After the June decisions of the US Supreme Court on same sex marriage, I restated in July 2013 my support for civil unions. Conceding that neither side of the debate was much interested in that outcome, I said, 'We can probably no longer draw a line between civil unions and same sex marriage. That will be the long term consequence of last month's US Supreme Court decisions which will impact much further west than California.'
The caravan has been moving at some pace since then in Australia but it is difficult to assess in what direction or whether it just be around in circles with the advocates for marriage equality digging themselves into a judicial hole from which it might be difficult for either side to emerge.
During the recent federal election, Kevin Rudd pulled out all stops to advocate same sex marriage legislation in the Commonwealth Parliament. Tony Abbott stuck firmly to the line that his party would maintain party policy that marriage is a relationship between one man and one woman to the exclusion of others, and that the party policy would be maintained unless and until the party revised its position, including whether or not to allow a conscience vote. In the Liberal Party, as distinct from the Labor Party, members are always free to cross the floor without the risk of automatic expulsion from the party — though their prospects of promotion tend to take a nosedive.
I remain of the view that any extension of the civil law's definition of marriage should be the preserve of the Commonwealth Parliament with all members being granted a conscience vote. Presently the 1961 Commonwealth Marriage Act as amended states that 'marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life'.
At 11.40am on 22 October the ACT Legislature voted by nine votes to eight to agree in principle to the passage of its Marriage Equality Bill. Thirteen minutes later, they voted by eight votes to seven to agree to 25 amendments including a renaming of the bill as the Marriage Equality (Same Sex) Act 2013. The purpose of the amendments was to 'clarify that this is a law for same-sex marriage and the ACT is not seeking to legislate in an area of law already governed by the Commonwealth under the Marriage Act 1961'.
The result is a dog's breakfast. And everyone is now off to the High Court.
Just to give one morsel from the dog's breakfast: The long title of the Act has been amended to read: 'An Act to provide for marriage equality by allowing for marriage between two adults of the same sex, and for other purposes'. But another amendment provides a definition of marriage: 'Marriage means a marriage under the Marriage Act 1961'. But the main 'dictionary' definition given in the Act states that 'marriage does not include a marriage within the meaning of the Marriage Act'.
So there you have it: under some provisions of the ACT Marriage Equality (Same Sex) Act, marriage means a marriage under the Commonwealth Marriage Act (which excludes same sex marriage) except presumably when it is a marriage under the ACT Marriage Equality (Same Sex) Act, between two adults of the same sex.
Under the Constitution, the Commonwealth Parliament has power to make laws with respect to marriage. So too do the states. And since 1978, so too does the ACT Legislative Assembly. But if a Commonwealth law covers the field, any state or territory law does not operate to the extent of any inconsistency.
Undoubtedly the Commonwealth will argue in the High Court that it has covered the field on marriage since 1961 and it should be left to do so. Advocates for 'marriage equality' frustrated by the slow pace of change at a Commonwealth level have decided to pursue state and territory legislation for forms of unequal and inferior marriage recognition in the hope of providing further political pressure for the Commonwealth to act.
All this is being done in the name of 'marriage equality'. The sort of marriage being offered same sex couples by the ACT law is so 'equal' as to provide: 'A marriage under this Act ends if either of the parties to the marriage later marries someone else under a Commonwealth law (including a marriage in another jurisdiction that is recognised by the Commonwealth as a valid marriage)'. No need for a minimum time of separation; no need for a court order; just up and off!
Professor George Williams, one of the legal advisers to the ACT Government on their amended Act, said three years ago: 'It would be better to have a single national law providing for same-sex marriage. However, such a law may not be legally possible, and in the short term may be politically unachievable. In these circumstances, we should not discount the possibility of a state leading the way.'
Marriage equality advocates are pursuing the issue at a state level in the hope of pressuring the Commonwealth. In the process they risk blowing apart the national coherence of marriage laws put in place in 1961.
History provides some salutary lessons about the need for detailed, careful legislative work — other than the 13 minutes consideration given by the ACT legislature to their amendments last week. History also points to the wisdom of a conscience vote in the national Parliament on this issue.
Introducing the Commonwealth Marriage Bill on 19 May 1960, Sir Garfield Barwick said he had taken a full year to prepare the legislation and he was prepared to wait many more months to debate the bill 'making with the states the several administrative arrangements which the bill contemplates'. He said: 'the measure will not be treated as a party measure ... members will be free to adopt their own attitudes and to express them by their vote, freely'.
The original Marriage Act contained no definition of marriage. Kim Beazley Snr like other members saw no need for a definition as he thought the marriage customs of Australians were unlikely to be radically changed by legislation. He said, 'The marriage customs of the community are, in fact, customs and they have not been framed around law. Perhaps to a considerable extent they have been framed around religion.'
Barwick said, 'The founding fathers of the Commonwealth were of a like mind; they thought that these fundamental relationships should be governed by a national law; for in a list of subjects not notable for its length, which were to be conceded to the national Parliament, marriage was included.'
Interesting for present purposes, Gough Whitlam, Deputy Leader of the Opposition with the carriage of the matter for the Labor Party, reminded the Parliament on 17 August 1960:
When the Attorney General (Barwick) made his second reading speech on this bill, he announced that while the Government would take full responsibility for having made the proposals contained in the measure and would support them, as a government, the legislation would not be treated as a party measure, and honourable members would be free to adopt their own attitudes to it and express them freely by their votes. The Opposition has resolved to take the same course.
Whitlam went on to say:
This is a field in which the founding fathers themselves, with their very narrow and timid conceptions of the Commonwealth's powers, were agreed that this Parliament should be able to pass laws.
In that respect our Commonwealth is different from the other English-speaking federations, the United States of America and Canada. We have power to pass laws on these subjects. I believe that everyone, whatever he might think of individual features of the bill, would agree that we should pass laws on this subject. As a result of this bill, Australian men and women and their children, wherever they live, will be able more readily and certainly to ascertain and establish their rights to marriage and arising from it.
In what might now be seen as a delightful ambiguity, Barwick, summing up the parliamentary debate, pointed out that there was no definition of marriage in the Bill nor in the Constitution: 'That is because we in this community recognise marriage as monogamous and a voluntary union for life of two people to the exclusion of all others.'
Religion is much less relevant now to the civil definition of marriage because while the crude marriage rate continues to decline (from 7.3 in 1960 to 5.5 in 2008), the proportion of civil marriages continues to increase. A century ago, 95 per cent of marriages were church marriages; in 1969, 89 per cent of marriages were still being performed in church. By 2010, 69 per cent of all marriages were performed by civil celebrants.
Some strong advocates of traditional marriage, including the Australian Christian Lobby, have been suggesting that the matter should be resolved by referendum. That is a bad idea. In Australia, we expect our members of parliament to make the statutory law and our judges to shape the common law and interpret the Constitution. We the people vote by referendum only to change the Constitution.
Occasionally there is a case to be made for a plebiscite when we are trying to determine a particular question to put to the people by referendum to change the Constitution. This is what we did when we wanted to determine whether we were ready to vote for a particular form of republic.
Groups like the Australian Christian Lobby should be careful what they wish for. If a referendum on same sex marriage, why not a referendum on (say) the death penalty? If the opinion polls are right, there is no doubt the way that one would go. Or a referendum on excluding boat people from Australia? Or a referendum on euthanasia? There are good reasons for avoiding the populist politics of lawmaking by direct popular vote of the people.
A year after the passage of the Marriage Act 1961, Barwick observed:
As I said when introducing the Bill ... I do not believe that there is any necessary virtue in uniformity; indeed, in many areas of human endeavour, variety may bring strength. 'But' (to quote from Hansard) 'the relationship of husband and wife, parent and child, is common to us all, whether we derive from one State or another. Also I think it is particularly proper that, as this country increases in international stature, it should have one uniform law of marriage applicable throughout the Commonwealth.'
Writing in an academic journal and reflecting on the passage of the Marriage Act 1961, Barwick said:
To bring unity to the marriage law of Australia was not, however, the main task of the architects of the Marriage Act. Their main task was to produce a marriage code suitable to present-day Australian needs, a code which, on the one hand, paid proper regard to the antiquity and foundations of marriage as an institution, but which, on the other, resolved modern problems in a modern way.
This remains our task, and it is best done by the Australian Parliament exercising a conscience vote rather than state and territory legislatures tinkering and then leaving the matter to the High Court. Marriage is too precious a social institution to be put in the mix of a dog's breakfast.
Fr Frank Brennan SJ is professor of law at Australian Catholic University, and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.
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