Beyond Marriage Equality & Skin Curling


  • The Hon Michael Kirby AC CMG


December 2017 marked the culmination of a tedious process which lead to the enactment by the Australian federal Parliament of long overdue amendments to the Marriage Act 1961 (Cth). However, the anomalous approach in the form of a public postal vote that was employed in deciding whether a minority of citizens should be afforded equal civil rights to other citizens highlighted and exacerbated the vulnerability experienced by the very subjects it sought to redress. Nonetheless, in reminiscing about the significant changes that I have witnessed in my lifetime regarding alleviation of the uniquely hostile discrimination against LGBTIQ citizens is doubtless a step in the right direction and can make us optimistic about times to come, but also impatient to complete these changes in the hope that similar discrimination and injustices circumvented in times to come — and for generations to come.


A Articles/Books/Reports

Aksoy et al, ‘Do Laws Shape Attitudes? Evidence from Same-Sex Relationships Policies in Europe’ (Working Paper No 219, European Bank for Reconstruction and Development, July 2018)

Australian Bureau of Statistics, Report on the Conduct of the Australian Marriage Law Postal Survey (Catalogue No 1800.0, 30 January 2018)

Gamble, Barbara S, ‘Putting Civil Rights to a Popular Vote’ (1997) 41(1) American Journal of Political Science 245

Gogarty, Brendan, Anja Hilkemeijer and Daniel Westbury, ‘Religious Based Exceptions from Anti-Discrimination Law: Comparing Jurisdictions that Permit Same-Sex Marriage’ (2018) 48 Alternative Law Journal 1

Kirby, MD, ‘Adult Guardianship Law, Autonomy and Sexuality’ (2013) 20 Journal of Law & Medicine 866

Kirby, MD, ‘Marriage Equality Law and the Tale of Three Cities: How the Unimaginable became Inevitable and Even Desirable’ (2016) 22 Auckland Uni Law Review 11

La Trobe University, Australian Research Centre in Sex, Health and Society, Annual Report 2017 (Report, April 2018)

Mazel, Odette, ‘The Policies of Difference: Posting My ‘Vote’ on Marriage Equality’ [2018] 48 Alternative Law Journal 4

McSkimming, Josie, Leaving Christian Fundamentalism and the Reconstruction of Identity (Routledge, 2017)

Strauss, Gregg, ‘What’s Wrong with Obergefell’ (2018) 40 Cardozo Law Review 631

Twomey, Anne (ed), ‘A Tale of Two Cases: Wilkie v Commonwealth and Re Canavan’ (2018) 92 Australian Law Journal 17

B Cases

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (1998) 216 CLR 473

City of Boerne v Flores (1997) 521 US 507

Combet v The Commonwealth (2005) 224 CLR 494; [2005] HCA 61

Federal Commissioner of Taxation v Word Investments Ltd (2008) 236 CLR 204; [2008] HCA 55

Fourie and Anor v Minister of Home Affairs and Anor [2005] ZACC 19; (2006) (1) SA 524

Goodridge v Department of Public Health, 798 NE 2d 941 (Mass 2003)

Hyde v Hyde (1866) LR 1 P & D 130

Lee v Ashers Baking Company Ltd [2018] UKSC 49

Masterpiece Cake Shop v Colorado Civil Rights Commission, 584 US (2018); 138 S Ct 1719 (2018)

Navtej Singh Johar and Ors v Union of India (2018) SCOI

Obergefell v Hodges, 576 US (2015); 135 S Ct 2584 (2015)

Plaintiff M68/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 297

Registrar of Births Deaths and Marriages (NSW) v Norrie (2013) 250 CLR 490; [2014] HCA 11

Re Same-Sex Marriage [2004] 3 SCR 698

The Commonwealth v Australian Capital Territory (2013) 250 CLR 441; [2013] HCA 55

United States v Windsor, 570 US 744 (2013)

Wilkie v The Commonwealth (2017) 91 ALJR 1035

Williams v The Commonwealth (2012) 248 CLR 156; [2012] HCA 23

C Legislation

Australian Constitution

Births, Deaths and Marriages Registration Act 1995 (NSW)

Civil Partnership Act 2008 (ACT)

Civil Unions Act 2006 (ACT)

Defense of Marriage Act 1996, Pub L No 104-199, 110 Stat 2419

Family Law Act 1975 (Cth)

Indian Penal Code 1860

Marriage Act 1961 (Cth)

Marriage Amendment Act 2004 (Cth)

Religious Freedom Restoration Act, Pub L No 103-141; 107 Stat 1488

Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Act 2008 (Cth)

Sex Discrimination Act 1984 (Cth)

D Treaties

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948)

E Other

Crowe, David, ‘Scott Morrison Vows to Change Laws on Religious Freedom but Won’t Be a ‘Culture Warrior’ PM’, Sydney Morning Herald (online, 7 September 2018) <>

Grattan, Michelle, ‘Little Upside for Malcolm Turnbull in Debate over Religious Freedom’, ABC News (online, 13 July 2018) <>

McGowan, Michael, ‘Scott Morrison Sends His Children to Private School to Avoid ‘Skin Curling’ Sexuality Discussions’, The Guardian (online, 3 September 2018) <>

Myles, Cameron, ‘Religious Freedom Laws Must Not Discriminate, Former High Court Justice Warns’, WAtoday (online, 30 September 2018) <>

Newman, Christy, ‘Queer Families: Documenting Stories of Adversity, Diversity and Belonging’ (Sex(uality) Lecture, University of New South Wales, 22 February 2018)

Owens, Jared, ‘Evangelical Vote May Tip the Federal Election’, The Australian (online, 11 September 2018) <>

Royal Commission on Human Relationships, Final Report (Report, 1974–78)

Tehan, Dan, ‘Lessons from St Thomas More and the Freedom of Religion in Australia Today’ (St Thomas More Lecture, Australian Capital Territory, 22 June 1018)