In defence of state and territory same-sex marriage laws

The ACT Government has announced its intention to pass legislation within weeks to allow same-sex couples to marry.

NSW is also expected to move forward soon with the blessing of Premier, Barry O'Farrell.

Same-sex marriage legislation, narrowly defeated in the Tasmanian Upper House last year, will soon be re-introduced, as will parallel legislation in South Australia.

By the end of the year, somewhere in Australia, same-sex couples will begin to marry and the debate will have changed forever.

Images of happy couples and their celebratory families will do more than anything else to dispel the doubts of those unfamiliar with same-sex marriages and undermine the fear-mongering of those opposed to such marriages.

The small minority of Australians deeply antagonistic to marriage equality know the first state or territory marriages will be a turning point so they will do all they can to stop them.

They are already urging the Abbott government to step in and pass overriding legislation through federal parliament.

This could take the form of a) a general amendment to the Territory's Self Government Act limiting its power to make marriage laws, b) legislation specifically overriding the Territory's Marriage Equality Act, or c) an amendment to the federal Marriage Act stating explicitly that the states and territories can't enact same-sex marriage laws because the Marriage Act "covers the field".

My hope is that Mr Abbott respects the ACT Government's mandate on this issue in the same way he expects respect for his mandate.

The esteem in which he holds the Constitution should see him step aside and allow the High Court to independently umpire the question of whether states and territories can pass laws for same-sex marriages.

The esteem in which he holds traditional institutions like marriage should soften his concern about the marriages of those couples who seek only to share and uphold that tradition.

But if the Federal Government does move against the ACT, or against all the states and territories together, attention will shift to Labor.

If Labor considers federal intervention a matter of state and territory self-determination it won't allow a conscience vote and the override will fail, at least until the Senate changes in eight months.

If Labor considers federal intervention a matter of marriage equality it is bound to have a conscience vote and the override will probably succeed.

Given that Kevin Rudd's support for marriage equality helped save several inner-city seats for Labor, and didn't cost seats in suburban NSW and Queensland as the nay-sayers predicted, Labor has a clear mandate to uphold legal same-sex marriages.

Whichever course Labor takes, state and territory initiatives will be as much a test of the ALP's new leader as it is of the nation's new Prime Minister.

It's likely any move against the states and territories and will be couched in constitutional terms, so as not to appear prejudiced.

For example, the Howard Government had an avalanche of minor concerns about the ACT Civil Union Bill it quashed in 2006, most of which could be resurrected to draw attention away from the principles behind the ACT Government's initiative.

But there will also be one big, resonant concern: that something as important as marriage is properly a federal matter.

We will be told the Constitution reserves the power to make laws for marriage to the Commonwealth, that it is a step backwards for there to be a patchwork of marriage laws across the nation, that state same-sex marriages are second-rate marriages because they are only for same-sex couples and are not recognised federally or in other states, and that it is a cruel deception to allow same-sex couples to marry under laws that could be undone by the High Court.

Such myth-making ignores three key facts.

The first is that the power to make marriages in the federal constitution is shared by the Commonwealth and the states, meaning that the states can step in and make laws for any type of marriage the Commonwealth balks at.

This was acknowledged by a recent NSW parliamentary report into the issue of state marriage laws which declared the belief in exclusive federal power over marriage to be "an error of fact".

While it's true there could still be a High Court challenge to a state law, there could just as easily be a challenge to an equivalent federal law.

It's not the role of legislators to second-guess the High Court. If they did, no marriage equality law, indeed few laws at all, would ever be passed.

The second fact is that laws for personal relationships have always been made first by the states and territories, and only later by the Commonwealth.

All heterosexual marriages were performed under state laws until the federal Marriage Act was passed in 1961.

The recognition of opposite-sex and same-sex de facto unions occurred first at a state and territory level before their recognition in national law.

Civil partnerships were established at a state level first, and were only later acknowledged in federal law.

Not only can the states and territories be the first to make laws for same-sex marriage, according to the logic of federalism it would be anomalous if they weren't the first.

The third fact is that couples don't care what statute they marry under.

My parents didn't know or care that when they married in 1959 it was under a state law.

Neither do same-sex couples today care about the details of the law they marry under, who has enacted it, or where it is recognised.

All they care about is that they can make solemn, legally-binding vows of life-long commitment before their families and friends.

The aspiration at the heart of the marriage equality movement is for same-sex couples to have the option of legally marrying.

State and territory laws do this just as well as federal law.

Australia is in for a heated national debate about the validity of state and territory same-sex marriage laws.

When supporters of these laws step up, let it not just be to defend the principle of dignity and equality for same-sex couples.

Let it also be in defence of our federal system and its capacity for adaption and innovation.

In his book defending Australia's constitutional monarchy, Tony Abbott wrote approvingly about our federal system.

In his words, "power divided is power limited", "if they (the states) did not exist we would have to invent something very much like them" and we should "keep politics out of our biggest decisions because some things are too important for 'winning' and 'losing'".

We can only hope he still holds to these traditional values.