An Incurable Malaise: Commonwealth V. Australian Capital Territory and Baskin V. Bogan as Symptoms of Early-Onset Dystopia

I. INTRODUCTIONDystopia holds sway in all of our imaginations. That concept of control by others and loss of individual freedom is the stuff of our collective nightmare. The very idea that the only freedom is one of conforming to an order that is dictated sends chills down the spine.One thing that is noticeably absent in the books and films of the popular dystopia is any mention of deity or religion. The implied premise seems to be that all such questions were disposed of long before the events of the current story. But nowhere do we get the backstory as to how such questions disappeared.We are left to guess how, in this or that particular dystopia, consideration of the divine disappeared. Recognizing, as one must, that correlation is not causation, we are left to speculate whether the loss of religious inclination was merely coincidental or whether that loss may have had some contributing effect to the sorry state of affairs in which the story places us.We may not be in need of speculation much longer. It has long been a part of the arsenal of arguments used against proposed changes to marriage laws that these laws would be used as a weapon-in combination with anti-discrimination laws-to drive more conservative, predominantly religious views of marriage from the public square. With the changes that are occurring, those arguments-placed as logical extrapolations-now have evidence that the laws promoting tolerance of deviations from a previously accepted norm seem only to promote tolerance of the deviation in substitution of the norm. This limits the freedom of those who hold conservative views from promoting or even preferring the norm.In the case of marriage reform, which is so closely connected to moral and religious beliefs, our only freedom left might be conformity. If so, could we perhaps be witnessing symptoms of earlyonset dystopia?This Article looks at how various courts have recently dealt with questions of proposed marriage reform and finds that they have limited the ability of gay marriage opponents to disagree. This limitation puts freedom of conscience and religious liberty at serious risk.1 The approach of these courts also suggests that societies can introduce a new right without carefully considering the cost that it may have for time-honored liberties that have served society well in the past. This Article argues that instead of requiring an urgent rewriting of all that is now held dear to many individuals, societies should take a gradualist approach, weighing each matter carefully before jettisoning the old mores.2To accomplish all of this, this Article analyzes two cases, one from Australia and one from the United States: Australian Capital Territory and Baskin. Part II introduces these two cases and some of the problems with their reasoning. Parts III and IV then delve into each of the cases individually, pointing out-particularly in Baskin- the arguments and factual matters that appear to be the subjects of confusion, elision, conflation, and oversight. Part V then addresses evidence of the negative impact same-sex marriage would have on society generally and children especially. Part VI shows the history and tactics of the LGBT community in achieving its goal of same-sex marriage, including the negative impact it is having on the freedoms of speech, association, religion, and conscience. Part VII concludes questioning whether the law is developing in a way that benefits society as a whole.II. AUSTRALIAN CAPITAL TERRITORY & BASKIN: INTRODUCTION AND PROBLEMSA. Australian Capital Territory IntroductionIn a previous article, I explained how, under Australian constitutional arrangements, it was arguable whether the federal or the state legislatures are competent to pass laws permitting so-called "same-sex" marriage.3 The suggested limitation on the federal legislature depends on an originalist interpretation of the federal marriage power. …