Spiritual Being
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Stated in terms of the connotation/denotation distinction, the implication of this passage is that it may well be the case that the 1901 meaning of marriage as identified by Justice McHugh captures merely the denotation of the term at that time (that is, that to which the term was then applicable), rather than its connotation or core meaning. The connotation, or core meaning, of the term (that is, that which renders marriage the distinctive thing that it is) may well be more abstract and may not include any different-sex requirement at all, thus allowing the current denotation of the term to include also same-sex unions. Justice McHugh did not go on to address the question of what exactly the connotation of the term marriage is, but his implicit suggestion that it may not include a different-sex requirement is plausible, however contested the precise concept of marriage may remain. Thus, while I would argue that any plausible understanding of the core meaning, or connotation, of the constitutional term 'marriage' would need to appeal to ideas of romantic love, commitment and solemnisation, the case for including the different-sex requirement among the essential features of marriage is rather less strong. In particular, the fact that the drafters of the Constitution would automatically assume that people who marry are of different sexes does not necessarily make the different-sex requirement a part of the term's connotation.
If we could establish that the drafters' minds specifically addressed themselves to the question, and rejected the possibility, of SSM, then we would probably have to conclude otherwise. But there is no evidence that the drafters did so. On the contrary, the very inconceivableness of SSM in 1900 opens up the possibility of legitimately considering any different-sex element attaching to the meaning of marriage as used at that time a matter of mere contingency rather than necessity. The immutable core meaning, or connotation, of the constitutional term 'marriage' is likely, therefore, to be something like a sexually intimate adult relationship between people who have made a public declaration of their commitment to each other in a ceremony (call this 'constitutional marriage' — CM). But because of cultural shifts, the denotation of the term, that is all the things existing in this world to which CM is applicable, has changed over time (as denotations — unlike connotations — can do without doing violence to the constitutional text). It may well be argued that by 2007, the change in denotation has come to include same-sex unions.
If 'marriage' for the purposes of the marriage power includes SSM, then questions of inconsistency between State legislation on SSM or civil unions and the Marriage Act can logically arise.
Not said by me, said by an overworked 45 year old natural lawyer who hates his job. GG
If we could establish that the drafters' minds specifically addressed themselves to the question, and rejected the possibility, of SSM, then we would probably have to conclude otherwise. But there is no evidence that the drafters did so. On the contrary, the very inconceivableness of SSM in 1900 opens up the possibility of legitimately considering any different-sex element attaching to the meaning of marriage as used at that time a matter of mere contingency rather than necessity. The immutable core meaning, or connotation, of the constitutional term 'marriage' is likely, therefore, to be something like a sexually intimate adult relationship between people who have made a public declaration of their commitment to each other in a ceremony (call this 'constitutional marriage' — CM). But because of cultural shifts, the denotation of the term, that is all the things existing in this world to which CM is applicable, has changed over time (as denotations — unlike connotations — can do without doing violence to the constitutional text). It may well be argued that by 2007, the change in denotation has come to include same-sex unions.
If 'marriage' for the purposes of the marriage power includes SSM, then questions of inconsistency between State legislation on SSM or civil unions and the Marriage Act can logically arise.
Not said by me, said by an overworked 45 year old natural lawyer who hates his job. GG
