SAME-sex marriage hovered in the political background again this week as Caucus approved legislation to make Commonwealth vetoes of ACT and Northern Territory legislation more difficult. The only times the veto has been threatened or carried out has been over gay marriage and euthanasia.
It now seems a significant majority of Labor MPs support same-sex marriage and the matter will go before the ALP national conference later this year. Federal legislation could well follow.
Leaving aside human rights, moral questions and the difficult politics, same-sex marriage poses some very difficult constitutional questions for Australia. They are probably not well appreciated by many of its proponents or opponents.
I am not arguing here in favour or against same-sex marriages – just pointing out some of the constitutional difficulties.
You have to go back to the words of the Constitution. It says the Commonwealth Parliament has the power to make laws “with respect to marriage”.
Those words are crucial. They do not give the Parliament the power to define marriage, but only to make laws with respect to it.
The power to define words in the Constitution, including the word “marriage” is given by the Constitution to the High Court, and not to the Commonwealth Parliament.
Constitutionally, the Parliament is not like Humpty Dumpty in Lewis Carroll’s Through the Looking Glass, who said, “When I use a word, it means just what I choose it to mean — neither more nor less.”
It is not for the Commonwealth Parliament to widen its own powers by widening the definition of words in the Constitution. Otherwise, it could expand its powers indefinitely and the federation would be as nought.
The law passed in the term of the Howard Government that defined marriage as meaning “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”, therefore, is almost certainly invalid. I know this sounds odd, but it is not a law “with respect to” marriage. Rather it is a law attempting to define marriage.
As it happens, nothing turns on it. No-one rights are affected by it so the High Court could hardly entertain a case seeking a declaration of invalidity.
However, if the Federal Parliament passed a law saying that two members of the same sex could be joined in matrimony it would be a different matter.
In this instance rights would be affected. Blood relatives of the same-sex marriage would have their succession rights affected. If the “marriage” went sour, the rights and duties of the partners would be a whole lot different if they were married than if they were not.
Further, a whole lot of rights, duties and responsibilities arise under state legislation which are different for married people than they are for non-married people.
So here are three sorts of people who might want to argue that a same-sex union under new federal legislation was not a “marriage”.
The blood relatives or partner in a soured same-sex union might want to argue it is not a marriage and no marital obligations arise under it. A state government might have political or moral point to make and dress it up as a legal one to argue against the validity of a same-sex marriage.
These parties would argue that the Commonwealth law permitting same-sex marriages was not a law “with respect to marriage”, as the Constitution requires, but a law in truth attempting to redefine marriage when it is for the High Court interpret the words of the Constitution and define what they mean.
Certainly in 1901, “marriage” meant the union of a man and a woman. Does “marriage” still mean that? Here we enter constitutionally murky water. We cannot be stuck with what the Founding Fathers envisaged in 1901. The Constitution is, as the judges say, a living document.
Over time, words change in several ways. The classes of things they embrace can widen. Thus “transport” in 1901 did not included air travel. It does now. “Currency” in 1901 meant coins and notes; it now probably includes internet bank entries.
The meaning of words varies over time. “Beg the question” no longer means a circular argument; it means “gives rise to a question”.
Words can take on new meanings. Until 1985 a “mouse” was a rodent.
Courts interpreting Constitutions have to decide how the changing meaning of words affects the ambit of power described by those words. Does the Constitution’s grant of power to the Commonwealth with respect “lighthouses” now embrace satellite warning systems of all shipping hazards? We know that a grant of power does not allow the Commonwealth Parliament itself to decide what a lighthouse is so as to expand its power – say, by calling every building within five kilometres of the coast a lighthouse and then making everyone paint those buildings white.
But we know changing meaning and a changing world mean a change in what is covered by the power – the question is by how much.
Will the High Court decide that the word “marriage” in the Constitution now means the union of any person to any other person and that that new meaning expands the power? Or will the court hold that the word “marriage” in the Constitution meant then and means now only a union between a man and a woman? There will be plenty of litigants willing to test the field.
The problem does not arise in the US because its Constitution does not contain the word “marriage” and in the absence of a Federal power the states can do as they please on the marriage front – including defining marriage.
If the High Court holds that the word “marriage” in the Constitution does not include same-sex unions then same-sex unions can only be dealt with under state law, but the states cannot bind the Commonwealth and invest same-sex “spouses” with the same rights and duties under federal law (say tax or social security) as different-sex spouses.
This is a major bind for conservatives and liberals.
If same-sex unions are not marriages within the meaning of the Constitution then the Federal Parliament cannot prevent a state from endowing same-sex unions with recognition under state law.
Small-l liberals face the difficulty of legislation for same-sex marriages facing a successful High Court challenge. That would mean that any federal recognition of a same-sex union could not grant and impose rights and duties to that couple under state law – which includes succession, family provision and various others rights and duties.
As things stand, the states and the feds can legislate to give same-sex partners similar rights and duties as different-sex partners, but only within their own jurisdictions. And that does not satisfy same-sex couples would want the status of “marriage”.
The only way to overcome a High Court ruling that the Constitution requires “marriage” to be restricted to different-sex unions would be a referendum to change the Constitution making it clear that the word “marriage” means the union of any two people.
In the present climate of an increasingly whingeing, selfish, consumer-oriented, narrow, frightened, non-empathetic Australia such a prospect is remote.
CRISPIN HULL
This article first appeared in The Canberra Times on 20 August 2011.
The Marriage Act has been stuffed around enough since Biblical times when all you needed to do to add another wife to your list of belongings was sleep with her. For this reason it is considered a sin worthy of death for a raped woman to marry for many fundamentalist religions.
Now since you have already “got it”, you are happy with the way things are and don’t want them to change, simply because they happen to suit you and your life. The very fact that you feel marriage would be cheapened if same sex couples were allowed the right, suggests that your very boundaries of marriage are barely supported – what someone else does affects the vows you took to marry the person you love. If you don’t want gay marriage, don’t get one!
Elcid,
I really don’t care whether you call your boyfriend your husband. I cannot lay claim to fat kids or battered wives. They are not part of my life. If you as a homosexual want equality under Australian law, go for it. I really don’t give a rats. I don’t care if you accept my God or not. That is not what my argument is about. I am a happily married man (to a woman) and object to the sacrament of marriage being cheapened by including same sex persons. That is not what marriage is about. Think and look deeper than the gimme now, I want it because they have it mentality that is so prevalent these days. Create your own form of marriage, just don’t stuff with the Marriage Act.
You overstate the legal issue here. While it is true the high court will ultimately decide on the constitutionality of a law, the idea that it would overrule an attempt to extend the marriage laws to same sex relationships is risible.
Here’s the bit I don’t understand. Pressure groups like australianmarriageequality.org have fielded several Galaxy polls which, they say, show that Australians are quite supportive of redefining marriage to include same sex partnerships. So, why wouldn’t they get behind a national referendum?
Dear Sir,
You state that there are grounds for complaints by family of same sex couples because marriage confers new rights not available to DeFacto couples.
Could you please elaborate on this point because same sex couples under a DeFacto recognition have access to succession, property and a range of other rights that in many cases puts them on an equal footing to married couples under both federal and state laws…
It seems your research is poor or you have not clearly explained your meaning.
Firstly, as a gay man in favour of same-sex marriage, I take offence to the proposition that same-sex marriage is an attempt to destroy the fabric of modern society by cheapening the value of the family unit. You’re giving me way too much credit for the damage that heterosexuals have bestowed upon society in their own time at the helm of “marriage”. “Divorce rates” are yours, “childhood obesity” is yours, “abusive households” are yours, “battered women” are yours. And you did all that without our gay help, so congrats. Further, if I live in this society, why would I want to destroy it? Your argument makes no sense.
Secondly, my family is as valid as yours: end of story.
Lastly, in Australia, same-sex defacto couples are entitled to all rights and privileges that opposite-sex defacto couples and married couples are entitled to in Australia. We are equal (whether you like it or not) in immigration, social security, succession, adoption, tax law, superannuation, medicare and on and on.
Don’t like it when I call my same-sex partner my husband? Get over it. It is what it is. Encouraging more couples to stay together instead of being forced to live as singles for the rest of their lives isn’t going to destroy any thing (if anything it opens up the housing market). In fact, it only makes society more stable. I don’t want to change your mind; you can’t win an argument against someone who thinks they speak for “God”. However, I can say this: equality always wins out, and no, we won’t leave it alone. It means too much to us. I know it’s an Aussie tradition to say only 2% of the population isn’t worth caring about (thus your abysmal records on Aboriginals), but in the end equality always wins out.
Not a bad article until I read the last line. Has it occured to you that there might be other reasons that people might reject gay marriage besides fear or selfishness? Perhaps they fear marriage will be tarnished by opening it up to all and sundry. The reality is that the majority of the population doesn’t want 2% of the population despoiling what has for millennia been shared between a man and a woman. Gay marriage is yet another attempt under the guise of “equality” to destroy the fabric of modern society by cheapening the value of the family unit. Gay marriage will eventually happen, such is the persistance of the socialist green left and I believe we will all be the poorer. Please just leave it alone.