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Same-sex marriage and the High Court: previewing the arguments

By johnboy - 2 December 2013 16

gay marriage

By Anne Twomey, University of Sydney

This week, the High Court will begin hearing the Commonwealth’s challenge to the ACT’s Marriage Equality (Same Sex) Act 2013. But don’t expect lofty rhetoric about equality; the case is really about the inconsistency of laws, not human rights.

In addition to the Commonwealth and the ACT, Australian Marriage Equality (AME) has also applied to be heard in the proceedings. Interestingly, no state has decided to intervene.

Commonwealth arguments

The Commonwealth’s submissions show that it will argue that the Commonwealth parliament has the power to legislate in relation to all forms of marriage.

While it recognises that the full scope of the marriage power in the Constitution has not yet been determined, it argues that:

…the better view is that the constitutional concept of “marriage” includes a marriage between members of the same sex.

However, the Commonwealth argues that its Marriage Act 1961 was intended to cover the entire field of marriage in Australia to the exclusion of any state or territory laws on the subject, and that the ACT law is therefore invalid for trespassing into this field. The Commonwealth contends that:

…it is not open under the law of Australia for any other legislature to purport to clothe with the legal status of marriage (or a form of marriage) a union of persons, whether mimicking or modifying any of [the] essential requirements of marriage.

The Commonwealth’s submissions also assert that the Marriage Act prevents a state or territory from conferring the legal status of marriage or a form of marriage on a union of people that would not be valid under the Commonwealth law. This may be because one of the parties is under age, or lacks capacity, or is already married, or the marriage is to expire after a fixed period, or the parties are closely related or of the same sex.

While it accepts that a state or territory can confer rights on couples, including same-sex couples, “as if they were married”, it contends that this still amounts to recognition that they are not legally “married”.

ACT arguments

The ACT, on the other hand, contends that the Commonwealth’s Marriage Act deals only with the legal status of opposite-sex couples and that it does not prohibit or exclude laws conferring the status of marriage on others, including same-sex couples, or a status that is intended to equate to marriage.

In 2004, the Commonwealth passed the Marriage Amendment Act 2004, which defined marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. One of the ACT’s arguments is that this law narrowed the field of the Commonwealth’s Marriage Act, opening up the field of same-sex marriage for the states and territories to legislate within.

The issue is one of intention. If one looks to the extrinsic materials, the explanatory memorandum to the 2004 Act stated that the intention was:

…to protect the institution of marriage by ensuring that marriage means a union of a man and a woman and that same-sex relationships cannot be equated with marriage.

The ACT argues, however, that this intention was not made out in the provisions of the Act. While it may have prohibited recognition of overseas same-sex marriages as “marriages” in Australia, it did not expressly prohibit same-sex marriages under the law of other jurisdictions in Australia.

Australian Marriage Equality arguments

The AME’s submissions argue that the status conferred by the ACT Act is different from marriage. They contend that the mere use of the word “marriage” does not indicate that the status is the same. They point to the terms “de facto marriage” and “common law marriage”, which really mean that the relationship is not a marriage.

They argue that the preceding words – “de facto”, “common law” or “same-sex” – “serve to distinguish the status from marriage”. They conclude that as the ACT is legislating about something different from marriage, it is not inconsistent with the Commonwealth’s Act.

What makes Canberra different

The ACT submissions primarily hang on a unique technicality. Its laws are subject to a differently worded inconsistency provision than that which applies to the states or other territories.

Section 28 of the ACT (Self-Government) Act 1988 states that a provision of a territory law has no effect to the extent that it is inconsistent with a Commonwealth law, but that the territory provision shall be taken to be consistent with the Commonwealth law:

…to the extent that it is capable of operating concurrently with that law.

The ACT claims that this means territory laws can operate concurrently with Commonwealth laws as long as there is no direct inconsistency. While state laws will also be invalid if they intrude into a field that the Commonwealth law intends to cover completely and exhaustively, it is argued that this does not apply to ACT laws.

The effect, according to the ACT, is that its Marriage Equality (Same Sex) Act can operate fully in parallel with the Commonwealth’s Marriage Act without any direct inconsistency arising, because the institution of same-sex marriage is different from that of marriage under the Marriage Act.

The issue about the application of the ACT’s inconsistency provision is the dark horse in this case. There is very little authority on the subject and surprisingly, given the significance of this distinction, there seems to be no discussion of the intent behind it in either parliament or the numerous reports that preceded self-government.

This leads to interesting speculative conclusions. Perhaps it was a drafting error or was intended to be cancelled out by the Commonwealth’s disallowance provision. Alternatively, it might simply mean that ACT laws should be read down to avoid inconsistency with Commonwealth laws so that they can operate concurrently.

If the ACT’s Marriage Equality (Same Sex) Act is upheld solely on the basis of this different inconsistency provision, it would mean that same-sex marriage in Australia would only be available and valid in the ACT. Equivalent laws could not be enacted in any other state or territory.

It would not give rise to “marriage equality”, but rather – as the AME argues – a status that is “not marriage”. A pyrrhic victory perhaps, but no doubt it is simply intended to be a battle in a bigger war.

Anne Twomey receives 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 Pargon CC BY 2.0]

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16 Responses to
Same-sex marriage and the High Court: previewing the arguments
c_c™ 7:20 pm 03 Dec 13

Roundhead89 said :

It is significant that whenever a referendum is held anywhere in the world on this issue, the result is always a decisive no vote. Even in supposedly liberal California – the location of San Francisco and the Castro district – the 2008 referendum saw a ban on same sex marriage approved. It shows a huge disconnect between what people say in opinion polls and what happens when they enter the privacy of the polling booth.

http://fivethirtyeight.blogs.nytimes.com/2013/03/26/how-opinion-on-same-sex-marriage-is-changing-and-what-it-means/?_r=0

Holden Caulfield said :

Regarding the Marriage Amendment Act 2004 and its explanatory note that it is: “…to protect the institution of marriage by ensuring that marriage means a union of a man and a woman and that same-sex relationships cannot be equated with marriage.”

How can the Commonwealth claim to have jurisdiction over “all forms” of marriage if it defines it in such a narrow and finite way? By definition the Marriage Amendment Act states there is only one form or marriage, not forms.

The fact that amendment got through as recently as 2004 is quite disappointing too.

Hopefully the High Court will understand the vibe and rule against the Commonwealth.

Alternately, if the ACT law is thrown out could it be a case of losing a battle to win the war? Could such a result not give momentum to redefining the Commonwealth Marriage Act so that it is more inclusive?

The only way I can see marriage being restricted to being a union between a man and a woman is on religious belief. While I acknowledge and understand much of our laws and way of life are based on Christian leanings, in this instance, the state should be separate from any religious restrictions and afford equal rights to all of its citizens.

Which kind of makes Twomey’s assertion that this is not about human rights a bit churlish. In the strict legal terms she may be right, but would the Commonwealth ever have stuck its nose into the ACT’s business if it didn’t want to stop blokes marrying blokes or chicks marrying chicks?

Twomey’s article isn’t good, but then her commentary on the issue has been quite poor and timid.

Re how the Cth can claim jurisdiction over all forms, well they don’t have to. They need only claim coverage of the subject area, it’s the difference between this and the subject matter that the ACT is trying to rely on.

gazket 5:13 pm 03 Dec 13

CrocodileGandhi said :

Roundhead89 said :

It is significant that whenever a referendum is held anywhere in the world on this issue, the result is always a decisive no vote. Even in supposedly liberal California – the location of San Francisco and the Castro district – the 2008 referendum saw a ban on same sex marriage approved. It shows a huge disconnect between what people say in opinion polls and what happens when they enter the privacy of the polling booth.

The difference is that when a pollster calls you in your own home, it is not preceded by a grossly innacurate and inflammatory campaign, mostly financed by religious groups, as was seen in the Californian case. The Mormon church spent close to $100 million plastering California with telelvision ads that started with the line “There is a storm coming, and I am afraid”. It’s nice to have all that extra money sitting around from your favourable tax status to then disproportionately influence the political debate in order to uphold your bigotry.

at least the Mormons spent their own money, not like you leeches sponging of taxpayer money forcing the issue.

Holden Caulfield 5:10 pm 03 Dec 13

Robertson said :

pajs said :

Robertson said :

Roundhead89 said :

It is significant that whenever a referendum is held anywhere in the world on this issue, the result is always a decisive no vote.

So, we have our City council pushing a legislative agenda that is both unrelated to its core functions of providing roads, education, water, healthcare and garbage collection and would be rejected by a referendum, AND they will soon be tripling our rates to pay for it.

How awesome. Gotta love Democracy.

Could you explain how same sex marriage will triple our rates? I’ve not heard that claim before.

Who is paying for the lawyers our City Council has retained to appear to defend against this challenge?

ACT Ratepayers. Completely unacceptable use of our money.

In the small minds of some, perhaps.

Deref 4:13 pm 03 Dec 13

johnboy said :

The High Court isn’t ruling on whether they support gay marriage.

True indeed. But the Constitution, like any written document, is open to wide interpretation. The attitudes of the judges on the bench will largely determine how they interpret it in this case and how that interpretation should be applied. The US Supreme Court (their equivalent to our High Court) beautifully illustrates how judges appointed by extreme “conservatives” almost always vote in accordance with the views of the President who appointed them. Note the “almost”. Fortunately our High Court isn’t quite as politicised – yet.

Robertson 3:58 pm 03 Dec 13

pajs said :

Robertson said :

Roundhead89 said :

It is significant that whenever a referendum is held anywhere in the world on this issue, the result is always a decisive no vote.

So, we have our City council pushing a legislative agenda that is both unrelated to its core functions of providing roads, education, water, healthcare and garbage collection and would be rejected by a referendum, AND they will soon be tripling our rates to pay for it.

How awesome. Gotta love Democracy.

Could you explain how same sex marriage will triple our rates? I’ve not heard that claim before.

Who is paying for the lawyers our City Council has retained to appear to defend against this challenge?

ACT Ratepayers. Completely unacceptable use of our money.

johnboy 2:47 pm 03 Dec 13

The High Court isn’t ruling on whether they support gay marriage.

Deref 2:46 pm 03 Dec 13

We can only hope that the High Court judges are a little more enlightened and intelligent than the hate-filled aresholes opposing this legislation.

pajs 1:06 pm 03 Dec 13

Robertson said :

Roundhead89 said :

It is significant that whenever a referendum is held anywhere in the world on this issue, the result is always a decisive no vote.

So, we have our City council pushing a legislative agenda that is both unrelated to its core functions of providing roads, education, water, healthcare and garbage collection and would be rejected by a referendum, AND they will soon be tripling our rates to pay for it.

How awesome. Gotta love Democracy.

Could you explain how same sex marriage will triple our rates? I’ve not heard that claim before.

Holden Caulfield 12:06 pm 03 Dec 13

dtc said :

So if the Cth wins, it does so by agreeing that marriage can include same sex marriage, just that the Cth has decided it wont at the moment. But if the Cth changes its mind, then there is no re-defining required.

That’s what I would have initially thought, but the Marriage Amendment Act 2004 seems to counter that position:

http://www.austlii.edu.au/au/legis/cth/num_act/maa2004165/sch1.html

Robertson 11:56 am 03 Dec 13

Roundhead89 said :

It is significant that whenever a referendum is held anywhere in the world on this issue, the result is always a decisive no vote.

So, we have our City council pushing a legislative agenda that is both unrelated to its core functions of providing roads, education, water, healthcare and garbage collection and would be rejected by a referendum, AND they will soon be tripling our rates to pay for it.

How awesome. Gotta love Democracy.

dtc 11:36 am 03 Dec 13

Roundhead89 said :

DUB said :

Perhaps, the Government should hold a referendum on such issue , such as the one that was very recently held in Croatia ( http://www.bbc.co.uk/news/world-europe-25172778).
I am sure that the result will be the same as the one in Croatia. This is a fine example of true democracy, you can’t force bulls*** laws and spend public money to defend it. You want same sex marriage-move to Netherlands.

It is significant that whenever a referendum is held anywhere in the world on this issue, the result is always a decisive no vote. Even in supposedly liberal California – the location of San Francisco and the Castro district – the 2008 referendum saw a ban on same sex marriage approved. It shows a huge disconnect between what people say in opinion polls and what happens when they enter the privacy of the polling booth.

California was 52 – 48 (so not really ‘decisive’) and, as much as SF is a ‘liberal’ disctrict, much of interior California is traditional agricultural and much more religious than Australia. Croatia, well, not a society particularly enamoured of let us say ‘alternative’ male identities (and is also much more religious than Australia). Much like, to draw generalities, the African American culture that voted 70-30 against same sex marriage in California. Not to say that Australia will vote any differently, but I like to think that we are someone more rational and not guided by an invisible god or an ‘its just icky’ belief. As HC said, the only argument against same sex marriage is religious, there are no other rational arguments (religion and rationality? Well, at least arguing against something based on your religious belief is rational, even if the underlying belief is not mine).

What I find interesting is the Cth argument “the constitutional concept of “marriage” includes a marriage between members of the same sex.” ie: the word ‘marriage’ includes both hetero and same sex marriage. So to argue that same sex marriage requires a re-defining of the traditional concept of marriage is, according to the Cth, incorrect.

So if the Cth wins, it does so by agreeing that marriage can include same sex marriage, just that the Cth has decided it wont at the moment. But if the Cth changes its mind, then there is no re-defining required.

If the ACT wins, it does so by saying that same sex marriage is different to hetero marriage, in a legal sense, and that the Cth has therefore not legislated (or perhaps has no right to legislate) in respect of same sex marriage.

A bit arse about really

CrocodileGandhi 11:21 am 03 Dec 13

Roundhead89 said :

It is significant that whenever a referendum is held anywhere in the world on this issue, the result is always a decisive no vote. Even in supposedly liberal California – the location of San Francisco and the Castro district – the 2008 referendum saw a ban on same sex marriage approved. It shows a huge disconnect between what people say in opinion polls and what happens when they enter the privacy of the polling booth.

The difference is that when a pollster calls you in your own home, it is not preceded by a grossly innacurate and inflammatory campaign, mostly financed by religious groups, as was seen in the Californian case. The Mormon church spent close to $100 million plastering California with telelvision ads that started with the line “There is a storm coming, and I am afraid”. It’s nice to have all that extra money sitting around from your favourable tax status to then disproportionately influence the political debate in order to uphold your bigotry.

Roundhead89 11:05 am 03 Dec 13

DUB said :

Perhaps, the Government should hold a referendum on such issue , such as the one that was very recently held in Croatia ( http://www.bbc.co.uk/news/world-europe-25172778).
I am sure that the result will be the same as the one in Croatia. This is a fine example of true democracy, you can’t force bulls*** laws and spend public money to defend it. You want same sex marriage-move to Netherlands.

It is significant that whenever a referendum is held anywhere in the world on this issue, the result is always a decisive no vote. Even in supposedly liberal California – the location of San Francisco and the Castro district – the 2008 referendum saw a ban on same sex marriage approved. It shows a huge disconnect between what people say in opinion polls and what happens when they enter the privacy of the polling booth.

DUB 10:48 am 03 Dec 13

Perhaps, the Government should hold a referendum on such issue , such as the one that was very recently held in Croatia ( http://www.bbc.co.uk/news/world-europe-25172778).
I am sure that the result will be the same as the one in Croatia. This is a fine example of true democracy, you can’t force bulls*** laws and spend public money to defend it. You want same sex marriage-move to Netherlands.

Holden Caulfield 10:24 am 03 Dec 13

Regarding the Marriage Amendment Act 2004 and its explanatory note that it is: “…to protect the institution of marriage by ensuring that marriage means a union of a man and a woman and that same-sex relationships cannot be equated with marriage.”

How can the Commonwealth claim to have jurisdiction over “all forms” of marriage if it defines it in such a narrow and finite way? By definition the Marriage Amendment Act states there is only one form or marriage, not forms.

The fact that amendment got through as recently as 2004 is quite disappointing too.

Hopefully the High Court will understand the vibe and rule against the Commonwealth.

Alternately, if the ACT law is thrown out could it be a case of losing a battle to win the war? Could such a result not give momentum to redefining the Commonwealth Marriage Act so that it is more inclusive?

The only way I can see marriage being restricted to being a union between a man and a woman is on religious belief. While I acknowledge and understand much of our laws and way of life are based on Christian leanings, in this instance, the state should be separate from any religious restrictions and afford equal rights to all of its citizens.

Which kind of makes Twomey’s assertion that this is not about human rights a bit churlish. In the strict legal terms she may be right, but would the Commonwealth ever have stuck its nose into the ACT’s business if it didn’t want to stop blokes marrying blokes or chicks marrying chicks?

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