In recent weeks, the United States Supreme Court has clarified the constitutional position on same-sex marriage in that country. In contrast, little has been done to clarify the constitutional position in Australia. In this post, Adelaide Law School PhD Candidate Mark Bruerton debunks some of the constitutional myths that have been used in the marriage equality debate in South Australia.

Thousands celebrated the recent United States Supreme Court decision regarding the status same-sex married couples in federal law and the following Californian court decision overturning a ban on same-sex marriage. These decisions have begun to clarify the constitutional position of same-sex marriage in the United States. In Australia, however, the constitutional position of same-sex marriage has not had such a moment of clarification. Uncertainty surrounding the constitutional capacity to legislate for same-sex marriage has influenced an interesting response from the SA Liberals to the introduction of the Marriage Equality Bill 2013 by Labor MP Susan Close into the Parliament of South Australia. Despite having a conscience-based policy on the issue, the response provided by shadow attorney-general Stephen Wade stated that “as a matter of constitutional law, marriage is the domain of the Federal Parliament so our party will not be supporting laws we don’t think the Parliament has the power to make.” This is, however, not necessarily the case.

Beyond certain limited powers given exclusively to the Federal Parliament, the State Parliaments have a capacity to legislate on any issue they like. There is only one proviso on this. This comes from section 109 of the Australian Constitution. This section provides that “when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.” What this means, from a constitutional stand-point, is the State Parliament has the power to legislate on any issue, even marriage, and unless that piece of legislation is inconsistent with a validly passed Federal law, the State law is constitutionally valid. So, is there a piece of Federal legislation which may be inconsistent with a potential Marriage Equality Act 2013 (SA)?

The federal government has produced a law on marriage, the Marriage Act 1961 (Cth). It provides for the performance, registration and recognition of marriages in Australia. It defines marriage for the purposes of the Act in section 5 as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” This, in essence, means marriages performed under the Marriage Act are only to be those between a man and a woman. But would the exclusivity given to marriage under Federal law mean that any law relating to marriage enacted by a State which used a different definition be invalid?

There are two potential views on this. First is that the Marriage Act, by defining marriage the way it does, ‘covers the field’  and precludes any state-based law which purports to legislate on marriage with a different definition. The second is that this definition exists only to define the limits of the Marriage Act and therefore a state-law which created an institution of marriage outside of that definition would fall outside the coverage of the Marriage Act and would not be inconsistent within the meaning of section 109. Only the High Court would be able to provide a firm answer on this but there are indications that the latter view is the most valid in this circumstance.

First, there is an indication within the Marriage Act that it is not intended to completely cover the field in terms of marriage. Section 6 specifically protects the power of the States to make laws on marriage. This indicates that the Act recognises that State laws will continue in the marriage area and will likely need to be made in the future. As such, so long as the State laws can co-exist with what the Federal Government has legislated, they will continue to be valid. So an inconsistency between the Marriage Act and the South Australian Bill would need to arise from the Bill attempting to alter the Marriage Act’s operation or meaning.

What the Marriage Act has done is create a legal relationship a man and a woman can enter into. It has defined the qualifications to enter into this relationship, the process of admission into that relationship, and the conditions and circumstances it is recognised around Australia. In order for the Marriage Equality Bill to be inconsistent with the Marriage Act within the meaning of section 109 of the Australian Constitution, it would need to purport to do the same thing. This is not the case. It creates a different legal relationship to the one created in the Marriage Act with its own qualifications, its own process of admission and its own conditions of recognition entirely separate to a marriage established under the Marriage Act. It defines its reach as being outside that of the Marriage Act by defining a same-sex marriage as being “the lawful union of 2 people of the same sex to the exclusion of all others, voluntarily entered into for life” in clause 3. In effect, the Marriage Act and the Marriage Equality Bill could co-exist side-by-side without any inconsistency being a problem. As such, there is reason believe that the Marriage Equality Bill would not fall foul of section 109 of the Constitution.

Any constitutional question would, of course, have to be considered by the High Court of Australia for a definitive ruling. Ultimately however, there is enough evidence to believe that the Marriage Equality Bill would be constitutionally valid, despite the concerns of the SA Liberals.