Reviving the tradition of local marriage laws

This week the High Court will conduct hearings in the first ever case on marriage equality in Australia.

The Federal Government has challenged the ACT's Marriage Equality Act on a range of grounds.

The constitutional arguments are pretty clear cut: the Feds say their Marriage Act is the final word on the issue while the ACT says it can legislate for same-sex marriages because the Feds don't.

But not so much attention has been paid to the Federal Government's broader arguments about marriage which are both bizarre and implicitly homophobic.

The Feds make the case that marriage is an "indivisible" and "binary" concept. There can only be one legal definition of marriage and hence only one law to define it. You are either married under such a law or you are not.

This will come as a surprise to the millions of Australians in de facto marriages.

They are living proof that "marriage" is neither binary nor indivisible.

They are also proof that states have a role in recognising marriage-like relationships because it was the states that led the way towards equal legal protection of de facto marriages.

Not surprisingly the Federal Government's submissions are almost silent on the issue of de facto marriages.

The other string to the Feds' bow is that it is "natural" for marriage law to be made at a national level, and that a state or territory law can only "mimic" marriage.

The Feds' evidence for this proposition is that this is how the Romans legislated for marriage and it's how marriage is legislated in Australia today.

This argument is extraordinary. How can a law made by one parliament be more "natural" than a law made by another?