Last Thursday, the 12th of December, the High Court decided, unanimously, that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the ACT, could not operate concurrently, with the federal Marriage Act 1961. The Court held that, under the Australian Constitution, only the federal Parliament has the power to legislate with respect to same sex marriage. To reach this conclusion, however, the Court also held that that “marriage,” as provided by s 51(xxi) of the Constitution, includes a marriage between persons of the same gender.
The Court held that the legal union of “marriage,” in Australia, is governed completely by the federal instrument, the Marriage Act; and, that despite the absence of constitutional barriers to same sex marriage, the Marriage Act does not currently provide for the formation of, or recognition of, marriage between same sex couples, or recognise marriages between same sex couples that occurred in foreign states.
Consequently, in relation to the ACT Marriage Equality Act, the Court found that, because the object of the ACT Act was to provide for marriage equality for same sex couples, and not for a different form of a legally recognised relationship, the ACT Act could not operate in concurrence with the Marriage Act. Furthermore, that because the ACT Act failed to validly provide for the formation of same sex marriages, its provisions regarding the rights of parties to such marriages, and the dissolution of such marriages, could not have separate operation and were consequently also of no effect. That is, the Court held that the entirety of the ACT Marriage Equality Act has no legal effect.
Thursday night, the majority of my facebook feed erupted in a kind of unified, uninformed, rage. Most of these people would not have read a news article on the case, let alone the actual case, so, once again, a complicated issue became misrepresented by the short bytes of social media, and its true meaning and nuance completely lost. I would like to briefly clarify a few issues.
1 – The ACT’s Marriage Equality (Same Sex Act) 2013 was always symbolic, not legally effectual.
Sydney Constitutional Law professor, Anne Twomey, wrote for the Conversation this week contending that the ACT’s Marriage Equality (Same Sex Act) 2013, ‘produced neither a marriage nor equality.’ Her argument stemmed from the fact that the ACT Act simply produced legislative inconsistency, which left the law completely inoperative: the ACT Law being obviously at complete odds with the federal Marriage Act. This is because, as a rule, if federal and state legislation are inconsistent, the federal legislation will always prevail to the extent of that inconsistency.
Here, the court held that s 51(xxi) of the Constitution provides the federal Parliament with the power to make laws regarding “marriage” and its related matters, for a distinct purpose. That purpose was to avoid what the Constitution’s framers saw as a ‘great defect in the United States Constitution,’ and, to ‘enable the federal Parliament to provide uniform laws governing marriage and divorce’ (see paragraph 7 of the judgement).
So, what was the point of the ACT Marriage Equality (Same Sex) Act 2013 then? Whilst the ACT Act lacked legal effect, due to its inconsistency with the federal Marriage Act, it did not lack sentimental, and symbolic effect. It was certainly a significant milestone in the fight for marriage equality, and one that managed to convey to both Australia and the world, how widespread Australian support for marriage equality is. Whilst the ACT Legislative Assembly would have had reasonable grounds to suspect that their Act would be promptly shut down by the High Court, their efforts to test the waters, so to speak, was and is monumental. The ACT Act may prove useful in drafting future marriage equality legislation, for example, and it may have increased pressure on the movers and shakers of the federal Parliament, to shift to a conscience vote on the matter.
2 – The High Court’s interpretation of “marriage,” under the Constitution, is a MASSIVE step towards marriage equality.
Significantly, the Court did find that “marriage,” as provided by s 51(xxi) of the Constitution, includes a marriage between persons of the same gender, ‘…when used in s 51(xxi), “marriage” is a term which includes a marriage between persons of the same sex’ (see paragraph 38 of the judgement).
If the Court had decided that s 51(xxi) did not permit the federal Parliament to legislate in the favor of same sex marriage, because same sex marriage was not permitted under the Constitutional definition of marriage, then the ACT Act ‘would probably operate concurrently with the Marriage Act… and the ACT Act would provide for a kind of union which the federal Parliament could not legislate to establish’ (see paragraph 9 of the judgement). That is, if the Court had not held that the Constitutional definition of marriage was same sex inclusive, whilst the ACT Act would have remained intact and carried legal weight, same sex marriage could have only ever been a matter of state legislation.
Consequently, this Constitutional interpretation of “marriage” as same sex inclusive creates a precedent under which same-sex marriage can be rendered legal under Commonwealth law in the future. As Australians, we don’t want a situation where same sex marriage and marriages are only possible and recognised in a few left-leaning states or territories. It would possibly be a massive step backwards for marriage equality, to have our country polarised in this way. That is, federal law is the only real way to achieve marriage equality.
3 – The High Court effectively put marriage equality completely in the federal Parliament’s ball court. This is a good thing.
The High Court’s interpretation of “marriage,” under s 51(xxi) of the Constitution, was a clear legal statement of the viability of marriage equality for Australia. It is not the High Court’s job to legislate, but to interpret the constitution, and to review legislation. In this case they reviewed the ACT Act, and held that it was legally moot, and interpreted the Constitution, stating that same sex marriage was entirely Constitutionally possible.
That is, the High Court has given Australia’s democratically elected federal politicians the Constitutional go-ahead to amend the Marriage Act, and to legislate for marriage equality. Whether these politicians choose to do so is a matter for the Australians who elected them. And, given 64% of Australians believe that same sex couples should be allowed to marry, including 76% of Coalition voters, and 81% of young people, perhaps federally legislated marriage equality is not too far off.