.   Essentially, what is being proposed is that, as it has historically been viewed as a heterosexual union, same-sex relationships are necessarily precluded from the definition of "marriage," even when legislation is gender-neutral.

This reasoning can be attacked on several grounds.  Firstly, not all traditions should be respected. There is no compelling reason why same-sex couples should be excluded from the institution of marriage and its benefits.  A comparison of the features of successful same-sex and opposite-sex relationships is unlikely to reveal any differences which justify the restriction of the marital status to heterosexual couples.  The factors contributing to successful heterosexual relationships apply equally to homosexual relationships.  Love, trust and commitment are integral to the success of both types of relationship. 

Also, the contention that marriage has always been viewed as  a heterosexual institution is itself false.  Same-sex marriages have occurred with relative frequency in the past, both  within Christian and non-Christian communities.[14]   Those who claim that same-sex marriage violates religious ideals will be surprised to learn that the Catholic Church, which has been extremely vociferous in its opposition to homosexuality in general, approved of same-sex marriages for over 1 500 years, only ceasing to perform them in the nineteenth century.[15]  Throughout its history the Catholic Church developed over one hundred liturgies for same-sex marriage,[16]  at least one of which still remains on the official syllabus of approved ceremonies.[17]   As procreation within the marriage union was not possible, the ceremonies emphasised the companionship of the couple rather than the procreative aspects of the relationship.[18]  In the face of such evidence, any assertion that same-sex marriage offends religious values cannot be sustained.

As religion is widely perceived to be the cornerstone of morality, even for those who profess to have no religious affiliation, these revelations regarding the Catholic Church undercut any argument that legalising same-sex marriage is morally wrong. 

Also, Mark Strasser suggests --

"Morality is supposed to be based on reasonableness and fairness ... an important part of morality involves the refusal to allow individuals to impose their hatred and bigotry on others."[19]

If this is truly the essence of morality, it would seem that the exclusion of homosexuals from the marital status cannot be morally justified, as this exclusion perpetuates hatred, misunderstanding and discrimination against gays and lesbians.

Although the reasoning that forms the foundation of the traditional argument is not supported by historical research, it still remains the most common basis for the reluctance to extend the definition of "marriage" beyond the conventional opposite-sex relationship.  The prevailing view of marriage as a heterosexual union has become so entrenched in modern society that people are unwilling to alter it and are unresponsive to any *attempt* to alter existing definitions and perceptions.

This has a circular effect -- society is unlikely to expand its views upon marriage unless the courts or parliament redefines it to include non-heterosexual couples.  However, the courts and parliament are often unwilling to do this unless society accepts that non-heterosexual couples are capable of living in satisfying, fulfilling relationships.

 2.  The Procreation Argument Opponents of same-sex marriage claim that the primary purpose of marriage is procreation and, therefore, does not include any union that does  not present the possibility of childbearing.  It has been contended that legalising same-sex marriages will discourage people from entering into heterosexual relationships and, therefore, from having children.  The argument is that "a homosexual union pairs individuals who are *capable* of natural procreation in a relationship that is *incapable* of natural procreation."[20]

However, this is not a legitimate reason for denying marriage rights to homosexuals.  It is improbable that marriage was intended only to be available to a couple capable of procreation.  There has never been any attempt to prohibit unions between a sterile woman and a fertile man, or vice versa.[21]  Nor does legislation exist which *requires* a married couple to have children.  If procreation -- or the lack thereof -- were a real concern of the legislature, it is probable that it is probable that there would be legislation regulating marriages by sterile and handicapped persons.  The fact that the laws do not do this suggests that procreation is not a primary concern.

Nor is it the case that homosexuals will not have children if they enter into a same-sex relationship  Many wish to raise families and some in fact do so.  It is true that homosexuals cannot procreate within their union but there any many other options available which enable them to have children, including adoption and artificial insemination, although same-sex couples may find these more difficult to obtain than heterosexual couples, as it would involve application as a single person.[22]

Two areas which are related to the procreation argument are the concerns regarding the protection of children and the erosion of the institutions of marriage and the family.

 3.  The Protection of Children One source of anxiety is not that homosexuals will not have children but that they *will* and that those children will grow up to be homosexual or be sexually molested.[23]

Empirical research strongly indicates that children raised by homosexual parents are no more likely to be homosexual than are children of heterosexual parents.[24]  Research also suggests that heterosexuals are far more likely to molest children than homosexuals.[25]

These arguments cannot possibly succeed as they have been discredited by the wider scientific community.  They are simply feeble excuses advanced to perpetuate societal discrimination against homosexuals.

A closer examination of the above arguments reveals that the contentions of opponents to same-sex marriage are contradictory -- perhaps even hypocritical.  This point was succinctly stated by Strasser --

"...on the one hand, [they claim] that homosexuals do not have children and thus may justifiably be prevented from marrying and ... on the other that homosexuals do have children and thus may justifiably be prevented from allowing contact between their children and their same-sex partners."[26]

A more serious concern is the possibility that children raised by a homosexual couple will be subjected to discrimination and prejudice, especially from other children, who are quick to ridicule and ostracise anyone perceived as 'different' in any way.[27]   This is certainly problematic and little can be done in the way of a solution.  However, legal recognition of homosexual relationships may lead to long-term acceptance and the eventual dissipation of prejudice against homosexuals and those associated with them.  But this will not happen immediately, and may not be possible without some wounds along the way.  The best that could be said of this problem is that these children will be tormented in any event, whether or not their gay or lesbian parents are legally married.  Law reform may eventually eliminate this stigma.  Refusal to reform the law removes even this possibility.

 4.  The Downfall of the Institution of Marriage and the Family  As has already been mentioned, it is contended that legalising same-sex marriages will lead to a decline in the frequency of heterosexual marriages.  It is highly improbable that a change in the laws will have this effect.  This conclusion is supported by empirical research carried out in some Western European countries which have relaxed their laws governing homosexuality.[28]

Also, there is substantial agreement among international scientific researchers that sexual orientation is largely due to genetic factors, and is determined at a very young age.[29]  People do not *choose* to be heterosexual or homosexual, although there are choices to be made as to lifestyle -- i.e. a person can either remain 'closeted' or be openly gay.

Heterosexual marriage is not a substitute for a homosexual relationship.[30]  The  non-recognition of same-sex marriage is  unlikely to encourage homosexuals to voluntarily settle down in heterosexual relationships, although many who refuse to accept their homosexuality do attempt -- sometimes successfully -- to live as heterosexuals in all aspects of their lives, including personal relationships.  However, marriages between homosexuals and heterosexuals are frequently unstable and often fail, resulting in detriment for both parties, as well as any children of the relationship.

Legalising same-sex marriages may serve to promote tolerance -- perhaps even acceptance -- of homosexual relationships in the long run[31] and may spare many gay men and lesbians the confusion and inner turmoil[32] which often accompanies the early stages of self-realisation.

It would seem that the interests of society are better served by legalising homosexual marriages than by outlawing them.  The  traditional view of a family as consisting of a mother, father and children is no longer representative of today's society.  The failure to acknowledge the changing nature of society and the family will result in more harm than good.

Popular opinion is that homosexuals are promiscuous.  Some may be promiscuous but there are also many living in long-term relationships.  Long-lasting homosexual relationships may in fact be stronger than heterosexual relationships of the same or similar duration,[33] as homosexuality is regarded as immoral by a substantial proportion of society, whereas opposite-sex marriages are viewed favourably.  If marriage is an available option, it may encourage monogamy which may, in turn, reduce the incidence of HIV and AIDS, especially among gay men.  One observation that has been made in Denmark is that the majority of applicants for registered partnerships are men.[34]  Decriminalisation of homosexuality and the approval of same-sex marriages has not led to a decrease in heterosexual marriages,[35] nor has it resulted in an increase in homosexual behaviour.[36]

 5.  The Pragmatic Argument So far, this paper has discussed theoretical arguments for and against the legal protection of same-sex marriages.  Another approach adopted by opponents is to raise the practical difficulties faced by employers and others as a result of reform.  This issue was discussed by Richard Posner in his book *Sex and Reason.*[37]

Posner's point is that the legalisation of same-sex marriages will necessitate substantial reforms in employment, health and other areas.  He contends that both private and public employers would be forced to reassess employment, health and other benefits currently provided to married couples[38] in order to determine a scheme which will be economically efficient while still conferring the desired benefits on the married parties.[39]

Although it is an important consideration, it is submitted that monetary cost should be a minimal concern when the competing issue is that of people's rights.  It is not a valid justification.  It is merely a convenient excuse for continued inaction.

 Feelings Within the Gay Community Feelings within the gay community are mixed.  The majority appear to support equal marriage rights, even though they themselves may not wish to marry.  It is not the desirability of the marital status itself that is supported but, rather, the availability of the opportunity to marry.

However, there is a minority who believe that the pursuit of equal marriage rights is not necessarily a desirable goal.  These opponents of same-sex marriage believe that there is no reason for gays and lesbians to aim towards an institution that is so much a part of heterosexual 'society.'[40]  It is contended that the pursuit (and achievement) of equal marriage rights will result in a loss of individuality for gays and lesbians and will hinder the gay rights movement.[41]  

An additional concern is the creation of a split within the gay community, into 'good' and 'bad' homosexuals.[42]  The thrust of this argument is that the availability of legally sanctioned marriage will cause many couples to seek social, cultural and legal acceptance by entering into marriage.  These couples will form the 'good' homosexuals while those couples who choose not to marry will be labelled 'bad' homosexuals, and will continue to be social outcasts.[43]

A counter-argument to this is the fact that heterosexual de facto relationships are now widely accepted, which was not the case as recently as ten years ago.  Society is becoming more tolerant of homosexuality, so the availability of same-sex marriage may not have the effect suggested in the preceding paragraph.  There are a small number of people who are die-hard homophobes but they are unlikely to alter their opinions even if same-sex marriages have the support of the law.  Attitudes are changing and they will continue to change, even though this may be a gradual process.   It is also ideologically important to make this change, in order to promote -- and, hopefully, eventually achieve -- acceptance of same-sex marriages.

 These are some of the broader issues with which the Hawaiian Court[44] will be faced when making its interim and final decisions -- although this will now be affected by other factors.

An interesting development is the change in the attitude of the Hawaii State Legislature since the start of the case.  Although it remains in opposition of same-sex marriage rights, the Legislature has shifted its position somewhat.  Previously it threatened to amend the State Constitution to limit the definition of marriage to opposite-sex couples.[45]  On 2 December 1993 the Chair of the House Judiciary Committee of Hawaii's House of Representatives stated that the Committee would not seek a constitutional amendment, which would have the effect of invalidating the *Baehr v Lewin* retrial.

However, in more recent developments, on 22 April the Hawaii State  Legislature passed a bill (HB 2312) which defines marriage as available only to an opposite-sex couple.[46] While it does not have the same force as a constitutional amendment, it is nevertheless a clear attempt by the State to interfere with the deliberations of the court.   The Legislature may well have succeeded in its object -- it now appears unlikely that a ruling will be made in favour of the plaintiffs, due to the pre-emption of the decision by the new Act. 

The enactment of HB 2312 was accompanied by a number of reports detailing the reasoning behind the provisions in the Act.  Perhaps the strongest emphasis was on the perceived violation of the separation of powers doctrine.   In handing down its decision in *Baehr v Lewin* the judiciary was alleged to have overstepped the boundaries of its authority by ruling on what was said to be a policy matter [47], which should correctly be determined by the legislature or "the people of the State through a constitutional convention."[48]

This reasoning is unconvincing, at the least.  It is not uncommon for judges to consider and rule on matters of policy when making their decisions -- the allegation that the judiciary should not do so is unrealistic and seems merely to be a further attempt to justify a weak argument against the granting of marriage licences to same-sex couples.

The reports also cite proecreation as a reason for confining marriage to opposite-sex couples.  The Act is not premised on a couple's *actual* ability to have children but restricts the availability of marriage licences to:

"couples who appear, by virtue of their sex, to present the biological possibility of producing offspring from their union." [49]

Under the new Act, the State will not, and acknowledges that it *should* not, question opposite-sex couples who are applying for a licence as to their intention to have children.[50]  Nor will it require a couple to have children in order to remain married, deny marriage licences to the elderly or disabled, or require couples to be tested to determine their fertility before granting a marriage licence.[51]

The issue of children and procreation has already been canvassed and will not be pursued further, other than to re-emphasise that procreation is not the foundation of the marriage relationship, although it is of great importance to many couples who are married or are considering marriage.   Rather, the primary reasons for marriage -- in most cases -- are love and companionship.  Same-sex partners who are committed to each other enough to want to 'make it legal' should not be denied a marriage licence, any more than an opposite-sex couple should.      One bill remains to be considered.   This bill, SB 3141, would create wide registered partnership legislation for same-sex couples and apparently has the support of both the State and the complainants' legal representatives.[52]  Therefore, although registered partnership legislation is not the optimum result, and is not a substitute for full marriage rights, it nevertheless goes some way towards giving same-sex partners some of the benefits currently available only to married couples.

 Registered Partnership Legislation Registered partnership legislation was introduced in Denmark in 1988[53] and Norway in April 1993.[54]  For most practical purposes, registered partnership confers all the rights and obligations of full marital status to same-sex couples, including the obligation to pay maintenance to a former partner if the relationship breaks down.[55]  There are two exceptions, relating to the ability to adopt children[56] and the right to a church wedding, although the former is being reconsidered in Norway[57] and many religious denominations do perform same-sex marriage  ceremonies[58] so this is not a serious restriction.

A possible justification for the restriction relating to church weddings is that the government may have considered it inappropriate to impose obligations on churches to carry out marriage ceremonies when many current religious tenets consider homosexuality immoral despite substantial historical evidence to the contrary.

The reservations regarding adoption may stem from many of the concerns relating to children and the family discussed earlier.  The Danish and Norwegian legislatures may have been concerned that people would have been reluctant to accept the registered partnership legislation if it permitted equal adoption rights. 

This restriction cannot be overcome by attempting to adopt a child as a single person.  This is not possible under Norwegian  law.[59]  However, there is nothing to prevent a parent from obtaining custody of a child from a previous opposite-sex relationship.  This child may live with the homosexual parent his or her partner. 

 International Recognition of Same-sex Marriages and Registered Partnerships Danish and Norwegian registered partnerships are not required to be -- and are usually not -- legally recognised in other jurisdictions.[60]  A favourable decision in the retrial of *Baehr* will inevitably result in the recognition of same-sex marriages throughout the United States but it is uncertain whether or not these marriages will be recognised overseas.  If *full* marriage rights are granted, this may have international ramifications.   This will be discussed below, with special reference to Australia.

 Reform Within Australia The possibility of reform within Australia is remote and, in any event, would be extremely difficult.  Section 51(xxi) of the Commonwealth Constitution provides that only the Commonwealth can legislate on the subject of marriage.  The *Marriage Act 1961 (Cth)* is gender-neutral but the High Court, like the courts in the United States, will probably interpret 'marriage' as extending only to opposite-sex couples.[61] 

Technically, same-sex marriages are possible in Australia.  Dickey notes that s. 23B of the *Family Law Act 1975 (Cth)* does not specify the sex of the partners as a ground for nullity, and suggests that the wording of the provision implies that the grounds for nullity in the list is intended to be exhaustive.[62]  However, he also goes on to say that a requirement that the partners be of the opposite sex may have been such a basic assumption that the legislators did not think it necessary to specify it in the Act. 

Australian courts have adopted the ratio in *Hyde v Hyde and Woodmansee,*[63] which defined marriage as "the voluntary union for  life of one man and one woman to the exclusion of all others."  This definition, although non-statutory, and from another jurisdiction, has become so entrenched in Australian family law that it is highly unlikely that the courts would discard it in favour of a definition which includes non-heterosexual couples. 

An illustration of the extent to which the *Hyde* formulation has  become accepted is found in sections 46(1) and 69(2) of the *Marriage Act*.  These sections provide that, before a civil marriage celebrant can solemnise a marriage ceremony, he or she must say something to the effect that "marriage, according to the law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."[64]

The States could either legislate on homosexual relationships or refer this power to the Commonwealth.  However, many of the State Governments seem to be too conservative to do either of these.  Tasmania is reluctant even to repeal its sodomy laws, let alone validate homosexual relationships or concede its legislative power in this area to the Commonwealth.

However, there have been moves both on Federal and State levels to at least acknowledge homosexual relationships:  for example, the Australian Bureau of Statistics has confirmed that homosexual relationships will be acknowledged by the 1996 Census[65] and Australia currently recognises partners in long-standing same-sex relationships for the purposes of immigration and residency.[66]  The Australian Capital Territory Legislative Assembly has also introduced new legislation which confers property rights on homosexual partners.[67]

The process of acceptance has begun, but it would seem that legal recognition of same-sex marriages within Australia will be long in coming.  However, a favourable decision in *Baehr v Lewin,* awarding full marriage rights to be recognised internationally, may make a difference.

Australia generally recognises marriages validly entered into  overseas.  If employers give health and other benefits to an employee who entered into a same-sex marriage in Hawaii, there may be allegations of special treatment or discrimination from other homosexual employees.  Failure to provide legally married homosexual couples with benefits normally conferred by marital status may expose employers (or other organisations providing these benefits) to civil suits.  It is impossible to gauge the international impact of a favourable decision in *Baehr* but one possibility is that it may start a chain reaction around the world, especially as it will inevitably lead to the recognition of gay marriages throughout the United States.

 Conclusion The knowledge that society and the law condemns their personal  relationships can be very difficult for young gay men and lesbians who are coming to terms with their sexuality.  It is also inequitable for older homosexuals, as partners in established relationships are denied the financial and other benefits which are automatically conferred upon married persons and, in some circumstances, individuals in de facto relationships.

The failure to recognise homosexual relationships, whether in the form of marriage or registered partnership, promotes discrimination against gays and lesbians, as well as the perception that they are "second-class citizens."[68]  There is a need for change, but it is unlikely that independent[69] reform will occur in Australia in the near future.

NOTES

1.  On 26 June 1969 the New York Police raided the Stonewall Inn, a gay bar in Greenwich Village.  Instead of conceding, the patrons of the bar fought back in what has since been hailed as the turning point of the gay civil rights movement.

2.  E.g. *Baker v Nelson* 191 N.W.2d 185, *Singer v Hara* 522 P.2d 1187 (1974).

3.  852 P.2d.44 (Haw. 1993).

4.  Electronic mail message to multiple recipients of list AUGLBC-L, 5 April 1994.

5.  *Baehr v Lewin* at 46.

6.  Jeffrey Schmaltz, "In Hawaii, Step Toward Legalized Gay Marriages" (New York Times, 7 May 1993).  However, there is an exception to this general principle:  a State can choose not to honour another State's laws where its residents hold "strong   contrary views" ("States Face Gay Marriage Question" 17 May 1993:  electronic mail message, 26 June 1994)

7.  Supra, note 5, at 48.

8.  Ibid.

9.  Supra, note 5, at 67.

10. 388 U.S. 1 (1967).

11. Supra, note 5, at 57.

12. *Singer v Hara,* *Baker v Nelson*.

13. Supra, note 5, at 61.

14. See William N Eskridge, Jr, "A History of Same-Sex Marriage" 79(7) Virginia Law Review (October 1993) 1419 for a detailed discussion.

15. Jeffrey L Dorrell, "Gay Marriage:  It's Not Such a New Idea After All," This Week in Texas Aug 13-19, 1993.

16. Ibid.

17. Electronic mail message to multiple recipients of list GLB-NEWS, 22 September 1993; reporting on an upcoming book by historian John Boswell about the history of same-sex marriage in the Catholic Church.

18. Supra, note 15.

19. Mark Strasser, "Family, Definitions and the Constitution:  on the Antimiscegenation Analogy" 25 Suffolk University Law Review 981, at 1023.

20. Alissa Friedman, "The Necessity for State Recognition of Same-Sex Marriage:  Constitutional Requirements and Evolving Notions of Family," 3 Berkeley Women's Law Journal (1987-1988) 134 at 161.

21. Ibid.

22. For example, in Western Australia an individual can adopt children as a single person (s. 3(1) *Adoption of Children Act 1896 (WA)*) but this is possible only with judicial consent, which is reserved for particular circumstances - s. 4(2).  An additional observation relates to the required minimum age difference (s. 4(5) - at least 16 years for females; 18 years for males) between the prospective adoptor and adoptee.  The consequence of this is that adult adoptions, which are permitted in some parts of the United States, are not available to same-sex partners of similar ages who wish to create some kind of official legal status between them.  However, while adult adoptions result in a legally recognised relationship between the parties involved, their permanence may be undesirable.  An adoptor would continue to be responsible for an adoptee even after the collapse of their relationship.  Also, many consider the idea of sexual relations between persons who are legally in a parent-child relationship to be repulsive.

23. Supra, note 19 at 1026.

24. Supra, note 19 at 1027.

25. Supra, note 20 at 162.

26. at 1026.

27.  This has been expressly considered in at least one Australian case involving a custody dispute in which one parent is homosexual:  *In the Marriage of Brook, G.E. and Brook, H.L.* (1977) FLC 90-325, at 76, 710.

28. Supra, note 19 at 993.

29. The general consensus is that it is established by age five or six:  Supra, note 20 at 165.

30. Supra, note 19 at 994.

31.  It is too much to hope for immediate change.

32.  which may lead to denial and a resulting entry into an unsatisfactory heterosexual relationship.

33. "Homosexuals' Right to Marry:  A Constitutional Test and a Legislative Solution" 128 University of Pennsylvania Law Review (1979) 193 at 198.

34. "Norway Second Country in the World With a Partnership Law for Homosexuals," Norway Times 3 September 1992.

35. Supra, note 19 at 993.

36. Robin MacKenzie, "Transsexuals' Legal Status and Same-Sex Marriage in New Zealand" 7(4) Otago Law Review (1992) 569.

37. USA:  The President and Fellows of Harvard College, 1992.

38. Supra, note 37 at 313.

39. Supra, note 14 at 1431.

40. Paula Ettelbrick, "Since When is Marriage a Path to Liberation?"  Out/Look (Fall 1989) at 9, extracted in William Rubenstein, ed., Lesbians, Gay Men and the Law (New York:  The New Press, 1993), 401 at 403.

41. Ibid, at 402.

42. Supra, note 14, at 1491.

43. Ibid.

44. and other courts the world over which are faced with issues of same-sex marriage.

45. SB 3199 - electronic mail message re:  the Marriage Project Update, 8 December 1993.

46. Electronic mail message to multiple recipients of list GAY-LIBN, 22 April 1994.

47. i.e. (1)  the interpretation of the concept of discrimination on the basis of sex in Article 1, Section 5 of the Constitution, to include sexual orientation; and (2) the extension of the traditional definition of marriage to include same-sex couples.

48. Standing Committee Report No. 2777 (Honolulu, Hawaii, 1994).

49. Marriage:  Woman and Man Only (Report:  House of Representatives, 17th Legislature, 1994, State of Hawaii).

50. Standing Committee Report No. 11-94.  (Honolulu, Hawaii, 1994)

51. Ibid.

52. Ibid.

53. Supra, note 33.

54.  West Side Observer, June 1993, p 8.

55. The Norwegian Act on Registered Partnerships for Homosexual Couples, April 1993:  Norwegian Ministry of Children and Family Affairs, at 50.

56. Ibid.

57. Electronic mail message to multiple recipients of list QUEERPLANET, 8 March 1994.

58. for example the Unitarian Church.

59. "norway.homo.marriage.info." posting on the Queer Resources Directory:  Queer Information From Around the World (/tmp/gopheCAAa17439).

60. Electronic mail message to multiple recipients of list QUEERPLANET, 10 March 1994.

61. Lesbian and Gay Legal Rights Project, "The Bride Wore Pink:  Legal Recognition of Our Relationships," A Project of the Gay and Lesbian Legal Rights Lobby, 3 Australasian Gay and Lesbian Law Journal (1993) 67.

62. Anthony Dickey, Family Law, 2nd ed. (Sydney:  Law Book Company Ltd, 1990).

63. (1866) L.R. 1 P. & D. 130 at 133.

64. Supra, note 53 at 107.

65. Shaughn Morgan, "Legal Recognition of Gay and Lesbian Relationships" 3 Australasian Gay and Lesbian Law Journal (1993) 57 at 58.

66. William Rubenstein, ed, "Legal Recognition of Lesbian and Gay Relationships," Chapter 5 in Lesbians, Gay Men and the Law (New York: The New Press, 1993).

67. "Property Rights for Gay Couples" The West Australian, 23 April 1994.

68. Supra note 19 at 1023.

69. uninfluenced by developments in other countries.