On the High Court Marriage Ruling

I, like many others, just recently wrote, and was elated, about the announcement that the Australian High Court had just struck down the ACT homosexual marriage act. Of course initially we were all responding to what was available – and at first it was mere headlines.

Soon very brief articles appeared consisting of only a few paragraphs, filling in a bit more detail on the override of the ACT legislation. But now we have some more details, and the entire ruling can now be accessed. A one-page High Court document can be found here: www.hcourt.gov.au/assets/publications/judgment-summaries/2013/hca55-2013-12-12.pdf

The full decision can be viewed here: www.austlii.edu.au/au/cases/cth/HCA/2013/55.html

While it is quite clear that the decision certainly did strike down the ACT marriage act as being unconstitutional (“The Court held that the whole of the ACT Act is of no effect”), the ruling itself left some potentially damaging doors open. Some of the worrying remarks include these:

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” (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), and equivalent legislation in the Australian colonies, 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 rights different from her rights during marriage. Upon dissolution, new rights and obligations could be created 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” or marriages according to the law of “Christian states”, or terms of disapproval, like “marriages among infidel nations”, 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 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. The boundaries of the class of persons who have that legal status are set by law and those boundaries are not immutable.
38. When used in s 51(xxi), “marriage” is a term which includes a marriage between persons of the same sex.

These and other sections of the ruling appear to be saying that marriage is changeable, and the Federal Parliament may in fact make changes to the definition of marriage. As Colin Jory has written about this decision:

“In essence, the Court has decided that ‘marriage’ in the Constitution is not descriptive of anything, regardless of what the formulators of the Constitution thought it described, and regardless of what all or any of the Australian populace at the time the Constitution was formulated thought it described, but is a mere word which the Commonwealth Parliament can define to mean whatever it wishes, provided only that the Parliament’s definition applies
– to a consensual relationship among a plurality of natural persons (not necessarily two, not necessarily of different sexes, not necessarily separated by any degree of consanguinity), which
– the parties intend to be enduring (not necessarily for life); and which relationship
– incurs mutual rights and obligations (of no necessary kind) as prescribed by the Federal Parliament.”

So the good news of the ACT legislation being struck down needs to be tempered by what may be more sleight-of-hand tricks by our High Court judges. As I said in my earlier piece, the activists certainly will not back down, but will keep pushing this.

Indeed the Greens are now pushing similar legislation in WA. But with this ruling, the activists will be emboldened yet again to push for Federal changes, and will again be targeting Federal MPs and Senators. We of course must do the same. The advice given by Margaret Thatcher applies here:

“You may have to fight a battle more than once to win it.”

[1075 words]

38 Replies to “On the High Court Marriage Ruling”

  1. Quentin Alice Louise Bryce is the Governor General of Australia. Maybe it is time to send a message to Her Majesty’s government by packing this lady’s bags and sending her back to “Mother”. David Cameron and Obama are breathing threats on Commonwealth countries that don’t pander to the predilections of Sodammedanism. Australia needs to exert its sovereignty by getting rid of the union jack.

    David Skinner, UK

  2. “In essence, the Court has decided that ‘marriage’ in the Constitution is not descriptive of anything, regardless of what the formulators of the Constitution thought it described, and regardless of what all or any of the Australian populace at the time the Constitution was formulated thought it described”

    This is what angers me about society today. The way legal professionals, activists, politicians and judges think they have the right to bend and use loopholes to find new or more flexible meaning in the constitution, without any due respect to the meaning the founders of the constitution intended to make.

    Activists and lawyers treat the law and constitution like some kind of game.

    Aidan Herman

  3. The important factor here is that marriage, under section 51 ss. xxi (21) of the Constitution grants exclusive power to the Federal Government/Commonwealth and the States under section 109 must retire form it (cannot legislate).
    The next Federal election and all subsequent Federal elections should be considered upon what will happen if the homosexual party (the greens) and we stand for everything party because we have no morals (the Labor party) get into the majority.
    Our struggle begins now to educate the ‘unwashed masses’ and show how marriage is supposed to protect our children from the clutches of sub-culture and guarantee, wherever possible a normal home life which includes a mother and a father.
    John Abbott

  4. Surely Australia is facing a constitutional crisis?

    David Skinner, Uk

  5. Dear Bill, The idea of same sex marriage has been struck down by the high court. However the challenge for devout Christians in heterosexual marriage is to make sure that their marriages are gay in the emotional sense, as in happy, not in the way that homosexual activists have tried to tell us what “gay” means.
    Regards, Franklin Wood

  6. I know this ruling sounds a bit odd, by them effectively saying marriage is whatever the federal government says it is, but the nature of the court case basically meant they had no option but to rule that.
    The ACT’s defence was that the “marriage” that s51 gives the federal government has jurisdiction over was marriage as per 1901 – ie a lifetime man-woman relationship. Since people in 1901 would never have imagined that the word could be used to describe a same-sex relationship, they claimed the federal government only had jurisdiction over man-woman marriages. A same-sex “marriage” was a different thing entirely, and therefore is able to be legislated by the states.

    This put the high-court into the position of deciding whether a same-sex “marriage” would fit the definition of a marriage intended by the constitution writers, or whether it was a different beast entirely. By ruling as they have, they are saying that because marriage has varied since 1901 (ie, from being permanent to semi-permanent), that marriage could vary enough to include two people of the same-sex, and therefore comes under the constitution.

    Yes this unfortunately leaves the way open for the federal government to redefine marriage in the future, but it stops states redefining marriage by playing with semantics. If the High Court said that marriage as mentioned in the constitution was strictly a man-woman affair, it would have no choice but to uphold the state legislation, because the states were legislating something not covered by the constitution.

    Although the WA greens are introducing another state-based bill that they claim will survive a High Court challenge, I really can’t see how today’s ruling could leave any room for state-based legislation.

    Yes the wording does seem strange, and even negative, but the positive is, it has given certainty in that only the federal government can now legislate for SSM. Of all the parliaments in the country, that is the one that is least likely to ever pass it.

    Graham Fountain

  7. Thanks for that explanation, Bill. I wonder if the result of this win is the unleashing of more hatred against Conservatives who have ‘spoiled the dreams’ of SS couples. Nevertheless, at least we have won this battle and we must keep fighting each new one again and again.
    Dee Graf

  8. In NSW, decriminalisation of homosexuality took three attempts. 30 years later, no one is trying to re-criminalise it.

    Bob Jones

  9. Franklin Wood said:
    “Dear Bill, The idea of same sex marriage has been struck down by the high court.”

    No I am sorry but you have misread the comments of the judges.

    They upheld the idea that a conflict between State and Federal legislation is resolved in favour of the Federal law, because that is how the literal words of the Constitution are written.

    But they actually endorsed the idea of same sex “marriage” by declaring that we CANNOT read the literal words of the Constitution as they were read and understood at Federation.

    Their Honours have contradicted themselves to achieve the requisite objective – to read into the Constitution the definition of marriage which the activists wanted.

    John Angelico

  10. In other words, they refuse to acknowledge marriage’s basis in natural law. The inherent, biological, psychological and social essence of marriage gets left out and treated as if it is just a social or linguistic construct.

    Damien Spillane

  11. Thanks Jo. I voted in the Canberra Times poll straight away (6.30am Friday NSW time) and it was then running at 35 per cent in favour of the High Court decision, but 65 per cent against. Moreover, the paper’s story interpreted the decision as paving the way for SSM. The battle is far from over, folks.

    Brian Pratt

  12. Damian Spillane @ 2 am 13/12/13, yours is the best succinct description of the essence of the ruling I have seen. In short, so long as there is consent between “natural persons”, the Federal Parliament can legislate for anything that its collective imagination desires.

    There is a chilling meaninglessness in the ruling, and any reliance upon what the word “Marriage” may have implied in the Constitution is at an end. As bad as it is, better to have our eyes opened now than be let down by false hope later.

    Gerard Calilhanna

  13. SUCK IT, BILL.

    Marriage equality is coming. With or without your ill-conceived, self-aggrandizing, poorly-written diatribes.

    Tim Austin

  14. Thanks Tim. Um, no I won’t suck anything, and no, nothing is inevitable. Indeed, I will only redouble my efforts to protect real marriage from folks like you. But at least the whole world can see all the sweetness and light which oozes out of you guys in the tolerance and acceptance brigade. Thanks for reminding us all again of why we stand and fight for what is right.

    Bill Muehlenberg, CultureWatch

  15. “Why do the nations rage
    and the people plot a vain thing?
    The kings of the earth set themselves
    And the rulers take counsel together.
    Against The Lord and against His Anointed, saying,
    Let us break their bonds in pieces
    And cast away their cords from us.

    He who sits in the heavens shall laugh;
    The Lord shall hold them I’m derision.
    Them shall He speak to them in His wrath,
    And distress them in His deep displeasure.
    Yet I have set My King
    On My holy hill.. ”

    Keep up the great work Bill! So sad to see such an immature and hateful comment from Tim, he must be such an unhappy person. if only He could know the joy of sins forgiven and how beautiful The Lord is… but we will continue to pray.

    Sandy Anderson

  16. Repent, Tim. Turn away from supporting evil.

    Jesus is coming and the powers in the heavens and on the earth will not stand before him, neither high courts nor homosexual lobbies. We will all bow the knee, willingly or forcibly, to the King of kings.

    Simon Fox

  17. Indeed Bill, even without any effort from us, the gay agenda is unsustainable, simply because it flies in the face of the real world. Their campaign will inevitably come crashing down and they will be the first to suffer, but not before they have caused immeasurable suffering to our children and grandchildren. History repeats itself and I believe the worm is already turning. But the danger will not have passed until we have put our own houses in order. The gays are not some alien species: they are us, our own flesh and blood. It is we who have produced them. Jesus Christ said better to enter heaven minus eyes, hands and feet that have caused offence than enter into hell with our whole bodies.

    David Skinner, UK

  18. A little trick that the pro gay conglomerates say is that marriage has always changed since history began and that gay amalgamates are just another stage in its evolutionary progress. It is true that there have been differences, but these have never amounted to anything like a total difference. If anyone will take the trouble to compare the marriages of, say, the ancient Egyptians, Hindus, Chinese and Romans what will really strike one is how very like they are to each other and to our own.

    But what would a total difference look like? Think of a country where people were married to pavements, dead bodies, animals, their mothers, sisters, a hundred people or themselves. You might just as well try to imagine a country where the sun was called the moon and the moon the sun. Men have differed as regard the manner and circumstances in which marriages were formed, such as being arranged, or between an older man and a much younger women (as with the case of Margaret Beaufort, the mother of Henry V11, who was a mother at 13 and a widow at 14), or as to whether one should have one wife or four. But they have always agreed that one should honour one’s father and mother by marrying some one of the opposite sex and not someone of the same sex – and that one should not steal another’s wife or husband, or abandon one’s spouse, as gays frequently do.

    David Skinner, UK

  19. One shouldn’t read too much into the poll conducted by the Canberra Times. The people of the ACT are not typical of mainstream Australia. After all, with ten attempts at SSM in parliaments throughout the country, only one has been successful; and that by a single vote. And we’ve seen what ultimately became of that!
    However, there is a need to persuade the federal government to conduct a plebiscite to clarify the issue: sooner rather than later!

    Dunstan Hartley

  20. Sandy, when I read your post all I heard was that wonderful aria for the solo basso in Handel’s Messiah, “Why do the nations so furiously rage together?”, and the following chorus, “Let us break their bonds assunder”.

    As I’ve been an alto choir member in many, many performances of “Messiah” during my life you won’t mind me getting a bit cultural, will you, Bill? I’m sure RJ Stove won’t object.

    None of us know if performances of musical works of high Christian art – Bach’s passions and masses; Handels’ oratorios; the entire ouvre of pre-Bach religious music including Gregorian chant – have any effect on modern pagans. We can only hope that their beauty will transcend our debased, pornographic ‘culture’ at least for a few of our young.

    Antonia Fietz

  21. Marriage is a life time partnership between a man and a woman to the exclusion of all others. It is sustained by love, patience, understanding, a positive outlook and unselfishness through thick and thin. Romantic attraction combined with selfish desire and a sense of deprivation will not achieve the creative thing that marriage is. Short term partnerships yes, lifetime marriage no. Gay people have made it abundantly clear that they do not rate faithful marriage and that they aspire to more open-ended relationships. If the issue is about equal status, I can’t see how a civil partnership is inferior to marriage – it is just different. Being able to allow for a difference of opinion is another important attribute in marriage. We see so much of the rabid snapping and snarling, frothing at the mouth and spitting by people from the gay and feminist lobby when they confront people who disagree with them. The thing to ask is: what will I be like when I have got everything I want? How will I celebrate my happiness without needing a victim to give me a sense of victory?

    Rachel Smith

  22. The analyses above of the High Court decision do certainly seem like a case of: “What you pick up on the merry-go-round you lose on the hurdy-gurdy.”. With the evident divorce of 21st-Century jurisprudence from the historic concept of authentic law as emanating from that Creator and Lawgiver known as the only wise God, our Saviour, certain “learned men” condemn their countrymen to an eternally mutant legal notion of marriage and the family, where these social institutions are like the Coozbanian Foob on a certain Muppet Show skit, “constantly evolving”.

    John Wigg

  23. I immediately sent off an email to the PM reminding him of the Liberal Party Policy on Marriage and urged him not to allow Liberals a conscience vote on this issue in Parliament.

    It is the natural law, not politicians that rule on this issue.

    It is a shame that those pushing for SSM don’t have access to the hate mail/emails you receive Bill. It might open their eyes.

    Madge Fahy

  24. After reading the wording above do Gay activists really think we can still take seriously their claims that they are not trying to redefine marriage?

    Let us hope and pray that God continues to show mercy to this country and not pass judgement by allowing an equivalent such as Obama or Cameron to take power, compounding judgement.

    Mick Koster.

  25. ” “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
    “The question is,” said Alice, “whether you can make words mean so many different things.”
    “The question is,” said Humpty Dumpty, “which is to be master—that’s all.” ”
    Lewis Carroll, Through the Looking Glass.

    I’ve read the decision and I’m astonished at the reasoning outlined therein. It seems the High Court bench is taking lessons in hermeneutics – the rules for the interpretation of historical texts – from Humpty Dumpty. Who could imagine the term marriage could come to mean so many things? The highest court in the land has gone post-modern: authorial intent, not to mention centuries of tradition based on natural law and religious sanction, counts for nothing. What counts is who has the power to “be master”. The nation is very poorly served by this ruling.

    Mark Henderson

  26. Tim Austin says that marriage equality is coming. I think it is already here. Any unmarried man and woman may marry unless there is some very serious reason why they can’t.

    David Morrison

  27. Go Bill, if it is possible for you to redouble your effort.

    Johannes Archer

  28. Graham,
    I have to disagree with you. The High Court were in no such dilemma.
    Once the issue as to whether the ACT could or could not make laws with respect to marriage – that was the end of it. Judges frequently remark that having held that X is determinative there is no need to go further and talk about the other stuff. The High Court could well have stopped all argument there.The definition of marriage no matter how far out they want to make it still brings up the central point – the ACT had no power no matter how you define it.
    At this point they have ruled the only possible way on the ACT’s power – the rest is just obiter dicta – just opinion.

    Jim Crudden

  29. Jim, you said:

    At this point they have ruled the only possible way on the ACT’s power – the rest is just obiter dicta – just opinion.

    But dicta have a nasty habit of influencing the next stage – lobbying by activists, who take encouragement from the fact that their arguments have been endorsed at high levels.

    John Angelico

  30. Bob Jones, you are right. We need to be recriminalising sodomy.

    It’s not too late. A nation headed for destruction was completely turned around when God used men such as John Wesley to preach righteousness.

    David Clay, Melbourne

  31. If the baker in the USA is being forced to compensate the gay couple for refusing to make them a cake due to it violating his beliefs, can people theoretically sue a Muslim butcher for refusing to cook meat that is non halal, or a Orthodox Jewish restaurateur for refusing to cook a diner some bacon as it violates his/her beliefs?

    Jo Deller

  32. Maybe we can use the slippery slope argument FOR us. We as Christians can sue people who refuse to serve us or allow us to protest or demonstrate our beliefs without obstruction. ( to prove a point, not that I am advocating harming others)

    Jo Deller

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