Sex, married bliss and the Constitution

Gay weddings and the state ... Is the law leaving Abbott behind? ... A flurry of opinionistas on whether the John Howard version of marriage is the end of the matter ... Whether State law would be inconsistent with the Commonwealth's ... Constitutional hanky-panky

THE same-sex marriage campaign last week got a virile booster shot from a NSW Legislative Council committee. 

After wide consultation with boffins of the utmost fame, the Social Issues Committee has floated the idea that state legislation giving same-sex couples the right to marry just might not be the constitutional no-no everyone has assumed. 
 
The thinking goes like this: 

• Marriage is a concurrent power of both the Commonwealth and the States; 
• Therefore the Commonwealth's power is not exclusive; 
• Residual matters are the province of the States; 
• Does the Commonwealth Marriage Act cover the field? With different sex marriage it does, but not necessarily with same-sex marriage; 
• Much depends on the meaning of the word "marriage" in the Constitution, because even though the Commonwealth Act says it only means the joining of a man and a woman, the High Court might have a wider  view; 
• The legal meaning of "marriage" has changed over time - for example, the availability of no-fault divorce and the abolition of marriage as a defence to rape. 

If the High Court finds the Constitution confines marriage to opposite sex plighting of troth, then the States would have a residual power. If the court finds the word has a broader meaning so as to cover same-sex marriages, then the Commonwealth could pass legislation to cover the field and there would be no need for State laws.  

Prof (Gorgeous) George Williams thinks that there would not necessarily be an inconsistency between Commonwealth and State laws: 

"My view is that there is no inconsistency between the federal Marriage Act and a carefully-drafted State same-sex marriage law. There is certainly room for debate about this issue. It is a myth, however, to suggest that a State law must be inconsistent. Rather, there is no answer to this question until the High Court provides one." 

Others disagree. 

Prof. Patrick Parkinson says that while the Marriage Act is not a complete statement of the law of marriage ...

"it is very likely that the High Court would hold that the Marriage Act 1961 covers the field of marriage". 

He thought it likely that NSW might follow the Tasmanian and South Australian path and create a hybrid marriage status, something that is different from "marriage" so as to avoid constitutional problems. 

Prof. Geoffrey Lindell and others reasoned that even if same-sex marriage does not fall within the definition of "marriage" as contained in the Constitution, the federal parliament could still cover the field with respect to marriage through its incidental legislative power. 

Prof Anne Twomey doesn't think that the Marriage Act can be read as leaving open the possibility of States legislating in this area. 

The NSW Bar Association said that it is possible to use the word "marriage" in State and Commonwealth legislation without giving rise to inconsistency. 

David Jackson QC in advice to the Department of AG and Justice said: 

"I think it clear that the Marriage Act seeks to determine what shall, and what shall not, be regarded as a valid 'marriage' in Australia. In that respect it 'covers the field' in the relevant areas. Only those unions which satisfy the requirements of the Marriage Act are valid marriages in Australia. Same-sex unions cannot satisfy that requirement." 

The upshot is that the committee found that NSW has the constitutional power to legislate on the subject of marriage. 

Within moments the ACT government announced it was on track to legislate for "marriage equality" - based on 2009 advice from Stephen Gageler. 
 
There is a lot of contention, but it seems that Premier Barry O'Packer wants to give Liberal MPs a free of conscience vote on the topic. 

The issue is whether there are enough crusty Catholic MPs under the thumb of Cardinal Pell to defeat a NSW gay marriage law. 

Legislative Council report