The mess of marriage equality: the ACT and the constitution

Often noble sentiments can lead to ballsing up the law. The sentiment in Australia is certainly in favour of realising that same-sex couples should not suffer prejudice or sanction by virtue of their unions. The Australian Capital Territory, on October 22, capitalised on this sentiment, passing the Marriage Equality (Same Sex) Act 2013.

Where that sentiment fractures is in the area of the institution of marriage. Much freight is placed on that one term. So much so that John Howard's government, in 2004, made an amendment to the Marriage Act 1961 (Cth) affirming the ancient description of Western marriage described by Lord Penzance in Hyde v Hyde and Woodmansee (1866). "In Christendom, it means the union of two people who promise to go through life alone with one another." Those people must be man and woman; the union must be voluntary.

So, in the recent struggles over same-sex marriage, ground has been won on civil unions and domestic partnerships but not marriage itself. The latter is given the protective gloss of history and religion: the union, essentially a procreative one based on security and persistence, was to be enshrined in law.

Much of the debate is based on a nonsensically limited view of marriage – at least when it comes to sociology or anthropology. A global anthropological study of marriage suggests polyandry, polygamy, flexible relationships, open relationships and closed orders. Almost all suggest a means of continuing the species. There are regulations on intercourse; regulations on property; rules on succession. What matters, rather, is not the moral question but the legal and political questions of whether the ACT can pass laws with respect to same-sex marriage.

Furthermore, the famous dissenting judgment of Canada's Justice L'Heureux-Dubé in Canada (Attorney-General) v Mossop [1993] dealing with bereavement benefits for a same-sex couple makes it clear that family is not merely a product of the law but shapes the law. Both forces interact. Such forces also change.

The framers of Australia's constitution did not see fit to define marriage, assuming in 1901 that the definition was one of heterosexual and exclusive permanence. But they wanted the Commonwealth to have control over legislating on marriage fearing other alternatives – namely, polygamous unions. We can assume, for that reason, that it is so broad a power that it might well, in time, be free of the gender tag.

Certainly, case law such as Attorney-General (Cth) v Kevin (2003), show an evolutionary streak. The marriage power, according to the Full Court of the Family Court, could not have been "frozen in time to 1901". For that reason, the court considered that "it is within the power of Parliament to regulate marriages within Australia that are outside the monogamistic Christian tradition." Justice McHugh went even further in Re Wakim (1999), claiming an arguable case that marriage "in the near future may mean, a voluntary union for life between people to the exclusion of others."

In the Australian case, we must consider the powers available to a state vis-à-vis that of the Commonwealth. When the two collide, the Commonwealth's law, by virtue of section 109 of the Constitution, shall prevail. For that reason, the ACT finds itself in a pickle even before its same-sex legislation has time to breathe.

It is true that historically, the Commonwealth has not interfered in the areas of Aboriginal customary marriage, de factos or single-sex unions. It stands to reason given the fact that the federal constitution specifies that the Commonwealth has power to make laws with respect to marriage. That has left the states to roam with legislative freedom in such areas.

The inflexibility of this stance has changed, largely via the power of referral in the Constitution. Laws allowing same-sex couples to split superannuation and register their property interests have been passed at the federal level. This was not previously feasible under such laws as Victoria's Relationships Act 2008. While the Victorian statute allows for the registration of domestic unions, it could not trespass into various areas of Commonwealth interest.

Frank Brennan, writing in Eureka Street (Oct 28) is correct to draw out the legislative knots the ACT finds itself in. The legal gymnastics of affording a definition of marriage were bound to be a headache for the drafters. The ACT Marriage Equality (Same Sex) Act 2013 made an effort, through the passage of 25 amendments, to "clarify that this is a law for same-sex marriage and the ACT is not seeking to legislate in an area of law already governed by the Commonwealth under the Marriage Act 1961."

And so we encounter the most glaring problem. We have two marriage types: same-sex and heterosexual. Legal hair-splitting is probably bound to happen: marriage is clearly a preserve of Commonwealth law, and has been defined by legislation to exclude same-sex couples from the definition. So what are the ACT legislators getting at?

It would seem to be one confused mess. While the legislators are not entering the "field" of the Commonwealth, they still claim that, "Marriage means a marriage under the [Cth] Marriage Act 1961." But consulting the dictionary definition of the act throws up the opposite: that "marriage does not include a marriage within the meaning of the [Cth] Marriage Act." It is, and it isn't, marriage within that meaning. Constitutional lawyers will be rubbing their hands in anticipation.

Change on the institution of marriage is not going to come from the ACT, which is a smaller dog in a bigger fight. The issue, rather, is how broad the marriage power of the Commonwealth is. While a plebiscite has been cited as the most democratic way of dealing with the conundrum, majority sentiment is not necessarily a good yardstick on the rights of minorities. Brennan prefers a conscience vote on the subject.

This leaves the issue of how bold the courts or the federal parliament will be in accepting that the institution of marriage as neutral of gender. This comes down to how broad the marriage power is to begin with. Does it have enough scope to move beyond the Judaeo-Christian shackles? In all probability, yes, though this does nothing to save the ACT law from itself.