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High Court leaves same sex marriage door ajar


Rainbow coloured rope tied in a heart-shaped knot, with a wedding band strung on either sideThe advocates for marriage equality and their allies in the ACT Legislative Assembly have scored one of the great own goals with the High Court of Australia ruling unanimously that 'the whole of the Marriage Equality (Same Sex) Act 2013 (ACT) is inconsistent with the Marriage Act 1961 (Cth)' and that 'the whole of the Marriage Equality (Same Sex) Act 2013 (ACT) is of no effect'.

The advocates for same sex marriage did themselves no favour in terms of public credibility by putting their support behind a dog's breakfast of ACT legislation which even if valid and effective would not have provided marriage equality. The High Court noted that the ACT Act provided 'for the automatic dissolution of the marriage if a party marries another under a law of the Commonwealth, or under a law of another jurisdiction that substantially corresponds to the ACT Act'.

How could advocates for 'marriage equality' credibly support a 'marriage' terminable without court order, without agreement, without prior notice to the other party — an arrangement able to be dissolved at the whim of one of the parties walking out the door having found another marriage partner, whether straight or gay?

Whatever such an arrangement might be, it is not a marriage. These advocates and the merry band of ACT legislators were happy to legislate for marriage inequality as a stop on the route to Commonwealth marriage equality. This was a stupid political strategy given the unlikelihood that Prime Minister Tony Abbott would be swayed or moved more quickly to action by the referral of such a legal hodge-podge to the High Court. This was not a stop on the route; it was a detour down what could be a cul-de-sac. And it was never a close run thing.

The litigation has served one useful purpose. Until now, there was some academic legal doubt whether the Commonwealth Parliament's constitutional power to make laws with respect to marriage would be broad enough to include laws with respect to same sex marriage. In this case, the seventh judge Justice Gageler could not sit because he had previously given legal advice on the matter at hand. The High Court has put this matter beyond doubt with all six sitting judges affirming that 'marriage' for the purposes of defining the constitutional power of the Commonwealth Parliament could not be confined to marriage in the traditional Christian sense.

The Court has said that for constitutional purposes:

'marriage' is to be understood ... as referring to a 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 be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.

Under the Australian Constitution, 'marriage' is a term which includes a marriage between persons of the same sex.

So the court has put beyond doubt two issues. First, neither the states nor the territories now have power to go it alone on same sex marriage. New South Wales and Tasmania can put their legislative plans to rest. NSW Premier Barry O'Farrell was right when he said that only the national Parliament could deliver marriage equality and that he did not want 'to see a return to the patchwork quilt of marriage laws that existed in the 1950s'.

Second, the Commonwealth Parliament does have power to legislate for same sex marriage. There is no need for a constitutional referendum. From here, the law is simple.

The politics and political morality of change are still not so simple. There is only one way forward. This is a matter for the Commonwealth Parliament. Just as all sides allowed a conscience vote on the original 1961 Marriage Act, so too all sides should allow a conscience vote on any amendment of the Marriage Act which would permit same sex couples to marry on the same terms as opposite sex couples.

Our elected politicians voting according to conscience are best suited to determine if and when the Australian community is ready to embrace an extension of marriage as a social institution to include same sex couples.

Unlike me, neither side of this debate favours civil unions as a distinct status for same sex couples conferring all the attributes of marriage, while maintaining a commitment to the best interests of children available for adoption, and restricting state authorisation of assisted reproduction so that every child has a biological father and a biological mother. In these circumstances, I accept that ultimately our Parliament will legislate for same sex marriage. I will not lose any sleep when it comes, and I will be happy for those couples who will be helped by such social endorsement to live in a faithful, loving relationship.

But in light of this own goal, I can't see it coming in this parliamentary term. The advocates for marriage equality who were prepared to go via the route of ACT marriage inequality have not done their cause any good.


Frank Brennan headshotFr 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.

Frank's previous articles on same sex marriage are:

It's time to recognise secular same sex marriage

ACT makes a dog's breakfast of marriage equality

Rainbow knot image from Shutterstock

Topic tags: Frank Brennan, same-sex marriage, high court



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Existing comments

The disallowance of the ACT legislation was inevitable and so should not be cause for either rejoicing or disappointment. On the other hand, the High Court's pronouncement on the simple secular meaning of the term 'marriage' in the Constitution is a great victory for common sense. Marriage equality, when it comes (and it surely will come) is now simply a matter of political will to enact the appropriate legislation. Great news!

Ginger Meggs | 12 December 2013  

The High Court disallowance should not surprise anyone. All we need now is a Commonwealth Government with the will to legislate for marriage equality. It won't happen with the current mob in charge but I still believe it will happen. I never doubted the Commonwealth has the power to amend its own legislation so calls for a referendum on the issue were never realistic. When the Commonwealth gets around to it next time hopefully both parties will allow a conscience vote on it. Then we might get somewhere.

Brett | 12 December 2013  

I'll ponder the judgement closely over the next few days. But it appears, on the face of the High Court's definition of marriage, that I'm married to my boss! Can someone referencing the judgement in its definitional obiter readily disabuse me of this notion?

HH | 12 December 2013  

Logic 101, HH. Marriage is a 'consensual union... between natural persons' but not all consensual unions are marriages. It's a subset.

Ginger Meggs | 12 December 2013  

Er, that's my point, GM! The HC's definition of marriage doesn't pick out marriage.

HH | 12 December 2013  

Grammar 101; the HC didn't define marriage, it described the nature of the relationship referred to in the Constitution, i.e.. a consensual union between natural persons... in accordance with legally (i.e. by Parliament) prescribed requirements'.

Ginger Meggs | 12 December 2013  

"The advocates for marriage equality who were prepared to go via the route of ACT marriage inequality have not done their cause any good". Oh, you wish, Frank. We'll have to wait and see, but I think they've done their cause a lot of good. Every time the issue is raised and couples are presented in the media, more people find that they are OK with the idea, couldn't care less, feel the inevitability that we will eventually follow the lead of New Zealand (!) and just want it done and over with. Frank, have a look at how the Church handles publicity compared to how the same sex marriage lobby has, and then have a good think about who knows what they're doing.

Russell | 12 December 2013  

"The HC's definition of marriage doesn't pick out marriage". What GM said. Marriage is what the Marriage Act makes it. Surely that will be quite different from the kind of relations you enjoy under the Workplace Relations Act (or whatever it's called now).

Russell | 13 December 2013  

Fr Brennan, I have read other commentaries on the High Court's decision and some excerpts of the High Court's decision itself. It appears that the High Court made some comments not only on same sex marriage but also on polygamy. In a nutshell the justices ruled that marriage is whatever parliament defines it to be. If this is so, then there should be no legal reason why paliament, when it is ready, cannot expand marriage to include polygamy as well as same-sex unions. Is this understanding correct, Fr Brennan? I would also appreciate any comments you have on what the High Court had to say regarding polygamy's current and future legal standing.

Gerald | 13 December 2013  

Russell, sure, the Marriage Act definition ("... the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.") seems pretty much to exclude such agreements as employment relations, business partnerships, etc, as well as same sex marriage. But the High Court definition in Cwlth v ACT, which is after all what we're talking about, is so broad it seems to exclude neither, nor of course, polygamy, 'open' marriages, etc ... nor, as it seems, employment relations for example. So my question stands.

HH | 13 December 2013  

Fr Frank, I'm wondering if you could help me to work through what I think is a real problem, starting with the term "marriage equality".
At present, a marriage is a marriage - upheld by the Law, if certain requirements are fulfilled by the couple. If those requirements are not met, then the marriage can be annulled, declared not to have existed, by the Commonwealth.
Legal practitioners and judges have assisted in upholding this down the centuries.
Men and women have married knowing, accepting and honouring those requirements and that 'living out' has furnished marriage with not only its moral standing but also its accepted and acceptable place in the social fabric.
In the case of same-sex marriages, those specific requirements of the Law which uphold its validity will have to change, thus not making for "marriage equality" but forcing a change on all.
A conscience vote by 175 parliamentarians should not decide such momentous changes. Any process for change should allow for an extensive debate, inclusive of all the "fine print" details and then put to the nation in a plebiscite.
The ACT legislation did not furnish the details to the community for debate prior to enactment.

Fr Mick Mac Andrew | 15 December 2013  

An enduring memory of the ACT same-sex marriage law (short-lived though it was) was the excitement and joy of those who saw the opportunity to finally be recognised as people who are able to be married. They will fight on for equality - with plenty of others cheering, and helping them work for change.

Pam | 15 December 2013  

Hi Fr Frank

Great Article as always. I, like you, also prefer civil unions (or another equivalent term) and not the term marriage to describe committed same sex unions. I also think that the ACT case did the marriage cause no good. The wish by some is to impose SSM by stealth, and impose a concept of marriage that does not sit well with large swathes of the does little to change hearts and minds. It certainly hasn’t changed my mind, or the minds of anyone I know. I also agree that a change to the definition will not happen in this term of parliament, and is unlikely to happen even in the next term of parliament.

Kind Regards,

Neil | 15 December 2013  

Thank you Frank for clearing that up for me. With all of the biased reporting out there, it is difficult to get a clear picture of the real story. I think you're right. The marriage legislation won't change soon but it is inevitable down the track.

Peabo | 15 December 2013  

Good morning Father Frank, As always your writing is very lucid. I have always understood that in the fact of its role in creating human life human sexuality is considered within

john frawley | 15 December 2013  

Good morning Father Frank, As usual, your writing is very lucid. I have understood that within Catholicism, human sexuality in the fact of its unique role in creating human life is yet another outward sign of "God amongst men", that is, sacramental. The Catholic Church has formalised this act of creation within the sacrament of Matrimony. In practical terms, this fundamental Catholic concept of the sanctity of procreative human life can exist only within a marriage betweena man and a woman who accept the responsibility of stewardship of any human life which arises from the procreative coupling driven by their sexuality. The sadness of this whole debate to me resides in the fact that The Law, the protector of humanity is becoming the instrument of destruction of civilised society as evidenced for instance in abortion law, euthanasia law and same -sex marriage law. I doubt that our law will resist similar miscarriages of truth in Australia and was quite surprised by the unanimous decision of the high court re the ACT legislation. It will not be the end!

john frawley | 15 December 2013  

#Father Brennans legal reading is:
" ... all sides should allow a conscience vote on any amendment of the Marriage Act which would permit same sex couples to marry on the same terms as opposite sex couples"
#That statement is utterly contrary to the magisterium and can not be justified by canonising SSM with being a "faithful, loving relationship[objectively a grave mortal sin]
#Add Scandinavian SSM research evidencing astronomical divorce rates-the issue is thus a demographic/moral nightmare despite Fr Brennan's
"not losing any sleep" sang froid!!
# The legalese "natural persons" glosses over the reality of homosexuality as an 'intrinsic disorder' [cf prenatal
hormonal rewiring pathology]

Father John George | 15 December 2013  

Bill Hayden needed in 1995 as Quentin Bryce needs now, as both Governor-Generals of the Commonwealth of Australia, the married to teach them the intimacy in marriage that calls to account for an incest connected abuse of religious liberty offence. The Society of Jesus is complicit in perpetuating this offence in following St Ignatius of Loyola's "Rules for thinking with the Church" at 356.4 of "The Spiritual Exercises" that: "We must praise highly religious life, virginity, and continency; and matrimony ought not be praised as much as any of these." Oliver Clark, Job's Trust oliver_clark5@telstra.com

Oliver Clark | 15 December 2013  

HH - look at the order the Court issued. How many times does it refer to the Marriage Act? Again and again. But the part I would like homophobes to study is this: "But when s 51(xxi) gives the Parliament legislative power with respect to "marriage", it gives legislative power with respect to a status, reflective of a social institution, to which legal consequences attach and from which legal consequences follow. In the Marriage Act Case, Dixon CJ said16 of s 51(xxi) that it covers "the status of the married parties", that is, "the particular legal position they hold by reason of their married state". His Honour continued, "'marriage' is considered as the source of the mutual rights and of the legal consequences which flow from it but requiring the definition, the support and the enforcement of the federal 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."

Russell | 15 December 2013  

A soccer aficionado from Bangkok tells me it should be "own goal" and not "home goal". Apologies to the cognoscenti amongst the sporting fans.

Now corrected! - ED

Frank Brennan SJ | 15 December 2013  

Vatican observer Sandro Magister offered a detailed account of then-Cardinal Bergoglio’s opposition to same-sex marriage as the issue was debated in Argentina:

It was 2010 when that law was approved in Argentina. Cardinal Bergoglio took a position against it in a form that he had studied thoroughly. Not with public declarations that would directly challenge the political powers, but with two internal letters to the Church: the first to the nuns of four Carmelite monasteries of Buenos Aires, and the second to a leader of the Argentine Catholic laity.

The twofold move by Cardinal Bergoglio naturally had a substantial impact on the political terrain as well. But the explanation that was given to it was that the cardinal intended with the two letters not to “conduct politics” but simply “to recall the teaching of the Church to all those who proclaim themselves to be Catholic, asking them to act accordingly.”
[Against SSM]

The then-archbishop of Buenos Aires was not in parliament, of course, when the law on gay marriage was approved. And yet the promoters of that law saw him as enemy number one, to be defeated at all costs, even by boycotting any sort of negotiation that would open the way to solutions acceptable to the Church.

Father John George | 15 December 2013  

Some commentators appear to have misunderstood the High Court decision in Cwth vs ACT (HCA55). The Constitution makes no attempt to define marriage but merely gives Federal Parliament power to make laws with respect to it (S51xxi) and provides (S109) that if a state law be inconsistent with a federal, the state law is invalid to the extent of the inconsistency. The High Court have provided a 'judicial concept' of what the word 'marriage' currently means, and this is quoted by Fr Brennan. Had the Court not found that S51 allows federal law in respect of same-sex marriage the ACT legislation could have, I believe, operated concurrently with the federal (man and woman) Marriage Act.

That the federal Parliament can legislate to permit same-sex marriage (and, it would seem, polygamy) is, of course, not to say that it will or should do so. Proponents of same-sex marriage assert that marriage is "about love, not gender". Even assuming this touchingly innocent statement to be true, why on earth should the state have an interest in who loves whom?

John Vernau | 15 December 2013  

Thanks for a thoughtful, considered and well argued response to the High Court ruling on the SMS matter.
It seems to me that the sooner the advocates of same sex 'marriage' accept that the popularly acceptable , and achievable is the advocacy on behalf of civil unions. The idea of linking the idea of marriage might make it if it is distinguished clearly from what the major religious traditions understand as 'matrimony' - 'marriage' in a religious sense.
I don't see the likelihood of any Parliament in Australia changing national or state laws to amend the idea of 'matrimony' - heterosexual marriages to legislate SSM to the same status.
I also don't foresee Roman decrees, documents, definitions or journalistic opinions as repeated verbatim and trotted out regularly and perfunctorily by John George as having much if anything of a chance in influencing anything beyond his own imagination.

David Timbs | 15 December 2013  

John Vernau - as you must know the state has an interest because of property rights, who can speak for whom in the case of incapacity etc. David Timbs - I think you have it the wrong way around - let religions define what they mean as marriage - for themselves; the 'default' position is the legal one. And why would anyone be satisfied with unequal civil unions when country after country has been bringing in same sex marriage?

Russell | 16 December 2013  

#The SSM ACT/Constitutional debacle is based, at least, on a demographic fiction viz monogamous faithful loving SSM relationships[pace Fr Brennan]. Such fantasia already exposed by high SSD[divorce] rates-already cited, supra
#Research at the epicentre of 'gay abandon' viz USA is noted:
Pepper Schwartz, Ph.D. and James Witte, Ph.D. who collected data from 100,000 respondents for their research
"About half of all gay male couples in America allow infidelity "
#Such is hardly secure ambiance for children-indeed a veritable recipe for emotional traumatic abuse[forget ethical upbringing]
#So much for monogamous faithful loving SSM versus polyandrous disaster[Welcome to Constitutional polyamorous Sodom and Gomorrah guys!]
"n. of or pertaining to participation in multiple and simultaneous intimate romantic relationships.
Relax Mr Timbs! It is called 'mugging with truth',nothing big deal.

Father John George | 16 December 2013  

Mr David Timbs sir. Clearly our PM is in full accord with the Roman Decree [I "trotted out"!] And I fully applaud him. The decree teaching has had considerable influence.

Father John George | 16 December 2013  

I believe that as we Catholics have accepted to be good sports and work within multi party democracy, we also need to accept the results. In this case, homosexual civil 'marriage. There can be no other way except a conscience vote. Binding of consciences either for or against the status quo is wrong and offensive in terms of the 'fair play' nature of the democratic process. Absolute monarchies and acceptance of Holy Mother Church are gone forever, now replaced by a de-Christianised culture which is reflected in our political parties and civil institutions. This is tragic but a reality. We need to be good sports in persuading people within the democratic process that homosexual 'marriage' is wrong. If we lose, and I think we eventually will lose, then we have done our best in trying. And that is good enough.

Michael Webb | 16 December 2013  

In our treasured democratic society,PM has the right to reject conscience vote protocol.

Father John George | 17 December 2013  

Mr Frawley sir, whatever the psychosexual 'within' correlates for sexuality,highly importantly, are the male/ female'outside' biophysical attributes[anatomy 101] Jettison biotechnological lab artifactual clones etc.[Frankenstein 666]

Father John George | 17 December 2013  

Cardinal Bergoglio on the abolition of marriage:
"Here, the envy of the Devil, through which sin entered the world, is also present, and deceitfully intends to destroy the image of God: man and woman, who receive the mandate to grow, multiply, and conquer the earth. Let us not be naive: it is not a simple political struggle; it is an intention [which is] destructive of the plan of God. It is not a mere legislative project (this is a mere instrument), but rather a "move" of the father of lies who wishes to confuse and deceive the children of God.

Jesus tells us that, in order to defend us from this lying accuser, he will send us the Spirit of Truth. Today, the Nation [patria], before this situation, needs the special assistance of the Holy Ghost that may place the light of Truth amid the shadows of error; it needs this Advocate who may defend us from the enchantment of so many sophisms with which this bill is being justified, and which confuse and deceive even people of good will."

Martin Snigg | 20 December 2013  

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