High Court on gay marriage - two steps forward, one step back

Two steps forward, one step back. It's a cliche but in the case of this week's decision in the High Court striking down ACT same-sex marriage legislation it is most apposite.

The irony of the decision is that while it struck down ACT same-sex marriage legislation it also was a further step on the way to true marriage equality.

Undoubtedly, those couples that rushed to wed in the period between the hearing of the case and the decision are distraught at having the legal recognition of their relationship stripped from them.

However, the great weakness of the ACT legislation was that in order to get around the prohibition on same-sex marriage in the Commonwealth Marriage Act, lawyers needed to argue that an Act entitled Marriage Equality (Same Sex) Act did nothing of the sort. Rather, they argued it established a legal relationship that wasn't in fact marriage and was different.

In their unanimous decision, High Court judges identified this as a key weakness in the ACT case.

"The Territory submitted that the Marriage Act and the ACT Act "do not regulate the same status of 'marriage," judges said.

"As both the short title and the long title to the ACT Act show, the Act is intended to provide for marriage equality.... By providing for marriage equality, the ACT Act seeks to operate within the same domain of juristic classification as the Marriage Act."

But in finding that the Commonwealth has the constitutional power to make laws in relation to marriage, the Court also went out of its way to highlight that the power was not limited to wedlock between a man and a woman.

This is the real significance of the High Court's decision. The Commonwealth Solicitor-General in arguments before the Court went out of his way to avoid the issue of whether the constitutional power - s51 (xxi) - was limited by the understanding of its marriage at the time of federation.

That is, the understanding of the scope of the power at federation was informed by a number of 19th Century English cases that marriage was only between a man and a woman. The Commonwealth Solicitor-General argued there was no need to address this issue in order to find the ACT legislation invalid.

But the Court was not to be dissuaded by the Commonwealth from addressing the scope of the marital power. Instead, it went out of its way to stress the content of the power was one that had changed as Australian society changed. And it was prepared to give a broad ambit to the scope of the constitutional power -  as the modern High Court is prepared to do in relation to other heads of power - defining it without reference to religion, history or sexuality.

Somewhat provocatively, the Court even suggested the marriage power could encompass could include polygamous relationships, as it is in some other countries.

"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," the Court said.

The real power of the court's decision then is that it is no longer possible for groups like the Australian Christian Lobby to claim that marriage is only between a man and a woman or that it is fixed by reference to out-dated values.

As the Court makes clear, it is not possible to limit the legal concept of marriage "by confining attention to the marriage law of only those countries which provide for forms of marriage which accord with a preconceived notion of what marriage 'should be'".

In the rarefied world of this High Court, this goes as close to a slap-down of the religious right as you get.

In doing so the High Court hand-balled the issue of marriage equality back to Federal parliamentarians and reminded those seeking real marriage equality that it can only occur if the artificial constraint on the scope of s. 51(xxi) is removed in the place it was created in 2004. It is not achieved through state or territory level legislation creating a legal artifice to get around a federal discriminatory law.

Now the Government cannot hide behind the claim that it does not have the constitutional power to recognise same-sex marriage.

So while the Abbott Government may have won the day in the High Court, it is highly likely the battle will return to parliament, which will eventually come to the same decision as the High Court and many other countries have done. And it is highly likely that battle will not only divide the Coalition but also the Labor Party. But more about that in a future blog post.