Marriage Equality: Taking the Liberal out of Liberalism

The same sex marriage debate in Australia is deeply strange. On the one hand, advocates of 'traditional marriage' paint marriage equality as a radical departure from morality. On the other hand, those in support of same sex marriage argue that 'love has no boundaries'. Neither of these positions grapple with the rationale for the law's involvement in certifying relationships. Arguments on both sides of the debate could probably be satisfied by removing the certification of intimate unions from the law altogether. This need not interfere with religious or personal observances, otherwise known as 'marriage'. This is a radical solution outside the framework of the current debate. But it does highlight the inherent conservatism of both sides of the issue - where the legal institution of marriage has universal support. This can be seen in the arguments by both parties in the US Supreme Court decision of Obergefell v Hodges.


Accepting that the law's involvement in marriage will remain, this post seeks to unravel the different aspects of the marriage equality debate through the lens of liberalism. It has been the rather extraordinary process of the Federal coalition joint party meeting on 11 August that raises a lot of questions in my mind. In particular, I wonder about what this debate says about the law and political process, and what it says about liberty and the operation of government control over personal actions.

Women's property - the case for ambitious change

Were they ambitious enough?

The proposal for constitutional recognition of Aboriginal and Torres Strait Islander Australians is in the news again, with Tony Abbott putting the brakes on anything that looks like a 'bill of rights'. At the moment, it's looking like a split argument as between 'minimalists' and others - just as occurred with the republic referendum all those years ago.

I've written about my own views on constitutional recognition, suggesting that a full suite of changes is necessary to achieve the goal. In this post though, I'll explore another minimalist change to rights - that of married women's property. My suggestion is that in failing to be ambitious in the change ushered in, what looks like a win only really reinforces the status quo.

Women's Property

The Married Women's Property Acts made a big change...but women's property remains an exception*

I have been doing some deep reflection on the progress of my thesis. I have concluded that my thesis question seems to have suffered a little from 'drift' away from my initial goal, to something that incorporated it but was perhaps a little different.

In my last iteration, I was looking at the doctrinal incoherence of constructive trusts... Indeed I was immersed in the intricacies of why across four common law jurisdictions (Australia, Canada, New Zealand and England) the law of trusts was uniform in recognising the 'intimate partner' constructive trust - and so a means of recognising women's separate property - but so diverse in the doctrine harnessed to deal with the 'problem' of women's separate property.

I've spent this last few weeks going back to basics. What was I really trying to show? My (bigger than PhD) idea is that the notion of property is itself inappropriate to deal with contemporary issues. I think property theory, in its liberal market mould, is unsuitable for our contemporary culture (copyright), for culture in its wider sense (first nations/Indigenous peoples' customary 'title') and it is most certainly unsuitable to deal with the huge issue of the environment, including of course, climate change. My PhD thesis is about the gendered nature of property and how it upholds the economic dependence of married women (married in a legal and de facto sense).

In my view, all property does is support the creation of a new market based on the idea of atomised, separated, individuals who are 'rational profit maximisers' and are in competition and unconnected with anyone else.

I'm not anti-capitalism - I agree that markets have created the circumstances for improvement in people's lives. But there must be a balance to the greed that accompanies unaccountable, unrelated, disembodied beings who exist in the eyes of the law (and economic theory).

So I have returned, in my thesis, to the roots of the question that first engaged me. I ask: is property gendered?

Here is a prezi that embodies my present thinking about how this argument might run. I'd be interested to hear your thoughts.

*image from https://ontariorealestatesource.wordpress.com/tag/women/

Normative foundations of intimate partner constructive trusts

On 5-6 December the Melbourne Law School is hosting a Trusts Conference at which I will be presenting.  Here are the speaker notes and powerpoints for my presentation.
'Distribution, Redistribution or Maintaining the Status Quo? The Normative Foundations of Intimate Partner Constructive Trusts'

Judgments concerning intimate partner constructive trusts often claim not to effect a redistribution of property as between the legal and beneficial owners. Yet despite looking at the parties’ respective contributions and the context of their relationship, the courts’ findings embody assumptions about justice and the value of labor within marriage-like relationships. Therefore in finding a constructive trust and determining the date at which it arose, it is at least arguable that the courts are themselves allocating property interests. This paper examines key Australian decisions on intimate partner constructive trusts to identify and critique possible justificatory norms on which contemporary doctrine in this area is founded.

A Husband's Sacrificial Love and the Law

 

Sacrificial love: Just for husbands?*

My last post here concerned the change to wedding vows in the Sydney diocese of the Anglican Church.  Under the change, women can now 'submit' to their husbands, rather than obey. This is appropriate, apparently, because:

The husband's love is one of sacrificial love, and to submit to that kind of love is not oppressive, but is actually a joy and a great freedom.

Since this story, an Anglican minister from the Sydney diocese has released a paper upholding 'male headship [as] part of God's good ordering of all society - not just His Church' and suggesting that Christian women in leadership roles should only take such roles if they are prepared to adopt an appropriately masculine leadership style.

While both of these stories represent a view of women that holds no sway in the context of contemporary Australian life, they provide an excellent opportunity to re-evaluate the law and its assumptions.  Despite anti-discrimination legislation and other measures to uphold the status of women - not as submissive to 'male headship', but as autonomous legal actors in their own right - the law remains imbued with presumptions originating in these dated paternalistic Christian beliefs.

Why 'Submitting' is a Dangerous Development

The Anglican church in the diocese of Sydney is changing the wording of its marriage service to provide, optionally for couples who choose it, for the wife to submit to the husband.  This replaces the old vow for the woman to ‘obey’ – made optional in the Anglican rite in 1928.  

It is not my place to critique religious rites so long as they occur within a church context between consenting adults.  However the Marriage Act 1961 (Cth) provides that those who are recognised ministers of religion of a recognised denomination, are empowered to solemnise marriages under the Act.

Because marriage is an institution of law, ministers of religion are in my view effectively agents of the state in terms of solemnisation of marriage.  It is concerning therefore that wives may undertake to submit to husbands in a legal process, even one that occurs within a church.  This is so for two reasons.

Women in Queensland. Back to the Future.

The public and private lives of women have come under scrutiny in Queensland in the last couple of months, including in a series of statements by LNP parliamentarians and advisers.  What is the status of women in Queensland in mid 2012, a few months after the swearing in of the Newman government?

What is the ‘Truth About Marriage’?

...Right-faction powerbroker Joe De Bruyn said marriage had been the union of a man and a woman ''since the dawn of humanity''...

...The Australian Christian Lobby reacted swiftly to the resolution, saying the party - in defiance of Ms Gillard - had chosen to be on the "wrong side of truth".

(The Australian, 3 December, 2011)

These comments by Joe de Bruyn in 2011 piqued my interest.  As I’ve written here before, marriage is, in my view, an institution of the law that seeks to subjugate women.  In a related context, in my view, it is a relationship concerning property.  Yet there is a very strong notion that marriage is so much more than this.

I have no opinion on private or religious views of marriage within the context of religious practice or how one chooses to celebrate it with one’s family and friends.  My interest lies in the legal construction of this private relationship – and de Bruyn’s comments, as with all comments in the same-sex marriage debate, occur in the context of law-making.

So I’ve been doing a little reading into the context of marriage and its regulation by the law.  I’ve a long way to go in learning about this complex institution, but even a preliminary overview provides some interesting contrast to the bluster of the political debate.

Is it true that marriage has been between a man and a woman since the dawn of humanity?  If you consider this as a moral or religious question, it need not enter the legal debate.  In the context of the law, I think that this is the wrong question.  I think that the right question is: since when has the law been so certain about its role in marriage, and in what circumstances?

Husband and Wife are Two Souls in the One Flesh...

It hath beene resolved by the Justices that a wife cannot be produced either against or for her husband...[for they are two souls in one flesh], and it might be a cause of implacable discord and dissention betweene the husband and the wife, and a meane of great inconvenience. (Lord Coke, 1628, cited in David Lusty, 2004)

As a result of the Biblical principle that husband and wife are 'two souls in one flesh', there is a common law tradition whereby women may not be obliged to give evidence against their husbands. This principle has apparently extended to apply to men giving evidence against their wives.

There are different bases on which a person may be required to or be excused from giving evidence.  Their competence differs from their compellability which differs from whether privilege attaches to their evidence, once they are giving testimony.  I am not seeking to explore these legal differences - and for the purposes of this post, will refer to these laws by a non-technical use of the term 'privileges'. I recognise that this term in itself has in part created the ambiguity in aspects of the common law in the area of spousal privileges.


The issue of spousal privilege has recently arisen in Australia, in the 2011 High Court decision Australian Crime Commission v Stoddart.  This decision found that (the technical legal) spousal privilege does not exist in Australia.  (Others have discussed the case: eg here and here.) However the case did, particularly in Heydon J's dissenting judgement, discuss the nature, genesis and evolution of spousal privileges (in their generic sense). 


While I have little, if any, expertise in the law or practice of evidence, what interested me about this topic and the High Court's recent decision on it, was the foundation of spousal privilege laws - that husband and wife are 'two souls in the one flesh'. In considering the idea of spousal privilege laws and the Court's approach to them, I am therefore interested in the notion of status-based laws, and their implications.

The Invisibility of Marriage

Marriage can construct visibility

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing (Sir William Blackstone, Commentaries on the Laws of England. Vol, 1 (1765), 442

In the contemporary debate in both Australia and internationally over same-sex marriage, I have been torn between my antipathy towards the institution of marriage and my desire to see a more inclusive society. In this post I consider this tension in an attempt to articulate a consistent basis from which to understand ‘marriage’ in a way that respects all as individuals in their own right and likewise affords respect at law to the domestic partnerships they enter into.