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-civilunion/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) 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) 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 Nicholson, Alastair, ‘The Legal Regulation of Marriage’ (2005) 29 Melbourne University Law Review 556, 562–4Google Scholar; 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: Goldsworthy, Jeffrey, ‘Interpreting the Constitution in its Second Century’ (2000) 24 Melbourne University Law Review 677.Google Scholar As pointed out in Attorney-General for the Commonwealth v Kevin (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) 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) 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) 156 CLR 170 (constitutional meaning of marriage is not up to Parliament, per Brennan J at 182); Re F; Ex parte F (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) 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) 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.’ Meagher, Dan, ‘The Times Are They A-Changing? — Can the Commonwealth Parliament Legislate for Same-Sex Marriages?’ (2003) 17 Australian Journal of Family Law 134.Google Scholar

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) 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) 56 CLR 657, 707 (Evatt J). This doctrine, although developed in early constitutional jurisprudence, has never been clearly overruled.

⁴⁷ NSW v Commonwealth (2006) 231 ALR 1.

⁴⁸ Wenn v A-G (Vic) (1948) 77 CLR 84.

⁴⁹ NSW v Commonwealth (2006) 231 ALR 1, 99.

⁵⁰ Ibid 98–100.

⁵¹ Wenn v A-G (Vic) (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) 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 Koppelman, Andrew, ‘Is Marriage Inherently Heterosexual?’ (1997) 42 American Journal of Jurisprudence 51, 52CrossRefGoogle Scholar; Coombs, Mary, ‘Sexual Dis-Orientation: Transgendered People and Same-Sex Marriage’ (1998) 8 UCLA Women's Law Journal 219, 229.CrossRefGoogle Scholar

⁶⁶ Finnis, John, ‘Law, Morality, and “Sexual Orientation“’ (1994) 69 Notre Dame Law Review 1049, 1063.Google Scholar

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 Strasser, Mark, ‘Natural Law and Same-Sex Marriage’ (1998) 48 DePaul Law Review 51, 69–72Google Scholar; Koppelamn, above n 65, 57–8.

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

⁷³ Ibid.

⁷⁴ Finnis, John, ‘The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and Historical Perspectives’ (1997) 42 American Journal of Jurisprudence 97.CrossRefGoogle Scholar

⁷⁵ Ibid 118.

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

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, Macedo, Stephen, ‘Homosexuality and the Conservative Mind’ (1995) 84 Georgetown Law Journal 261, 277, 286–7Google Scholar; 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 Coolidge, David O, ‘Same-Sex Marriage? Baehr v Miike and the Meaning of Marriage’ (1997) 38 South Texas Law Review 1, 51Google Scholar: 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 George, Robert P and Bradley, Gerard V, ‘Marriage and the Liberal Imagination’ (1995) 84 Georgetown Law Journal 301, 303–4, 307–310.Google Scholar

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 Becker, Mary, ‘Women, Morality, and Sexual Orientation’ (1998) 8 UCLA Women's Law Journal 165, 185–191CrossRefGoogle Scholar; Feldblum, Chai R, ‘Gay Is Good: The Moral Case for Marriage Equality and More’ (2005) 17 Yale Journal of Law and Feminism 139, 161–4Google Scholar (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: Lee, Patrick and George, Robert P, ‘What Sex Can Be: Self-Alienation, Illusion, or One-Flesh Union’ (1997) 42 American Journal of Jurisprudence 135, 143.CrossRefGoogle Scholar

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 Chartier, Gary, ‘Natural Law, Same-Sex Marriage, and the Politics of Virtue’ (2001) 48 UCLA Law Review 1593, 1606–8.Google Scholar

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 Millbank, Jenni, ‘Recognition of Lesbian and Gay Families in Australian Law — Part 1: Couples’ (2006) 34 Federal Law Review 1.CrossRefGoogle Scholar

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 Eskridge, William N Jr, ‘A History of Same-Sex Marriage’ (1993) 79 Virginia Law Review 1419.CrossRefGoogle Scholar 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; Polikoff, Nancy D, ‘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 1535CrossRefGoogle Scholar; Polikoff, Nancy D, ‘Why Lesbians and Gay Men Should Read Martha Fineman’ (2000) 8 American University Journal of Gender, Social Policy, and the Law 167Google Scholar; Foster, Sheila R, ‘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.Google Scholar Recently, Dworkin has added his authority to the argument in favour of gay marriage: Dworkin, Ronald, ‘Three Questions for America’ (2006) 53 The New York Review of Books 24.Google Scholar

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 Butler, Judith, ‘Is Kinship Always Already Heterosexual?’ (2002) 13 Differences 14, 21.CrossRefGoogle Scholar

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