Oscar I Roos and David Tan


One of the most important and pervasive legal questions is: how do we interpret legal instruments?  As law students you are familiar with a number of different approaches to this question.  Statutes, for example, can be interpreted using the plain meaning rule, the golden rule and the mischief rule, and various legislatures have mandated a ‘purposive’ approach to statutory interpretation.  In this paper we consider one very influential approach to this question called ‘originalism’.

There are lots of different schools of originalism, but basically an originalist interpreter starts from the premise that a legal instrument has a meaning at the time it was framed and that that ‘original meaning’ should determine (perhaps with some exceptions and qualifications) how the instrument should be interpreted thereafter.  The term originalism is most commonly employed to describe an approach to constitutional interpretation, but there is no reason why it cannot be employed to describe the interpretation of other legal instruments.  Interpreters of statutes, for example, often apply a methodology that could be described as originalist (What was the intention of parliament in enacting this statute?  What was the meaning of the words of this provision at the time it was enacted?) without recognising that they are doing so.  Indeed, some originalists claim that originalism is based on common sense intuitions about how we interpret speech generally.

Although one of the claimed benefits of originalism is its value-neutrality, it is often associated, particularly in the United States of America, with political conservatism.  Perhaps the most well-known embodiment of this association was the outspoken and controversial United States Supreme Court Justice Antonin Scalia, about whom a play, The Originalist, has been written.  However, in this article we seek to demonstrate that there is no necessary association between originalism and political conservatism, and that originalism can lead to some ‘progressive’ results.  We use two examples, one domestic and one international, from the struggle for marriage equality, which so often exemplifies the division between political conservatives and non-conservatives.


The issue in Commonwealth v. Australian Capital Territory,[1] was whether the Marriage Equality (Same Sex) Act 2013 (ACT) (‘ACT Act’) , which was enacted by the legislature of the Australian Capital Territory, was inconsistent with Commonwealth Marriage Act 1961 (Cth) (‘Cth Act), such that s 109 of the Australian Constitution operated to render the ACT Act legally inoperative.  Section 3 of the ACT Act defined marriage to mean ‘the union of two people of the same-sex to the exclusion of all others, voluntarily entered into for life’, whereas s 5 of the Cth Act defined marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’.  The High Court had to determine whether the Commonwealth Parliament had the power to enact laws concerning same-sex marriage because, if it did not, the two laws would probably operate concurrently, rather than inconsistently.   Even though it was drafted in the 1890s, the Court unanimously rejected the argument that the expression ‘marriage’ in the Australian Constitution was ‘fixed according to its usage at the time of federation.’[2]   It therefore found that s 51(xxi) did empower the Commonwealth Parliament to make laws concerning marriage between persons of the same sex, including laws which would allow same-sex couples to marry.[3]

So far, the High Court’s reasoning sounds like the opposite of constitutional originalism.  However, the Court did not arrive at its conclusion by embracing an ‘evolutionary’, ‘progressive’ or ‘living tree’ approach to constitutional interpretation (unlike, for example, the approach to constitutional interpretation embraced by the Supreme Court of Canada).  Rather, it reached its conclusion by reference to the intentions of its framers, notwithstanding that the assumptions of those framers, and the law in 1900, indubitably confined marriage to opposite-sex couples.  Hence the Court’s interpretative methodology could be described as originalist, albeit of a ‘moderate’ kind.

In its reasoning, the High Court observed that ‘marriage, as it stood at federation, was the result of a long and tangled development’.[4] Accordingly, the High Court found that the word ‘marriage’ at the time the Australian Constitution was framed was a ‘topic of juristic classification’[5] and not ‘a matter of precise demarcation,’[6] and that it refers to a social, institutional status ‘to which legal consequences attach and from which legal consequences follow’[7] that ‘never [has] been, and [is] not now immutable,’[8] despite authoritative assertions of its ‘essential elements and invariable features.’[9]


Art 23(2) of the International Covenant on Civil and Political Rights (‘ICCPR’)[10] guarantees ‘[t]he right of men and women of marriageable age to marry’.

The ICCPR was framed in the period from the late 1940s to the early 1960s when same-sex marriage was limited to a few tribal and traditional communities and there was no recognition of same-sex marriage within any extant legal system that was based primarily on the formulation of written rules, as opposed to custom.[11]  Indeed, in 1966, when the ICCPR was concluded, it would be seven years before the American Psychiatric Association declassified homosexuality as a mental disorder and twenty-four years before the World Health Organization removed homosexuality from its list of mental illnesses.[12]  Nevertheless, we are currently writing a paper (which Oscar will speak to at the Australasian Society of Legal Philosophy Conference in Auckland, New Zealand later this month) in which we argue that even an originalist reading of Art 23(2) can guarantee a right to marry a person of the same sex.

Our argument is based on two propositions which are consistent with Article 31 of the Vienna Convention on the Interpretation of Treaties (‘Vienna Convention’).  The first proposition is that treaties must be read in accordance with their ordinary meaning and the second proposition is that treaty provisions must be read in their context, which includes the other provisions of the treaty.

In accordance with our first proposition we stipulate that the interpretation of Art 23(2) is based on the conception of marriage when the ICCPR was framed.  However, in accordance with our second proposition, Art 23(2) must also be read in the context of Arts 2 and 26 of the ICCPR which provide that State Parties cannot discriminate against individuals subject to their jurisdiction.  We then defer to philosophers in political and legal theory who argue that it is discriminatory not to give a person a right to marry another person of the same sex.

There are two at least potential problems with our argument.  First, as we are applying an originalist methodology, it could be argued that an originalist interpretation of Arts 2 and 26 only guarantees protection against what was considered discriminatory in the 1960s.  We take this to lead to an absurd interpretation of the ICCPR which is inconsistent with the ordinary meaning requirements of the first proposition.  Many different countries, societies and cultures had varying ideas of what was discriminatory and what was not discriminatory in the period from the late 1940s to the 1960s.  No doubt some of them would be entirely antithetical to the very purpose and foundations of the ICCPR.  For example, this historically cramped reading of the ICCPR would mean that anti-miscegenation laws (that is, laws barring mixed-race marriages) do not violate Arts 2 and 26 since, for example, South Africa and the United States of America had such laws during the framing period.  Hence, the concept of discrimination in the ICCPR cannot be so confined, and Arts 2 and 26 must have referred at the time they were framed to some ideal and evolving concept of discrimination.  This then allows the originalist interpreter of Art 23(2) to defer to philosophers in political and legal theory who argue that it is discriminatory not to give a person a right to marry another person of the same sex.

A second objection might be that originalist reading of Art 23(2) cannot be reconciled with Arts 2 and 26.  In that case, we argue that the inconsistency should be resolved in favour of non-discrimination, as the ICCPR was much more concerned with non-discrimination than it was with matters of marriage.  The preamble of the ICCPR, for example, states that its purpose is to recognise ‘equal and inalienable rights of all members of the human family’.  We need therefore to resolve inconsistency in favour of non-discrimination because Arts 2 and 26 are more important than Art 23(2), as they give expression to the overriding aim of the ICCPR to eliminate discrimination. This is consistent with originalist methodology that emphasises predictability and stability as important rule of law values.  Where the interpreter has no choice but to read down or limit treaty provisions (that is, she either limits Art 23(2) or Arts 2 and 26), it would lead to less unpredictability and instability in the corpus of ICCPR law if she limits the provision of the ICCPR which is of less importance (Art 23(2)), rather than the more important provisions (Arts 2 and 26) which express the ICCPR’s core purpose.


[1]          (2013) 250 CLR 441.

[2]          Ibid 454–9.

[3]          Ibid 454–63.

[4]          Ibid 460–1 (emphasis added).

[5]          Ibid 455 (quoting A-G (Vic) v Commonwealth (1962) 107 CLR 529, 578 (Windeyer J)).

[6]          Ibid 459 (quoting A-G (Vic) v Commonwealth (1962) 107 CLR 529, 578 (Windeyer, J)).

[7]          Ibid 456.

[8]          Ibid 456–7.  See also A-G (Cth) v Kevin (2003) 30 Fam LR 1, 22 [87] (‘The concept of marriage therefore cannot . . . be correctly said to be one that is or ever was frozen in time.’).

[9].         Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130, 133.

[10]                     International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[11]         See, eg, Minister for Home Affairs v Fourie [2005] ZACC 19, 17 [30]; Schalk and Kopf v Austria [2010] ECHR 3014/04 p 13 [55] (‘In the [1950s] marriage was clearly understood in the traditional sense of being a union between partners of different sex.’).  See also Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Layland v Ontario (1993) 14 OR (3d) 658, [8]; Barbeau v. British Colombia (Attorney General) 2003 BCCA 406, 39 [86].

[12]         See Obergefell v. Hodges, 135 S. Ct. 2584 (2015).


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