The Pyrrhic-est of Pyrrhic “victories” for the anti-equality side

There’s a lot of sadness around the country after the High Court today overturned the ACT’s same-sex marriage legislation. Tony Abbott’s government succeeded in annulling the marriages of those 27 same-sex couples who married in the ACT over the weekend. It’s difficult to imagine how horrible it would be, a few days into your honeymoon, to have the government of your country succeed in declaring that your marriage doesn’t count at all.

However. Today’s ruling is actually a huge win for Marriage Equality.

To explain why, let’s quickly review the situation.

Australia has a federal system of government. The old States came together at the end of the 19th century and their people agreed to give a new Commonwealth Government certain powers, listed in section 51 of the Constitution. On those matters, the federal government can pass laws and if there’s a conflict between them and a state law, the federal law prevails (s109).

Marriage is one of those powers (s51xxi and s51xxii).

Between 1901 and today, the understanding of marriage has clearly changed. For one thing, it’s no longer “for life”. For another, you don’t need the permission of your spouse to divorce. The question as far as passing laws on marriage equality in Australia is concerned has always been – does “marriage” as defined in the Constitution include same sex marriage or not? Is it the whole subject of any possible interpretation of “marriage”, or is it only what marriage was in 1901?

There were three possible answers:

1. The Federal Government has complete power to legislate on marriage, including to pass laws accepting same sex marriage;
2. The Federal Government only has power to legislate on “1901 marriage”, ie heterosexual marriage, which leaves laws on same sex marriage to the states; or
3. The Constitution has established marriage as heterosexual marriage, the definition almost certainly in the minds of the drafters in 1901, which means neither the federal government NOR the States can pass marriage equality legislation and the only way to do so would be with a referendum.

If the answer was 3, it’d push back marriage equality by a decade or more. Referenda are very difficult to pass in Australia. (This option was very unlikely, but advice from expert practitioners in Constitutional law was that it was possible.)

If it was 2, and the ACT laws had stood, then it would have been a slow process of waiting for states to pass same sex marriage laws around the country. GLBTI people in Queensland and WA, for example, would have been waiting a very long time. In the meanwhile, we’d have had a hodge-podge of inconsistent marriage laws around the country. Worse, it would have been established that the only way to have a national system is getting all the states to sit down together and agree to one. You can imagine when we’d have seen that.

The best answer has always been 1. And that’s the answer we got today. The High Court bent over backwards to clarify that same sex marriage IS DEFINITELY ALLOWED BY OUR CONSTITUTION:

9. This Court must decide whether s 51(xxi) permits the federal Parliament to make a law with respect to same sex marriage because the ACT Act would probably operate concurrently with the Marriage Act if the federal Parliament had no power to make a national law[5] providing for same sex marriage. If the federal Parliament did not have power to make a national law with respect to same sex marriage, the ACT Act would provide for a kind of union which the federal Parliament could not legislate to establish. By contrast, if the federal Parliament can make a national law providing for same sex marriage, and has provided that the only form of marriage shall be between a man and a woman, the two laws cannot operate concurrently.
10. These reasons will show that the Commonwealth and the Territory were right to submit that s 51(xxi) gives the federal Parliament power to pass a law providing for same sex marriage.
11. All arguments to the contrary of the conclusion that s 51(xxi) would support a law providing for same sex marriage begin by referring to what is asserted to have been the settled understanding of the meaning of “marriage” at the time of federation. It is said that, at federation, “marriage” was well understood to have the meaning given to it by several nineteenth century English cases and that the reference to “marriage” in s 51(xxi) must be read accordingly. That is, reference is made to the nineteenth century judicial definitions of marriage on the footing that s 51(xxi) uses a legal term of art, the particular content of which is fixed according to its usage at the time of federation…

15. In Attorney-General (Vict) v The Commonwealth (“the Marriage Act Case”), Windeyer J rightly emphasised[13] that the scope of the powers which the Constitution gives is “not to be ascertained by merely analytical and a priori reasoning from the abstract meaning of words”. (Although Windeyer J dissented from some of the conclusions reached by the Court in the Marriage Act Case, this approach to constitutional construction is wholly orthodox[14].) No doubt, as Windeyer J observed[15], the Constitution was “written in language expressive of the concepts of [English] law” and “[c]onstitutional interpretation is affected by established usages of legal language.” But when s 51(xxi) gives the Parliament legislative power with respect to “marriage”, it gives legislative power with respect to a status, reflective of a social institution, to which legal consequences attach and from which legal consequences follow. In the Marriage Act Case, Dixon CJ said[16] of s 51(xxi) that it covers “the status of the married parties”, that is, “the particular legal position they hold by reason of their married state”. His Honour continued[17], “‘marriage’ is considered as the source of the mutual rights and of the legal consequences which flow from it but requiring the definition, the support and the enforcement of the federal law”.
16. The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable. Section 51(xxi) is not to be construed as conferring legislative power on the federal Parliament with respect only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation.
17. One obvious change in the social institution of marriage which had occurred before federation is revealed by reference to the elements which Quick and Garran described as being of the “essence” of marriage, namely that the union be “the voluntary union for life of one man and one woman to the exclusion of all others”[18] (emphasis added). By the time of federation, marriage could be dissolved by judicial decree of the civil courts. With the enactment of the Matrimonial Causes Act 1857 (UK)[19], and equivalent legislation in the Australian colonies[20], marriage became a voluntary union entered into for life. It was no longer a union for life. These legislative changes altered the social institution of marriage in ways which have continued to play out, not only before federation but ever since. The legal rights and obligations attaching to the status of marriage, once indissoluble, could be dissolved. Upon judicial separation, the wife had[21] rights different from her rights during marriage. Upon dissolution, new rights and obligations could be created[22] by order or undertaken by remarriage. The particular detail of these changes is not important. What is important is the observation that neither the social institution of marriage nor the rights and obligations attaching to the status of marriage (or condition of being married) were immutable…

35. The social institution of marriage differs from country to country. It is not now possible (if it ever was) to confine attention to jurisdictions whose law of marriage provides only for unions between a man and a woman to the exclusion of all others, voluntarily entered into for life. Marriage law is and must be recognised now to be more complex. Some jurisdictions outside Australia permit polygamy. Some jurisdictions outside Australia, in a variety of constitutional settings, now permit marriage between same sex couples.
36. These facts cannot be ignored or hidden. It is not now possible (if it ever was) to decide what the juristic concept of marriage includes by confining attention to the marriage law of only those countries which provide for forms of marriage which accord with a preconceived notion of what marriage “should” be. More particularly, the nineteenth century use of terms of approval, like “marriages throughout Christendom”[47] or marriages according to the law of “Christian states”[48], or terms of disapproval, like “marriages among infidel nations”[49], served only to obscure circularity of reasoning. Each was a term which sought to mask the adoption of a premise which begged the question of what “marriage” means. The marriage law of many nations has always encompassed (and now encompasses) relations other than marriage as understood in Hyde v Hyde.
37. Other legal systems now provide[50] for marriage between persons of the same sex. This may properly be described as being a recent development of the law of marriage in those jurisdictions. It is not useful or relevant for this Court to examine how or why this has happened. What matters is that the juristic concept of marriage (the concept to which s 51(xxi) refers) embraces such unions. They are consensual unions of the kind which has been described. The legal status of marriage, like any legal status, applies to only some persons within a jurisdiction[51]. The boundaries of the class of persons who have that legal status are set by law and those boundaries are not immutable[52].
38. When used in s 51(xxi), “marriage” is a term which includes a marriage between persons of the same sex.

In other words, the constitutional question is now settled. The federal parliament can now pass Marriage Equality legislation removing the present discrimination in the Marriage Act and there’s no doubt it will stand. Same sex marriage is definitely a type of marriage covered by the constitutional marriage power. It no longer matters what people thought marriage meant in 1901.

The fight is now concentrated in one area, and one area only – the federal parliament. And while we have this argument, there are 27 Australian same-sex couples who we’ve seen marry, and who put a clear face on the injustice of the present discrimination.

Make no mistake – last weekend was a step forward. Today was an even bigger step forward.

UPDATE: The Sydney Morning Herald has noticed the victory, too.

Although their insta-poll designer hasn’t understood the headline:

Which answer is “Yes. It was the right decision BECAUSE Everyone should be allowed to marry the person they love.”?