‘If you sit on the fence too long … it becomes deeply uncomfortable’ droned Justice Hayne with more unintended irony than has been heard in the halls of Parkes Place in many a year. On Thursday the High Court of Australia happily described the Australian Constitution as a living, breathing document which evolves with its time, but saw no need to read an inch of progress into an antediluvian definition of “marriage”. This, and what follows, is my legal opinion regarding the High Court’s decision in (what I assume will become known as) the Marriage Equality Case, and I am aware it is a frightfully controversial one, especially to many a hackneyed scholar of constitutional law.
Regardless, I see flaws and hypocrisy in the unanimous decision of Chief Justice French along with Justices Hayne, Crennan, Kiefel, Bell, and Keane. If the Australian Constitution is to be a living document would this same reasoning not suggest that the court should have considered whether the evolution of the Constitution had rendered the section five definition of marriage in the Marriage Act 1961 (Cth) as invalid rather than merely assuming that our operational document innately limits an individual’s expression of emotional and physical attraction? Moreover, to adopt a colloquial and less eloquent form of constitutional interpretation: would the framers of the constitution actually give a fuck? Our framers actively attempted to avoid the definitional mess of the American experience and a prescriptive rendering of a federal head of power in the Australian constitution seems, at the least, incongruous with liberal doctrines of constitutional interpretation.
Before the Court the ACT proffered a simple, compelling argument to support the Marriage Equality Act. That is, that section six of the Marriage Act (Cth) allows for state marriage acts to operate insofar ‘as that law relates to the registration of marriages’ and that their Marriage Equality Act introduced an additional definition of marriage not defined under the Commonwealth act. However, it was the Commonwealth argument supporting the blatantly homophobic Howard Government amendment to the Marriage Act which won the day. The argument had help in the eyes of the Court, who saw fit to spend more time discussing Roman law, Christianity, and the Council of Trent rather than considering the fate of a sizeable part of the population unable to marry their partner.
But don’t get me wrong, the Court didn’t proclaim support for homophobia, what they failed to do was provide traction for the extension of a necessary legal protection. Lawyers aren’t an overly imaginative bunch, and let’s face it judges are merely glorified lawyers. Many laud the “creative reasoning” behind decisions such of the High Court but more often than not this reasoning has the same sort of half-cocked, chrome-buffed silver-lining found within the depths of the creative reasoning of a used-car-salesman. Yet somehow it has been proposed in some media outlets that Thursday’s decision will force the hand of the federal government… if you’re currently scratching your head at this logical fallacy you’re not alone.
It was within the Abbott Government’s power to accept the inevitability of social progress and decide not to engage in the expenditure of taxpayers’ money to annul the marriage of thirty innocent couples, but it was also within the Court’s power to read the concurrent definitions as consistent due to the almost unanimous support for the legislation. But this isn’t a magic land of social justice, and what could have been Australia’s Defense of Marriage Act Decision has instead been another sorry failure in the least inspirational year in recent memory.