Gay marriage and the Constitution

A Tasmanian Greens bill to legalise gay marriage is attracting significant attention in the national media. UNSW constitutional lawyer George Williams is being touted by supporters of the bill as advising that it may well survive constitutional challenge (somewhat ironically) because a 2004 Howard government amendment to the Marriage Act (Cth) may have opened a “loophole” that would allow the Tasmanian law to avoid constitutional invalidity for inconsistency with the Commonwealth law by operation of Constitution section 109.

The question potentially arises because the Commonwealth’s marriage power (section 51(xxi) is a concurrent one, not an exclusive Commonwealth power), so that the States can legislate on the subject of marriage as long as the State law isn’t inconsistent with any Commonwealth one dealing with marriage.

I haven’t seen Williams’ detailed advice, but the media summaries of it suggest that Williams is arguing that the Marriage Act amendment may have had the effect of making it “cover a field” of legislative operation separate from that of the proposed Tasmanian law, thus avoiding any inconsistency. However, although it’s an ingenious argument, I have my doubts that it would succeed.

The recent Commonwealth amendments essentially just added an additional definition of “marriage” in section 5:

marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

Williams presumably argues that this definition evinces an intention to deal only with the field of heterosexual marriages, leaving the (separate) field of gay marriage open to be occupied by a State law without any inconsistency (and therefore invalidity of the State law). But that conclusion surely depends on the legislative intention of the Commonwealth Act. I would have thought that, putting it at its very highest, the 2004 amendment results in an ambiguity. Did the Commonwealth intend to legislate only for heterosexual marriage, leaving the field of gay marriage clear for the States? Or did it intend to define marriage exhaustively for all purposes as meaning only heterosexual marriage? That is, did the Commonwealth in fact intend to occupy the entire field of “marriage” at least to the extent of defining exhaustively what types of union it includes?

At least since the enactment of sections 15AA and 15AB of the Acts Interpretation Act (Cth) in the early 1980s, the approach in such a case of ambiguity is then to look to the object and purpose of the provision, and in so doing one may examine extrinsic sources including the Minister’s Second Reading Speech and other sources that may reveal the government’s intention. You wouldn’t have to look very hard at any extrinsic source to discover that the Howard government’s intention was to exhaustively define marriage and to exclude the possibility of gay marriage.

Moreover, that conclusion is fortified by looking at the 2004 amendments themselves, which not only inserted the purely heterosexual definition of marriage but also precluded the Australian recognition of any overseas gay marriages. It’s hardly likely that the Commonwealth intended to preclude gay marriages under Commonwealth law and the recognition of overseas ones, while leaving the States free to legislate for gay marriage if they so desired.

In addition, the “cover the field” test for section 109 inconsistency, on which Williams’ advice apparently relies, is not the only test for constitutional inconsistency. It is sometimes referred to as the “indirect” inconsistency test. The more usual direct test looks at whether there is a direct “collision” between a provision of the Commonwealth law and a provision of a State law. Does the Commonwealth law remove or modify a right which the State law then purports to restore (or vice versa)? If so, then there is a direct collision and the State law is invalid to the extent of the inconsistency. Again, it’s probable on this test that a State law which defined marriage as including gay marriage and a Commonwealth one which excluded such marriages would be held to be in direct collision.

However, maybe there is an argument that has some (although probably less than 50%) chance of success. It might be argued that the Commonwealth’s constitutional power in relation to marriage (section 51(xxi)) is confined to legislating in respect of heterosexual marriage. Simply because that is what “marriage” meant in 1901 when the Constitution was enacted. The argument depends on the High Court adopting an “originalist” approach to the meaning of “marriage” in the Constitution. The Court has sometimes been minded to hold that words used in the Constitution must be regarded as bearing the meaning they held in 1901, but has sometimes (and probably more often in recent years) held that the meaning of constitutional words can evolve with contemporary understandings, at least where it’s reasonable to conclude that the Founding Fathers would have intended such an evolving meaning.

Justice McHugh mused about this very issue in Re Wakim; Ex parte McNally in 1999:

Thus, in 1901 “marriage” was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably “marriage” now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.

If the Commonwealth lacks the constitutional power to legislate in relation to gay marriage, does that mean that the States, whose “residual” legislative power is “full and plenary” to the extent not excluded by Commonwealth power, would have that power? Quite possibly.

I certainly hope the Tasmanian Greens get ALP support for their gay marriage bill, not only because I see no compelling reason why the unions of gay couples shouldn’t be legally equal in all ways to heterosexual marriages, but because the law will inevitably be challenged in the High Court and we’ll end up with a fascinating decision about not only section 109 inconsistency but also approaches to constitutional interpretation.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Simon Evans
2021 years ago

Interesting post, Ken. I’ve written a longish comment over at Basal Questions (http://www.simonevans.org/).

blank
blank
2021 years ago

As I have remarked before, instead of legalising gay marriage, we should ‘de-criminalise’ marriage altogether, then there could be no discrimination of the basis of marriage (or marriage-like relationships).

If adults want to share their lives and/or loot, they should be able to enter into enforceable legal partnerships, with enforceable pre-nups, and so on.

Following on from McHugh’s observations on what marriage means or may mean in the future, “union for life” and “the exclusion of others” are both dead concepts in to-day’s Australia.

If A wishes to divorce B, B won’t get much milage from the “union for life” in that definition.

If A has been sleeping around, B won’t get any joy from the courts, despite “exclusion of others”. In fact, if B gets too stroppy about A screwing new partners in the matrimonial bed, B may well be thrown out of the matrimonial home by court order.

Anyway, on another point of law, if Tas does pass a gay marriage law, under what law would they divorce?

Would a Tas marriage be a legal marriage for the purposes of sec 4(2)(a) of the Social Security Act 1991?

Could a person be ‘gay’ married in Tas, and ‘straight’ married under Aus law at the same time?

Ken Parish
Ken Parish
2021 years ago

Blank

You make some excellent points. Clearly, a State law providing for gay marriage could not override provisions of valid Commonwewlth laws like the Social Security Act, which may be a further pointer to a likely conclusion that such a State law is unconstitutional.

And, as you observe, the other elements of the definition of marriage (lifelong-ness and exclusivity) are also somewhat time-worn having regard both to the living reality and the no-fault divorce provisions of the Family Law Act. Nevertheless, I think it’s still true to say that the vast majority of marrying couples have every intention of remaining together for life to the eclusion of all others, and that society still looks with disfavour on adultery (though not divorce). So I don’t think the social meaning of marriage has evolved quite to the extent you seem to be suggesting.

Finally, I don’t see any bar to a State legislating for gay divorce if it is indeed held constitutionally permissible for it to legislate for gay marriage in the first place. I wonder whether the Tasmanian Greens’ bill deals with that aspect?

Geoff Honnor
Geoff Honnor
2021 years ago

It’s all very interesting but my personal preference would be for the states to put some energy into consistent civil union/partnership recognition in the first instance.

observa
observa
2021 years ago

“because I see no compelling reason why the unions of gay couples shouldn’t be legally equal in all ways to heterosexual marriages”

Can I suggest an interesting perspective on the need for the precautionary principle at the margins by Jane Galt here at http://www.janegalt.net/blog/archives/005244.html

Mark Bahnisch
2021 years ago

Not quite OT, but when I used to work for the Registrar-General’s Office as a clerk when I was 16, we solemnised civil marriages under delegated powers from the Commonwealth. Another avenue for the States to throw a spanner in the Federal works?

Evil Pundit
2021 years ago

Gay marriage could destroy the Family Court.

If both partners are the same sex, how will judges know who to discriminate against?

Geoff Honnor
Geoff Honnor
2021 years ago

“If both partners are the same sex, how will judges know who to discriminate against?”

Swedish ancestry will be positively favoured, EP.

Mark Bahnisch
2021 years ago

I think the Family Court needs to take sperm theft more seriously.

mark
2021 years ago

Nice one, Geoff.

observa, that’s a very interesting article. A leetle difficult to agree with, though. You’ll forgive me for saying, I hope, that Jane is a Libertarian only because she adds, each time she agrees with a Conservative point, “of course, I’m not necessarily saying the Conservatives were right… but, look at the evidence.” She gives three examples of situations where The Old Way was the better way, but well-meaning reformers buggered it up for everyone in the interests of the few: uncapped income tax, welfare for Conservative whipping boys, and no-fault divorce.

I’ll skip the tax example for now.

She follows it up with “Conservatives didn’t want unwed mothers/black people/women in general to get the same sort of deal as everyone else, but nobody listened, and now look where it’s got us”. She pays no more than lip service to the arguments that got us “welfare even for people the Conservatives don’t like” and “no-fault divorce”. Before unwed mothers got welfare, they were forced into institutions or loveless marriages. Now they aren’t, so we get fewer loveless marriages. And this is a bad thing? Before divorce was easier, unhappy couples either stayed together for decades, hating each moment, or they killed one another. Divorce ended all that (well, mostly…), but that’s a bad thing because now we see people ending dud marriages in divorce instead of living out their lives in misery? Deary me!

One would expect the standard Libertarian argument (but not the wacked-out, Heinlenian Libertarian argument) to be something along the lines of “if it ain’t broke, don’t fix it”. Which is fair enough, and easy on the rest of us too: marriage is broken, but worry not, the well-meaning reformers are on the way! But Jane goes a bit further than that: “if you can’t conclusively prove it won’t break, don’t even think about it, buddy”. Despite her protestations to having no opinion, this strikes me as rather close-minded and conservative.

Her earlier arguments for “whoops! The reformers didn’t notice *that*!” were: low taxation makes it easier for people to put up with higher taxation; support for unwed mothers means there’ll be more unwed mothers; and finally, make it easier to divorce and there’ll be more divorces. All three issues were forseeable, and indeed Jane states that critics pointed this out at the time. Critics of gay marriage, however, haven’t come up with anything better than “eww! Get ’em away from me! They’re holding hands, Mommy[sic]!” and, of course, Jane’s argument (oh, and “let’s privatise marriage!”… *cough*). Why not?

Surely it’s the people arguing in favour of restricting freedom who should have to cough up all the reasons? And why doesn’t a self-professed Libertarian see it that way?

Mindy
Mindy
2021 years ago

Good points Mark. Personally I haven’t seen Danish society implode, even though they allow gay marriages, so I think generally society, where it would care at all, would just adjust. People out there still whinge about unwed mothers living on the welfare state, so I say lets give them something else to whinge about and allow gay marriages.

observa
observa
2021 years ago

Mark, the essay by Galt was from John Ray by the way. Judging by her other posts Jane has an economics background and hence her interesting use of the marginal analysis of the long term outcomes of liberal policies. Having an eco degree myself it has some traction for me also.

Recently I heard(ABC radio I think) that single parent families had risen from 6.4% in the 60s to around 27% of all families now. There was also an article this week describing the large concentrations of such families in certain suburbs of Melb and the problems associated with that. Perhaps the need for an all hands on deck labor force response to demographic aging will begin to shrink the SPB numbers dramatically in future, if not the sole parent family numbers. I don’t think we’re too far away from only allowing single parents to access benefits until kids school starting age(rather than 16 now), if not the usual return to work time of about 12 months for their married sisters. That may come too.

Your ubiquitous Andrew Bolt also has something to say about liberal value outcomes with AIDS in Africa here at http://www.heraldsun.news.com.au/common/story_page/0,5478,12835371%255E25717,00.html

“The moral of the story? The Pope was largely right: saving sex for marriage is the best defence against AIDS. Save sex, not safe sex. We’ve seen it work, as other leading AIDS workers agree.

Last year, for instance, respected AIDS experts appealed in the British Medical Journal for more to be done to preach faithfulness instead of just condoms.

“It seems obvious but there would be no global AIDS pandemic were it not for multiple sexual partnerships,” said the gurus, from groups such as the Global Fund for AIDS, the Bill and Melinda Gates Foundation, and the US Agency for International Development.

BUT progressives who read this will be angry. They won’t want this to be true, and so won’t believe it. Sadly, that’s how most people reason.

And why their anger? Because Christianity, or any philosophy that preaches restraint, responsibility and a respect for facts, threatens their freedoms, such as their freedom to have sex with whomever they choose.”

The interesting thing for me is that liberal thinkers generally practise conservative values for themselves and imbue those values on their offspring just like conservatives. Increasingly it seems, practical administrators are waking up to the fact that liberal philosophies without self imposed conservative values, are anathema to outcomes at the margins of the good society.

observa
observa
2021 years ago

Spoken like a true liberal Mindy. Perhaps you’re into polygamy too? Go ask the Imam for his liberal view of marriage here at http://www.islam.tc/ask-imam/view.php?q=14345

mark
2021 years ago

observa, I assume you don’t mean *the* Jon Ray, extremist from Queensland?

Bolt uses a lot of rhetoric designed to convince non-Conservative readers of his idiocy. But strip that away, and, yes, he has a point. The Church is right: save sex for marriage, don’t commit adultery within marriage, and you’re unlikely to contract AIDS. The Religious Right are also correct in their “abstinence” campaigns for preventing teen pregnancy. It’s hard to deny that refraining from sex will drastically reduce one’s chances of suffering some of the unwanted consequences of sex, like pregnancy or STDs (though if you want to be safe from AIDS it’s best not to have a blood transfusion either, oh, and make sure you screen your mother for the disease before allowing yourself to be created in her womb!). I don’t think many lefties — although the “don’t want to hear it” crowd Bolt invents may well coincidentally exist — would disagree with that. Unfortunately, it’s beside the *point*.

I understand the Catholic Church has great influence in many parts of Africa. They’ve been preaching “save it for marriage” and “keep it in the marriage, or preferably your pants” for many years now. One might even say “centuries”. Yet AIDS continues to spread? How can this *be*? I’d like to bring to mind the possibility — slim though it sounds — that people have, believe it or not, been sleeping around *anyway*. If this turns out to be the case, and I’d be as shocked as you if it does, then surely allowing people to use condoms isn’t such a bad idea?

And he complains about freedom. Good grief! How dare those “progressives” wish for the freedom to have sex with whomever they want! Could someone please remind me what Libertarians are doing in bed (pun intended) with Conservatives? Play around with our freedom as much as you want, right-wingers, so long as you don’t raise taxes! Is that the message?

blank
blank
2021 years ago

“I understand the Catholic Church has great influence in many parts of Africa.”

Only 16% of Africa’s population is Catholic.

So, the Catholic Africans, while happily ignoring centuries of Catholic teaching on extra-marital sex, will suddenly become obedient to an injuction against condoms.
Pull the other one.

Perhaps someone can do a graphic, region by region, of Africa comparing AIDS cases and Catholic population.

Mindy
Mindy
2021 years ago

Observa – sorry I don’t rank polygamy on the same level. Last time I looked gay marriage was about two people wanting to be legally joined. I fully understand that on a religious level many people feel that gay marriage is wrong, and they are entitled to think that. I don’t agree and can’t see why its such a problem for politicians(outside religious views).

My marriage isn’t suddenly going to disolve or become less because Bob and Ned can get married.

Dave Ricardo
Dave Ricardo
2021 years ago

Mindy, I was wondering, do you know Mork, another regular contributor to this blog?

Mindy
Mindy
2021 years ago

No never met the guy.

observa
observa
2021 years ago

“observa, I assume you don’t mean *the* Jon Ray, extremist from Queensland?”
Yes from dissecting leftism. Jon does get a bit repetitive, but does link to the odd interesting article like Janes.

“Play around with our freedom as much as you want, right-wingers, so long as you don’t raise taxes! Is that the message?”
Their message is that they don’t mind privatised ‘Free’doms so much, it’s the ‘Cost’doms that are being socialised that they mind. I guess like conservative thinkers, liberal thinkers prefer to live as far away from the results of their handiwork as we do. Whilst we’re somewhat philosophical about that, we can understand why liberals are always on some guilt trip over it ;)

observa
observa
2021 years ago

“My marriage isn’t suddenly going to disolve or become less because Bob and Ned can get married.”

But isn’t that also true if I have 4 wives Mindy?

observa
observa
2021 years ago

While you’re thinking about that Mindy, do you also think Bob and Ned should be able to adopt children like married couples can now?

Ken Parish
Ken Parish
2021 years ago

observa

I know your question was directed to Mindy, but I’ll venture an answer anyway, from my own very personal viewpoint. I can’t see why Bob and Ned shouldn’t be able to adopt, as long as the decision is made on the basis of an assessment of the adopted child’s best interests, not those of Bob and Ned (or observa and mrs. observa).

In the best of all possible worlds, I would accept that a loving, heterosexual couple with a solid marriage is likely to be the best choice for a child, because they offer stability and male and female role models that are more likely to give the child the best start in life. But we don’t live in the best of all possible worlds. For example, when Jenny P and I applied to adopt, we felt that our marriage was stable and loving. By the time we were offered Rebecca (unexpectedly) a year or so later, we were much less solid and had contemplated breaking up. We convinced ourselves that we were wrong, and that everything would be OK. And it was, for quite a bit of the time anyway. We held it together for almost 16 years, and gave Rebecca the very best loving upbringing we could manage. But would she have been better off with a Bob and Ned who really did have a stable and loving relationship that endured for the whole of her upbringing? I don’t know. I’m certainly not prepared to put our parenting skills on a pedestal above Bob and Ned. Are you? And if you were an adoptions officer charged with making a decision in the best interests of the child, would you conclusively accept that a heterosexual couple will always be the best selection for every child? If so, why?

Anonymous
Anonymous
2021 years ago

I have gigantic balls