One cheer for the ACT

Two federal systems, two advances for same-sex marriage. In the United States, the state of New Jersey has held its first weddings for same-sex couples; Governor Chris Christie dropped his appeal against a lower court decision requiring marriage equality after losing seven-nil a bid for a delay. And the Australian Capital Territory voted yesterday to approve legislation for same-sex marriage, the first jurisdiction in Australia to do so.

As a former resident of New Jersey, I’m unreservedly pleased about the first development. New Jersey becomes the 14th US state to allow same-sex marriage, and with several more in the pipeline this now looks like an unstoppable trend.

I’m much less enthusiastic about the ACT move. To see why, first go back and read what I wrote about the issue back in April and in July:

For a federal system to work, we have to have some reasonably clear division of responsibility between levels of government. A system where anyone can legislate about anything, and discontented lobbyists can “forum shop” until they find a level willing to take up their cause, isn’t a federation, it’s just a mess.

The basic difference is that in the US system, marriage is clearly a state responsibility. In Australia, however, the federal government has the constitutional power to enact nationwide laws relating to marriage and family matters, a power it has exercised in the Marriage Act 1961 and the Family Law Act 1975.

If we believe in federalism (or democracy, or separation of powers, or any other constitutional doctrine), we should support it even when it produces particular results that we don’t like. I think that section 5(1) of the Marriage Act, amended by the Howard government to define marriage as “the union of a man and a woman …”, is bad policy, but it was within the powers of the federal parliament to enact it.

It’s possible that George Williams and the ACT government have devised a form of words that will somehow slip by the High Court as not incompatible with the federal law, although personally I think that’s very unlikely. But even if they have, the federal parliament can easily remedy that defect by making the ban on same-sex marriage even more explicit than it already is.

The best argument (indeed, I think the only good argument) for the ACT legislation is that by creating an almighty confusion in the family law field it will put pressure on the federal parliament to act to allow same-sex marriage nationwide. But given the remarkable power of the religious right within both of our major parties, that seems to me an excessively optimistic view. It’s at least as likely that any federal intervention will amount to going backwards, not forwards.

Moreover, constitutional blackmail is a dangerous game. Threatening to create chaos to achieve your aims is usually not a good way to win friends, and it poses the very real risk of yielding the moral high ground to your adversaries. The opponents of same-sex marriage now have the opportunity to appear as defenders of constitutional order, rather than as bigots.

Of course, as a supporter of marriage equality, I can’t help also feeling pleased at the support given to the cause in the ACT and the way in which the fundamental rights of some of Canberra’s citizens have at last been recognised. I don’t like to be seen to pour cold water on their celebration.

But this particular celebration, at least, needs to be tempered with a recognition that in terms of the larger goal of equality nationwide it may well turn out to be counter-productive.