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.”