High Court just doing its job

A lot of lawyers had creative arguments for why a state or (perhaps even more so) a territory could legalise same-sex marriage in its part of Australia, even though the federal parliament had legislated quite firmly to say that marriage is “the union of a man and a woman.”

But they cut no ice with the High Court, which ruled unanimously today in Commonwealth v. A.C.T. that the Marriage Equality (Same Sex) Act 2013 of the Australian Capital Territory was void in its entirety.

Bloggers should probably refrain from the temptation to say “I told you so”, but this is the outcome I have repeatedly predicted. In July I said that the argument for the law’s validity “would be given short shrift by the High Court,” and in October I described the idea that the ACT had “devised a form of words that will somehow slip by the High Court as not incompatible with the federal law” as “very unlikely”.

More interesting is the logic used by the court (although we don’t yet have the full reasons, just the press release). A crucial step was the finding that marriage was just a single area of law, not two separate areas for same-sex and opposite-sex (which would have left open the possibility that the commonwealth had deliberately vacated the former).

In making that finding, it offered something like a definition of marriage:

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.

That suggests rather strongly that something doesn’t have to be actually labelled “marriage” in order to come within the ambit of section 51(xxi). And that in turn means there would have been no barrier to the federal parliament following the lead of Britain and creating a system of civil partnerships that amounted to same-sex marriage in all but name.

I’ve argued before that this is exactly what the Rudd government should have done when it came to office; a compromise position would have been in keeping with public opinion at the time, and after a few years it could have been quietly upgraded to full-strength “marriage” (as has in fact happened in Britain). But an argument made against that was that federal power extends only to marriage so called, and therefore could not have been used to create civil partnerships.

On the basis of today’s decision, that argument would have failed.

But of course that particular train left the station a long time ago; there’s no way that a compromise on same-sex marriage could work now. What’s required is a recognition by both sides of politics that this is an idea whose time has come, with speedy bipartisan legislation to allow same-sex marriage across the country. As the High Court has made clear, nothing less will do.

Today’s Crikey editorial puts it very well:

So don’t blame the court. Blame the man who rewrote the laws, John Howard, to protect against this very move. And blame the man who now leads the Coalition, Tony Abbott, who refuses to give his members a say in changing the law — killing the issue stone dead until he does.

 

*UPDATE 5pm same day*

The full text of the High Court decision is now available online. It agrees very much with what’s in the press release. It’s particularly worth quoting the court’s reaction to the argument that a territory has more freedom to legislate in this sort of area than a state would (paras 50-51):

Some argument was directed in this matter to whether, and to what extent, the effect of s 28 of the Self-Government Act differs from the operation of s 109 of the Constitution. …

The Territory submitted that “[i]n circumstances where the [federal] Parliament appears to have intended that the Commonwealth law shall be a complete statement of the law governing a particular relation or thing”, s 28 requires that “the Territory law would not be inconsistent with the Commonwealth law to the extent that the former was capable of operating concurrently with the latter”. How a Territory enactment could operate concurrently with a federal law which is a complete statement of the law governing the relevant relation or thing was not explained.