Same-sex marriage vs federalism

There are a few reasons why the same-sex debate in America is so messy. One is the country’s religiosity, so different from the rest of the developed world. But another is the fact that marriage is a state responsibility, so the issue becomes entangled with debates about the proper limits of state and federal power.

Which makes it interesting to read a story in this morning’s Canberra Times on the ACT government’s plan to legalise same-sex marriage in the territory. As Peter Jean explains, “the Family Court, which is responsible for divorce cases in Australia, would not have the jurisdiction to dissolve same-sex marriages made under ACT law” – so the ACT would have to administer its own divorce law in relation to same-sex marriage, while opposite-sex marriages still went to the (federal) Family Court.

You might think that this would give the territory government reason to stop and think about what it might be getting itself into. But attorney-general Simon Corbell is quoted saying that “A same-sex marriage bill is currently being developed” and pledging “the support of this government for full marriage equality for same-sex couples.”

Readers will know that I am a strong supporter of marriage equality. But I have to say that I think the plan for states and territories to go it alone on same-sex marriage (Tasmania made the attempt last year, but its bill was defeated in the upper house) is deeply misguided.

To put it bluntly, don’t we already have enough policy areas blighted by confusion between state and federal responsibilities, or by one level of government sticking its oar into something that doesn’t concern it? A partial list would include roads, schools, hospitals, universities, national parks, income tax and industrial relations. (Stephen Mayne in yesterday’s Crikey wants to add local government to the list – more about that some other time.)

Unlike in the US, the Australian constitution gives the federal government power to legislate about marriage. Section 51, which recites the powers of the federal parliament, includes both “marriage” (xxi) and “divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants” (xxii).

It’s quite true that section 51 doesn’t purport to give the federal parliament exclusive powers: the states can still legislate in areas that the feds have left open. But in case of conflict, section 109 lays down that commonwealth law will prevail.

It seems to me that the reasonable view is that a state or territory law for same-sex marriage would conflict in just that way with the federal Marriage Act and Family Law Act. But even if a clever lawyer were able to argue around that conclusion, should they? Isn’t it obvious that having rival systems for defining marriage in the same state or territory is a bad idea?

Somehow we have to start getting away from this idea that ignoring sensible constitutional practice is wicked and dangerous when the other side does it, but nothing at all to worry about when it’s practised by people we agree with. Same-sex marriage would be as good a place as any to start.

In the United States, the federal government (in my view) disgraced itself with the Defense of Marriage Act in 1996. But to be fair, when something like that is being decided at state level, it’s impossible for the federal government to stay out of the debate entirely. It has to say something, if only by default, about what’s to be done when state laws clash and how federal employees are to be treated.

Australia’s states have no such excuse. Just as with most of the other topics in section 51 – quarantine, censuses, bankruptcy, naturalisation, relations with the Pacific islands, and so on – the federal government, for good or ill, has taken on the field of marriage for itself. That’s where the battle for equality has to be fought: the states, for their own good, should stay out of it.




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