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:
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…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.
[Photo by MartyO]