Why state-based marriage laws might not be such a great idea

Later today, the Tasmanian parliament will debate an ALP-Greens bill to legalise same-sex marriage in the state. While the idea of state-based marriage laws for same-sex couples has been around for a while, Tasmania is the first state to get as far as debating such a law. South Australia and the ACT have indicated they are considering going down the same path.

As laudable as any effort to move the marriage equality agenda forward is, the Tasmania approach throws up a number of questions and, in the wrong set of circumstances, could ultimately frustrate efforts to enact true marriage equality at the federal level. The issues involved are complex, and I am not a lawyer, but I’ll try to make the best sense of them, in the briefest possible time, as I can.

The constitutionality of such an Act would be open to challenge, despite Tasmanian premier Lara Giddings assurances that the state has legal advice that the law would withstand challenge. It seems almost inevitable that, if it is passed, it will end up in the High Court.

Australia’s constitution gives the Commonwealth government the power to make laws with regard to a limited set of enumerated issues – these are outlined under s. 51 of the Constitution, pertinently including s. 51 (xxi), “marriage” and s. 51 (xxii), “divorce and matrimonial causes…”.

Unlike the federal government’s enumerated powers, the state parliaments have no restriction on the laws they can make.

If a state law and commonwealth law are in conflict with each other, s. 109 of the Constitution resolves the conflict:

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.

The marriage power under s. 51 (xxi) doesn’t invalidate state laws about marriage per se, indeed until 1961 marriage in Australia was left to states to legislate, despite the marriage power having been part of the original text of the Constitution. Since then, the Commonwealth Marriage Act 1961 has been the definitive law on marriage, and it has been amended many times, including most infamously in 2004 to insert the words “one man and one woman.”

So, as long as the Tasmanian law is not “inconsistent with a law of the Commonwealth,” it will be immune from challenge. But how can a state marriage act not be in conflict with the federal act?

There are two arguments going around as to how this might be so. The first argues that the Commonwealth law does not deal with same-sex marriage, and therefore a state law that only deals with it would not be inconsistent. A very detailed and scholarly discussion of this argument, by constitutional expert George Williams, can be found in Vol 9, no 2 of the Constitution Law and Policy Review. That article deals with a 2005 Tasmanian bill, but the general principles also apply to the current bill.

Williams’ advice in 2005 was that a Tasmanian law dealing with same-sex marriage would be upheld by the courts because “the two Acts operate in different fields.” The federal law deals exclusively with opposite-sex marriage, and the state law exclusively with same-sex marriage, so they can happily coexist (until such time as the federal law is reformed to allow for equal marriage, at which time the state law would be rendered inoperative under s. 109.)

That’s all great and so far we have no problem. But there’s also an alternative argument that gives us a little more trouble. This one turns on an interpretation of s. 51 (xxi) or the Constitution, rather than s. 109.

The alternative argument suggests that the framers of the Constitution, because they could not possibly conceive of same-sex marriage, cannot have intended s. 51 (xxi) to refer to anything other than opposite-sex marriage.

On this argument, which is discussed in a Commonwealth Parliamentary Library paper entitled Same Sex Marriage, the Commonwealth only has the power to make laws with respect to opposite-sex marriage and therefore laws like Tasmania’s would not be in conflict – indeed, if this argument stands, a reformed federal marriage act might be ruled to be invalid because the Commonwealth had extended its powers beyond those allowed by the constitution.

It is settled law that the Commonwealth cannot define the constitutional meaning of marriage through legislation. In Re F; Ex parte F, Mason and Deane JJ held that:

Obviously, the Parliament cannot extend the ambit of its own legislative powers by purporting to give to ‘Marriage’ an even wider meaning than that which the word bears in its constitutional context. Nor can the Parliament manufacture legislative power by the device of deeming something that is not a marriage to be one or by constructing a superficial connection between the operation of a law and a marriage which examination discloses to be but contrived and illusory.

If the Tasmanian government is successful in passing its current Marriage Bill (and that remains to be seen, with the state’s upper house far from certain to pass it) these arguments will all be tested in the inevitable High Court challenge. In the event that the Court agrees with the latter argument (that ‘marriage’ in the Constitution refers only to opposite-sex marriage) we find ourselves in a dreadful pickle: this would mean that, in Australian law, there are two kinds of marriage.

That would present a problem to the broader objective of achieving equality before the law – if there are two different kinds of marriage in Australia, same-sex marriage would be ‘separate but equal’ compared to opposite-sex marriage, or possibly ‘separate and lesser’. Either way, that’s not true equality. It also throws up a raft of questions about inconsistency of laws between different states, recognition of marriages performed in another state, and so on. The only way forward from that situation would be to amend the Constitution, a process that would require a national referendum.

From being the last state to decriminalise homosexual acts, Tasmania has in recent years been a leader on LGBT rights, including last night passing laws opening up surrogacy to same-sex couples. I really hope the bill before the Tasmanian parliament is passed, and I look forward to following the debate in any case. But as the arguments above illustrate, there really is only one path to meaningful marriage equality in Australia, and that is for the Commonwealth law to be reformed, and for that law to be tested and upheld by the High Court as consistent with s. 51 (xxi).


Image above: Alex Greenwich of Australian Marriage Equality’s signed copy of the Tasmanian bill. Via Facebook.

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