Same-Sex (Sort Of) Marriage Allowed in Australia's Capital, Maybe

Constitutional law just got interesting for the rest of us, assuming you care about marriage equality. Oops, you can't call it that anymore.

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22 October 2013, 6:24am

I know a few lawyers who, since their days of law school, have carried a copy of the constitution with them. Constitutional law experts are some of the coolest nerds around. While most of us follow sport or TV shows, they follow High Court decisions and legislation and challenge each other with scenarios that none of us will ever understand. But today, constitutional law just got interesting for the rest of us, assuming you care about marriage equality. Oops, you can't call it that anymore.

Here's what happened.

The ACT Government passed legislation today making it legal for same-sex couples to get married. It's all happy days in the ACT—the Greens even provided a real-life gay man at the press conference so the nation could witness his teary proposal to his long-term partner. Yet, a shadow looms over the jubilation. The Federal Government says they're not allowed to do it.

Like overbearing parents objecting to their child's attempts at independence, Tony Abbott and George Brandis (the Attorney-General) say the Commonwealth is the only jurisdiction able to legislate on marriage. States can generally do what they want, but not when it comes to this sacred institution. The Commonwealth has the ability to legislate to overturn the decision, something they can only do for the territories, and which they did do when euthanasia laws were passed. Instead, this time they've said they want to challenge the legislation in the High Court.

Surveys have shown that more than two thirds of Australians support same-sex marriage. The easiest way to allow it would be to amend the Marriage Act and redefine what marriage is. With the Coalition Government unlikely to allow a conscience vote in the Federal Parliament which would just fix everything, the ACT Government is trying a different approach.

'Marriage' is defined in the Marriage Act of 1961. It was defined at a time when homosexuality was still illegal, a time when most gay people were probably living in unhappy heterosexual marriages. It's defined as a union between a man and a woman to the exclusion of all others, entered into voluntarily. Obviously it's hard to get around something so specific.

The ACT Parliament has just 17 members, eight Labor, eight Liberal and one Green, and the law passed by one vote. It was similar to a Tasmanian bill which passed the lower house but failed to pass the upper house by two votes. What these bills try to do is propose that same-sex marriage is not marriage at all - same-sex marriage is a thing where two people are legally recognised as a couple and have all the same legal rights as people who are married, and their relationship is called marriage, but it's not marriage. After all, the Marriage Act says marriage is between a man and a woman. That's why the bill is called the Same-sex Marriage Bill, and not the Marriage Equality Bill as it was originally named. We're not talking about marriage! It's just a marriage-like arrangement! The last-minute wording change is designed to improve the ACT's chances in the High Court.

It's likely that no-one will be allowed to engage in this funky new same-sex-not-real-marriage until the High Court challenge is over, so for now all the attention will be on those seven judges who decide, ultimately, just what marriage is, constitutionally.

It appears to be a bit of a paradox. If they decide that marriage should be defined in a way that the writers of the Constitution would have seen it in 1901, it would be only between a man and a woman. In this case, the ACT's same-sex marriage is a new thing, a separate area that they are free to legislate for, and the Federal Government can't do anything about it. This could be a good thing in the short term. Unless you don't identify as a particular sex. One of the consequences of the change in language of the ACT bill is that only two people of the same sex can get 'married'. If one of both of you don't identify as male or female, technically the law doesn't apply to you. But if that is the case, you're probably used to being discriminated against in every other area of your life so it won't come as a surprise.

However, if the seven esteemed High Court judges decide that the definition should take into account the way most people think of marriage, and if they are inclined toward more progressive thinking, they might determine that marriage includes same-sex marriage. This would mean that the Commonwealth Government has jurisdiction over all marriage, including same-sex marriage, in which case the ACT bill would be overturned.

This seems like a bad thing, but in the end what all gay rights lobbyists, and most Australians want is for the Marriage Act to be amended to include same-sex marriage and indeed any marriage between two people. That's equality. If the High Court can decide that the Constitution recognises same-sex marriage, then that's a big step toward convincing the Federal Government to legislate for equality.


Follow Carly on Twitter: @carlylearson

More on marriage equality:

Street Battles Rage in France Over Gay Marriage

We Took an Anti Gay Marriage Priest to see a Gay Married Priest

If Julia Gillard is Such an Atheist, Where's All the Gay Marriage