R V. Toonen: A Legal Analysis

The law, as constructed by the state, creates a system of rules that we recognise instinctively as regulating our behaviour and defining what is right and what is wrong. The law is not necessarily linked with equity, yet in general society tends to view what is legal as that which is moral, decent and legitimate. Law regulates individual behaviours and identities by encouraging us to manage ourselves and to live our lives in particular ways (Stychin 2003, 4). That which is not supported or encouraged by the law rests in a kind of limbo, outside of what is legitimate or illegitimate. Same-sex marriage embodies this experience. That the law continues to endorse heterosexual marriage and, by implication, discourage homosexual marriage means that …show more content…
In addition, with relation to the case of R v Toonen I will consider how laws affecting same-sex marriage and homosexual relations have led to a general sense of homosexual persons being second class citizens (Geraldine, A, & Wagner, R 2015, 42). It will be interesting to note how the case of R v Toonen promoted discourses of privacy and tolerance in its attempt to disrupt anti-gay laws and how these notions ultimately fail to legitimate same-sex desire (Morgan 2001, …show more content…
In the case of R v Toonen, it is argued that the laws against homosexual relations, unfairly discriminated and disrupted an individuals right to privacy. The anti-gay laws, that existed in Tasmania prior to their decriminalisation in 1994, equated homosexual relations with other prohibited practices, such as polygamy, pedogamy, incest, and zoophilia (Geraldine, A, & Wagner, R 2015, 1). The continued lack of legislation in favour of same-sex marriage, acts as a continuation of these unjustifiable discriminations. The states exclusion of same-sex attracted people from the norm of heterosexual marriage, and the consequential impression of same-sex desire as illegitimate, sends the message that discrimination against same-sex attracted couples is okay, because the law itself deems it

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