‘A union the law recognises as intended to endure and be terminable only in accordance with law, … to which the law accords a status affecting and defining mutual rights and obligations.’
Some of you may be asking ‘what the hell does that mean?’ and some of you may be nodding your heads. This is the definition of marriage in Section 51 xxi of the Australian Constitution. As you may be aware, whether this section applies beyond the confines of a heterosexual relationship has been a heavily debated issue.
Recently, a coalition of Labor and Greens parliamentarians in the Australian Capital Territory joined forces to pass an historic piece of state legislation, the Marriage Equality (Same Sex) Act 2013. This sadly short-lived piece of legislation provided for the first same-sex marriages to be performed from 7th December onwards.
Immediately after the bill was passed through the ACT parliament, the federal Liberal-National government set to challenge the legislation on constitutional grounds in the High Court. Along with the ACT Solicitor-General Peter Garrison, both lawyered up to defend the choices of the ACT parliament.
For those unfamiliar, the law-making power in regards to marriage is codified within the Constitution as shared concurrently between the Commonwealth and the State Parliaments. Federal legislation has the ability to set certain parameters within the definition of marriage (e.g., the sex of those that may wed), and state-based legislation is generally bound by those parameters. State legislation that is incompatible with its federal counterpart makes itself liable for legal action – and since marriage is defined as between a man and a woman federally, and between any two people in the ACT, this qualified the High Court’s Constitutional challenge.
Inescapably, the High Court decided against the ACT legislation, deeming it to be ‘of no effect’, and that those prior marriages were ‘dissolved’. Their Honours following the reasoning that the federal Marriage Act 1961 did not provide for the ‘formation or recognition of marriage between same sex couples’, as it only listed marriage as that between a man and a woman (following specific amendments made to the Act by the Howard Government in 2004). Additionally, they determined that the federal legislation bars the recognition of same-sex marriages from a foreign jurisdiction.
However, hidden in the words of the High Court was a silver lining. The court determined that marriage within the meaning of the Constitution ‘includes a marriage between persons of the same sex’, and thus gives the ability for a federal parliament to legislate to include same-sex marriages as legal through an amendment to the current laws.
So, it’s now up to the Coalition to legislate against the so-called ‘federal ban on equal marriage’, and this writer is not holding his breath. Whilst I will admit that comparatively progressive voices for equal marriage, such as Malcolm Turnbull, exist within the party, others such as Senator Cory Bernardi are ardently pushing a harsher agenda of marriage as hetero-only. In fact, Senator Bernardi called for Malcolm Turnbull’s resignation from the federal cabinet for his equal marriage advocacy – this hardly allows a platform for party reform. Additionally, the ability to vote as individual parliamentarians is still denied to the Coalition on this issue, and in accordance with its national platform, the party’s members are bound to vote down these amendments.
On a final note, Tony Abbott recently sent a message to Christian Democratic MP Fred Nile on his wedding to his second wife Silvana Nero on 14th December, congratulating the 70 year old on his marriage to a woman 15 years his senior. Hopefully one day, he and his party may reconsider their stance, as British Prime Minister David Cameron and the Conservative Party did in July this year, and allow marriage, the ‘profound, rich and fulfilling journey’ that Tony Abbott described, to be allowed to all people – regardless of their sex, gender, or sexual orientation.
