The mainstream media largely ignored the Federal Court ruling by Justice Jayne Jagot last month that our federal law blocking same-sex marriage is not discriminatory. AMF only noticed it through a supporter who noticed it on Andrew Bolt's site on 4th March.
A gay man is as free as a straight man to marry a woman.A lesbian is as free as any other woman to marry a man. That's equality.
What same-sex marriage activists want is very different -- a new freedom to marry someone of the same sex. What they want isn't marriage at all, since marriage is the union of a man with a woman, excluding all others.
And if we are to change what marriage means, we have a duty to consider not just the good such a huge change to such a critical social bond could bring, but the evil, too.
My argument has often been howled down as the sophistry of a wicked conservative. But it seems something similar is also the legal opinion of Jane Jagot, a young judge of the Federal Court.
In a virtually unreported decision last month, Justice Jagot rejected a claim by prominent gay activist Simon Margan that state laws banning the registration of same-sex marriages were a breach of the Sex Discrimination Act.
Margan was wrong, found the judge: "There cannot be discrimination by reason of the sex of a person because in all cases, the treatment of the person of the opposite sex is the same. Hence, a man cannot enter into the state of marriage as defined with another man just as a woman cannot enter into the state of marriage with another woman as defined.''
Judge Jagot summed up:
In the present case, the alleged discriminatory treatment results from the fact that the relevant agencies of the State can register a marriage” which is defined by s 5(1) of the Marriage Act 1961 (Cth) (the Marriage Act) as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. It follows that the union of a man and a man or a woman and a woman to the exclusion of all others, voluntarily entered into for life, is not a “marriage” as defined in the Marriage Act and cannot be registered by the State agencies as a marriage.
In the terms of s 5 there cannot be discrimination by reason of the sex of a person because in all cases the treatment of the person of the opposite sex is the same. Hence, a man cannot enter into the state of marriage as defined with another man just as a woman cannot enter into the state of marriage with another woman as defined.
None of Mr Margan’s submissions about the relevant comparator being as between a man and a woman wishing to marry a man and a woman and a man wishing to marry a man are available to be made on the terms of s 5. By statutory definition, persons of the opposite sex may marry and persons of the same sex may not.
The redress for these circumstances lies in the political and not the legal arena because what would be required is a change to the definition of “marriage” in s 5(1) of the Marriage Act.
Justice Jagot did not say she opposed such a change. She has simply exposed the word games being played.
Neil Foster, an associate professor in law at Newcastle University, agrees. The "equality'' argument is "fundamentally misconceived'', he says. "The call to allow same-sex marriage is legitimately seen as not a claim against discrimination, but a claim to change the nature of marriage.''
You may want that change or not. Fine. Let's debate. But ditch that deceptive talk of "equality'' and be honest about what we're deciding.
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