Why marriage equality advocates should thank George Brandis

The High Court decision is in, and the Marriage Equality (Same Sex) Act 2013 (ACT) is no more. Five days after the first same-sex marriages were celebrated in Canberra, those marriages are now void and the law is no more.

Naturally, a lot of people are disappointed that what seemed like an achievable path to same-sex marriage has now been shut off. But as I blogged earlier today, the notion of pursuing separate marriage laws for each State or Territory seems woefully misguided, especially as what that would achieve might well be the enactment of some sort of same-sex marriage framework, but it certainly isn’t the ‘marriage equality’ it’s been sold to us as.

Instead of lamenting the Court’s entirely sensible and reasoned (and unanimous) decision to invalidate the ACT law, we should thank George Brandis and the Commonwealth government for their efforts in illuminating the pathway to genuine marriage equality – an amendment to the Marriage Act 1961 (Cth) that reforms the institution of marriage to be genuinely inclusive of all people – not just heterosexual and homosexual couples, but bi, trans* and intersex people too.

Brandis could have just let the ACT law pass quietly and, barring some other party having standing to challenge it, the States and Territories could have each passed their own little same-sex marriage laws, people would have gotten frocked up in rainbow bow ties and mums would cry – and the hets-only federal law would have continued as the gold standard with no further political agitation for change. Real marriage under the Marriage Act, marriage-lite on a state-by-state basis. Instead, the momentum for change will just grow, and now there is only one way forward: the federal law must be amended.

Thanks, George. You just painted a big rainbow target on your own forehead.

Some more observations on the judgment over the fold.

A few random early observations on the High Court judgment:

1. Same-sex marriage is marriage

One implication of the decision is that the Court found that the definition of ‘marriage’ in section 51(xxi) of the Constitution includes same-sex marriage, not just the kinds of marriages that were known in 1901. An important implication of this is that it settles the question of whether the Commonwealth has the power to pass a same-sex marriage law. Remember that unlike the States, the Commonwealth’s powers are limited to those enumerated in the Constitution; some scholars have argued that, depending on how the High Court reads the word ‘marriage’ in s 51(xxi), the Commonwealth might not even have the power to extend the definition of marriage. It does:

[38] When used in s 51(xxi), “marriage” is a term which includes a marriage between persons of the same sex.

2. Marriage can evolve in whatever way the Parliament decides

The Court found that marriage is an evolving social institution which has changed over time, both before and the Constitution and the Marriage Act were written:

[16] 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. Section 51(xxi) is not to be construed as conferring legislative power on the federal Parliament with respect only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation.

3. Polygamous marriage is constitutionally possible

The Court outlined a definition of the word ‘marriage’, as it is used in s 51(xxi) of the Constitution, that notably avoided the restriction of the word to a union between ‘two persons’:

[33] … Rather, “marriage” is to be understood in s 51(xxi) of the Constitution 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.

Update, 3:20 pm: Crispin Hull, writing in the Fairfax press, takes a similar view:

In a way the result is a good one for marriage equality. Having same-sex marriages under state and territory law and other marriages under federal was never going to be satisfactory. Thursday’s decision paves the way eventually for a national law.

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