In December last year, the High Court of Australia decided that the ACT’s Marriage Equality (Same Sex) Act 2013 was inoperative because it was inconsistent with the federal Marriage Act 1961 (Cth). Key to the Court’s decision was the acceptance by the Court that, if it so chose, the Commonwealth Parliament could make laws providing for same-sex marriage under its marriage power in s 51(xxi) of the Constitution. In this post, Dr Gabrielle Appleby considers the political significance of the decision and the role the High Court has taken for itself in the fight for national marriage equality in Australia.
A judgment for the people of Australia?
This is a slightly belated post on the High Court’s decision on whether the ACT marriage equality legislation was inconsistent with the federal Marriage Act and therefore inoperative. I had put off reading the full decision when it was handed down in December because my head was so full from the year and I thought I didn’t have the energy to read a High Court decision in depth.
I shouldn’t have. The decision is well-written and accessible. I could not say for sure the reasons behind the adoption of a clear and simple style by the Court, but I think the political and public interest in the outcome of the case must have been a factor. The unanimous decision[1] starts with the following statement:
The only issue which this Court can decide is a legal issue.
It goes on:
Under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law (as a majority of the Territory Legislative Assembly decided) is a matter for the federal Parliament.
These two statements are, of course, accurate descriptors of the respective roles of the Parliament and the Court. (Although no doubt the High Court’s decision, which accepts that the Commonwealth’s power to make laws with respect to marriage extends to same-sex marriage, will be used by marriage equality advocates to further their political cause.) What is interesting is that the Court perceived a need to explain its role. The Court must have known it was writing for an audience who does not regularly peruse the Commonwealth Law Reports, and that the judgment was going to be used beyond its immediate purpose of determining the dispute over the ACT’s same-sex marriage legislation.
A politically dangerous decision
Before moving onto the decision itself, I want to note two further factors about the political environment in which the case was heard. First, is the notable absence of State and Territory interveners. Under s 78A of the Judiciary Act 1903 (Cth), the State and Territory Attorneys-General have power to intervene as parties in any matter arising under the Constitution or involving its interpretation. In this case, the Court was determining the breadth of Commonwealth legislative power, and what type of interpretative method it would apply in determining the meaning of a legal term used in the Constitution where the social meaning of that term may have moved on from 1901. Further, the Court was determining the test for when a Territory law would be inoperative because of inconsistency with a federal law. This is in the context of New South Wales, Tasmania and South Australia recently having same sex marriage legislation defeated in their Parliaments. Surely the States and Territories ought to have been interested in making arguments to the High Court in this case to protect the legislative powers of their body politics. But no. Not a word. No government was convinced the political consequences of attending were justified by the legal consequences.
National marriage equality: The ACT’s real endgame
The second preliminary point I would make is in relation to the ACT government’s acceptance in the case that the scope of the Commonwealth’s legislative power to make laws with respect to marriage in s 51(xxi) of the Constitution extended to providing for marriage between persons of the same sex. Now, if the ACT wanted to put forward the strongest possible argument to protect the operation of its marriage equality legislation, it would not have made this submission. As the High Court noted:
[T]he ACT Act would probably operate concurrently with the Marriage Act if the federal Parliament had no power to make a national law providing for same sex marriage.
So what was going on here? The answer must again lie in the political. In making this submission, it is clear that the ACT was not primarily concerned about the operation of their legislation. If the ACT legislation was found inoperative because only the Commonwealth can legislate to provide for same-sex marriage, this would be another arrow in the quiver of marriage equality advocates as they work towards the real prize: federal recognition of same-sex marriage. Indeed, the High Court’s decision means that no longer can opponents of same-sex marriage use the Constitution as a shield against marriage equality reform.
The judgment – The extent of the Commonwealth’s power to make laws with respect to marriage
So turning then to the judgment itself.
As I’ve already indicated above, the judgment starts by indicating the importance of determining the scope of the federal Parliament’ power over marriage to determining the operation of the ACT Act. The Court indicates that the ACT would probably operate concurrently if the Commonwealth power did not extend to same sex unions. The judges go no further. Indeed, they do not even consider the possibility of whether the Commonwealth could legislate to protect the term marriage even if its power did not extend to same-sex marriage.
If the Court had accepted this possibility, it could well have resolved the constitutional question in the case without considering the question of the scope of the federal marriage power. But by doing so it laid to rest one of one of the most dominant arguments in the campaign for national marriage equality. One can but wonder whether this was on the judge’s minds when they decided the case in the way that they did.
In determining the scope of the marriage power the Court accepted, as it must, that the nineteenth century definition of marriage under the English common law would have excluded same sex marriage. However, the Court refused to accept that the Constitution was referring to this narrow legal term of art in its reference to marriage. Rather, it was referring to a ‘topic of juristic classification’ (to use their language). That is, it was referring to a category within which judges or legislators may define what the law recognised as marriage, but such recognition at a particular point in time did not preclude other unions within the larger category from also being marriages, and topics of potential recognition by the law.
The High Court came to adopt this interpretation of the marriage power by reference to the previous evolution of marriage in English common law:
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.
Specifically, the judges refer to the introduction of divorce, and the necessary evolution of marriage as a union for life, to an evolution entered into for life.
The Court refers to a number of nineteenth century cases in which English judges rejected that polygamous marriages were recognised in the English common law. The Court uses these to demonstrate not that these types of marriages were not marriages, but that that they were excluded from the English legal definition of a marriage as it stood at that time. Indeed, the High Court used these early cases to demonstrate that the concept of marriage even at that time was wider than that recognised by the common law. Later in the judgment the Court also refers to foreign jurisdictions that today recognise same-sex unions within their legal definition of marriage to demonstrate that marriage as a broad category can extend to these unions.
Another reason, slightly less explicit in the judgment, is the potential for a narrow constitutional definition of marriage to undermine the objective of the federal power. At the commencement of its analysis, the Court asserts that the object of the marriage power (together with the divorce and matrimonial causes power) was ‘to enable the federal Parliament to provide uniform laws governing marriage and divorce.’ Accepting the objective of the commonwealth’s power is as the court asserts, the judges go on to explain the consequence of a narrow interpretation of it:
In place of Australia having by its Constitution acquired for the Australian Parliament the power of dealing with the whole subject [of marriage], it turns out that the Federal Parliament can deal only with [marriage having the characteristics and consequences it had] in 1900, and that each State separately must deal with other parts of the subject.
So if the constitutional concept of marriage is wider than the particular common law definition at any particular time, what are its essential or central characters that cannot be changed? The Court explains:
Marriage is to be understood in s 51(xxi) of the Constitution as referring to consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.
It’s an interesting definition. Same-sex marriage is clearly a possible subject of future federal legislation. As is polygamy. But, despite the fearmongering of some, South Australian Senator Cory Bernardi among them, it does not leave open the possibility of a marriage between a man and his dog.
The ACT Act
So where did this leave the ACT’s Marriage Equality (Same-sex marriage) Act 2013? The High Court noted the similarities between the legal status provided to same sex couples under the ACT Act and that provided by the Commonwealth’s Marriage Act to heterosexual couples. The Commonwealth Act had been amended in 2004 by the Howard Government to specifically state that a marriage under that legislation was only recognised if it was a union between a man and a woman. Further, the 2004 amendments had precluded same-sex marriages that had been solemnised in foreign jurisdictions from being recognised by the Commonwealth Act. The amendments were introduced as a reaction to increased foreign recognition of same-sex marriages and the possibility that Australian couples may seek to get married overseas with an expectation that their marriage would then be legally recognised in Australia.
The 2004 amendments were decisive. The Court explained:
The 2004 amendments to the Marriage Act made plain (if it was not already plain) that the federal marriage law is a comprehensive and exhaustive statement of the law of marriage.
Where to from here?
As I have already noted above, the way the High Court decided this case required it to determine whether the Commonwealth has the power to make laws to provide for same-sex marriage even if it has not yet done so. This gives the case an important political role to play in future campaigns for marriage equality.
But it is unlikely that we are going to see a successful same-sex marriage Bill pass through the Commonwealth Parliament any time soon. The case means that, absence an amendment to the Commonwealth legislation, the Australian Territories are precluded from enacting same-sex marriage; as are the States (a conclusion based on the fact that the Court applied an identical test to determining inconsistency with the ACT Act as it would with a State law).
Some Australian jurisdictions have enacted civil union legislation that provide government-sanctioned status to same-sex couples, although it is not called marriage per se. Does the High Court’s decision have any implications for this legislation? There is a strong view that these types of unions can be provided for in the States and Territories because they are something different, separate, from marriage. However, there is a worrying line in the judgment that the High Court may not take the same view. (I must thank my wonderful colleague Professor Geoffrey Lindell for drawing this statement to my attention):
And contrary to the submissions of the Territory, the topic within which the status falls must be identified by reference to the legal content and consequences of the status, not merely the description given to it.
Thus the irony may be that the greater substantive equality that has been achieved for same-sex couples (including those in legally recognised civil unions), and thus the more they look like same-sex marriage by another name, the less likely they may be constitutionally valid.
The High Court’s same-sex marriage decision is an incontrovertibly political decision, even if it is one that only decides a legal issue. There is no doubt that it will fundamentally shift the focus of the marriage equality debate in Australia.
Dr Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School.
