ACT law delivers neither marriage nor equality: the High Court’s verdict

By 12 December, 2013 15

gay marriage

By Anne Twomey, University of Sydney

The ACT’s Marriage Equality (Same Sex Act) 2013 produced neither a marriage nor equality. Instead it produced inconsistency, leaving the law completely inoperative. Those who exchanged marriage vows last weekend were not legally married, as there was no law in operation under which they could wed.

Nonetheless, the High Court’s judgment in Commonwealth v Australian Capital Territory may, in the long term, prove the best possible gift for same-sex marriage advocates. This is because much of the court’s unanimous judgment concerns the meaning of marriage in Section 51(xxi) of the Constitution. It concluded that:

…when used in s 51(xxi), “marriage” is a term which includes a marriage between persons of the same sex.

This opens up the possibility of same-sex marriages under Commonwealth law in the future, which would be a much better option for same-sex couples than divergent and piecemeal state and territory laws. This is the only way truly to achieve “marriage equality”.

Until now, there had been doubt about whether the High Court would take an “originalist” view of the meaning of marriage by focusing on what marriage meant when the Constitution was enacted, or whether it would take a more contemporary view.

Instead, the High Court has taken an intermediate position. Its judgment focused not on the type of marriages that could be formed at the time of federation, but rather upon the “topic of juristic classification”, being the legal category encompassed by the term “marriage”.

In doing so, the High Court incorporated other notions of “marriage” from different legal systems that existed in the 19th century, including polygamous marriage. The court noted that even though polygamy would not have been permitted in Australia when the Constitution was drafted, it was recognised as a relationship which could properly be described as a marriage, and that:

…in both England and Australia the law now recognises polygamous marriages for many purposes.

The court then concluded that once it is accepted that “marriage” can include polygamous marriages, then this legal category must be seen as capable of going beyond the traditional definition of a “voluntary union for life of one man and one woman, to the exclusion of all others”.

The High Court added that the juristic concept of marriage cannot be confined to preconceived notions of what marriage “should” be. Other legal systems recognise same-sex marriages and “the juristic concept of marriage…embraces such unions”.

Definition of marriage

The High Court then came up with the following legalistic definition of marriage:

“Marriage” is to be understood in s 51(xxi) of the Constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.

While one can guarantee that no-one is going to want to read this definition out at a marriage ceremony, it is the legal passport to same-sex marriages in the future (as well as polygamous marriages and potentially other variations, if permitted by law).

Inconsistency with the Commonwealth’s Marriage Act

But while the High Court recognised that the federal parliament may legislate in relation to same-sex marriages, it also held that the Commonwealth’s Marriage Act is comprehensive and exhaustive in its conferral of the status of marriage.

The only form of marriage permitted in Australia is that which is authorised by the Commonwealth’s Marriage Act. The High Court therefore held that the ACT’s Marriage Equality (Same Sex) Act could not operate concurrently with the Commonwealth’s act and that all its provisions were therefore inoperative.

The High Court did not accept the ACT’s argument that a different inconsistency rule applied to it and that its law could survive as long as there was no direct inconsistency with the Commonwealth’s Act. The court concluded that:

…if a Commonwealth law is a complete statement of the law governing a particular relation or thing, a Territory law which seeks to govern some aspect of that relation or thing cannot operate concurrently with the federal law to any extent.

Where to from here?

The upshot of the case is stated in the opening paragraph of the High Court’s judgment:

Under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law…is a matter for the federal Parliament.

It may still be possible for the states and territories to provide for “some form of legally recognised relationship which is relevantly different from the relationship of marriage”, such as a form of civil union. But if “marriage equality” is what is being sought, then the only place it will be found is in the federal parliament.

Anne Twomey has received funding from the ARC and occasionally does consultancy work for governments and inter-governmental bodies.

The Conversation

This article was originally published at The Conversation.
Read the original article.

[Photo by MartyO]

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15 Responses to ACT law delivers neither marriage nor equality: the High Court’s verdict
#1
HiddenDragon4:57 pm, 13 Dec 13

I’ll stick to my view that the current federal parliament may yet surprise on this issue – particularly if it goes full term – and the Court’s conclusion that “…when used in s 51(xxi), “marriage” is a term which includes a marriage between persons of the same sex” may prove to be very significant.

#2
FootyFan4:59 pm, 13 Dec 13

Great article; also reminded of something else. It seems somewhat misleading for same-sex marriage advocates to refer to themselves as being for “marriage equality” if they claim marriage is only between two persons. What is their opposition to polygamy? Most of the arguments for same-sex marriage work equally well for polygamy (and its variations) yet the Greens and Australian Marriage Equality are both against polygymous marriages. Would add some consistency at least if they broadened their approach and would probably justify the term “marriage equality” which I feel is being misused.

Having said that, I don’t personally like the idea of polygamy (while I do support same-sex marriage). But that doesn’t really stand up well as an argument, so I’m leaning more towards saying that marriage should simply encompass any legal relationship, unless anyone has a good argument as to why same-sex marriage should be legalised but polygamy shouldn’t.

#3
BimboGeek5:18 pm, 13 Dec 13

Time for another challenge then? International human rights vs the bit of the marriage act that restricts marriage to straight people?

#4
dtc5:27 pm, 13 Dec 13

FootyFan said :

Having said that, I don’t personally like the idea of polygamy (while I do support same-sex marriage). But that doesn’t really stand up well as an argument, so I’m leaning more towards saying that marriage should simply encompass any legal relationship, unless anyone has a good argument as to why same-sex marriage should be legalised but polygamy shouldn’t.

There is no real difference; the same arguments apply as you have pointed out. I guess the only distinction that can be argued is that marriage should be between two people only; but that is the same (really) as the argument that marriage should be between a man and a women-it begs the question ‘why should it be limited in such a fashion’.

Probably the main issue with polygamous marriages is that the law cannot cope with two spouses (eg of a deceased person) and would require considerable rewriting to deal with the situation. There is an argument put in relation to polygamy in those countries that allow it (much of N Africa and the M East) that its oppressive to women, which it is in those cultures. But those cultures are not Australia; so the same issues do not arise IMHO.

The main reason why the Greens and AME are against it is, I reckon, not to muddy the waters and let side issues (from their perspective at the moment) muddy the waters (eg: how long would it take to dengenerate into an anti Muslim diatribe)

Before anyone jumps up and down, the are clear scientific/social arguments as to why some marriages should not be allowed eg to people under certain age, incestuous, etc. There is no ‘slippery slope’

#5
Deref5:28 pm, 13 Dec 13

It’s got potential, but don’t hold your breath. The current PM is a fundamentalist Catholic, so he’ll never put it forward while he holds the reins. The previous Labor PM claimed that she didn’t support it and pulled the phony conscience vote thing to ensure that it wouldn’t get through. Even with new leadership in both parties, it’s fairly clear that neither represents the views of the majority of Australians.

It’ll happen, but it’s going to be a long time.

#6
Deref5:36 pm, 13 Dec 13

FootyFan said :

Great article; also reminded of something else. It seems somewhat misleading for same-sex marriage advocates to refer to themselves as being for “marriage equality” if they claim marriage is only between two persons. What is their opposition to polygamy? Most of the arguments for same-sex marriage work equally well for polygamy (and its variations) yet the Greens and Australian Marriage Equality are both against polygymous marriages. Would add some consistency at least if they broadened their approach and would probably justify the term “marriage equality” which I feel is being misused.

Having said that, I don’t personally like the idea of polygamy (while I do support same-sex marriage). But that doesn’t really stand up well as an argument, so I’m leaning more towards saying that marriage should simply encompass any legal relationship, unless anyone has a good argument as to why same-sex marriage should be legalised but polygamy shouldn’t.

Very good points. The lead inexorably to the question “what’s the role of government in defining marriage”? If three or more consenting adults want to get married, why should government have any interest? Polygamy is certainly supported, indeed lauded, by the holy books of the major religions (in Australia). Not that, for an instant, I’m supporting everything that those horrible books support, but you certainly can’t put forward a legitimate religious argument anywhere within Christianity, Judaism or Islam.

Yes, there are legal questions that arise (who gets the car/house/kids/dog) in the event of a split, but I’d imagine that those things could be dealt with by some kind of contract. Wouldn’t that make more sense?

#7
bikhet6:07 pm, 13 Dec 13

I believe that Australian law already recognises polygamous marriage in some circumstances. If memory serves me well, which it may not, it is recognised in the case of immigrants who are already in a polygamous marriage.

Like FootyFan, I fail to see anything special in the number two.

#8
chewy147:25 pm, 13 Dec 13

Yep, at least the high court’s argument is logically consistent.

If we’re going to have “marriage” (and I don’t know why we are) then it should be for everyone. Let’s see if those marriage “equality” supporters actually support equality for everyone and not just same sex couples. Otherwise their calls of discrimination sound a bit hollow.

#9
ausbradr8:33 pm, 13 Dec 13

Alright so we know where we’re at? Good.

Let’s promptly have this passed by both houses at a Federal level, and let the GLBT community have their marriages.

With so many countries (see http://www.freedomtomarry.org/landscape/entry/c/international ) already allowing it. We can learn from other’s experience that this isn’t going to be a bad thing. As Australians, we’re not really that good at looking beyond our borders and learning from others, are we?

#10
gooterz8:38 pm, 13 Dec 13

Prediction

It’ll have to go to a referendum, public will have two choices:

Marriage equality

Or leave things alone.

Equality including polygamy and same sex.

Ultimately Australia will say no and it will be gone until 2025.

#11
BimboGeek11:29 pm, 13 Dec 13

Hang on you sexists! If we’re having polygamy then I also want polyandry.

#12
Spiral7:19 am, 14 Dec 13

We already allow polygamy or at least turn a blind eye to it. It is Apparently not uncommon amongst indigenous Australians

#13
miz10:51 am, 14 Dec 13

DTC said: “Before anyone jumps up and down, the are clear scientific/social arguments as to why some marriages should not be allowed eg to people under certain age, incestuous, etc. There is no ‘slippery slope’.”
I have a genuine question about the paedo ‘slippery slope’ aspect. Not trolling in any way, just seeking a considered answer from a legal perspective so I can explain why it is not a problem to the various religious people I know who trot the paedo floodgates line out regularly (you know, ‘next thing the paedos will be saying they are just another kind of sexual preference.’) Are there legal protections that this will never happen?

#14
chewy142:01 pm, 14 Dec 13

dtc said :

Before anyone jumps up and down, the are clear scientific/social arguments as to why some marriages should not be allowed eg to people under certain age, incestuous, etc. There is no ‘slippery slope’

Fair enough about the age limit but what’s different about incestuous marriages as long as the two (or more) people are over the age of consent? Remember that marriage has nothing to do with procreation as same sex proponents have correctly said and we don’t genetically test other people for potentially higher risks of birth defects in their children before letting them get married.
As the high court has found marriage is between natural persons.

You can’t logically be For same sex marriage on the grounds of equality whilst being against these other unions.

#15
Masquara2:28 pm, 14 Dec 13
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