Image for Constitutional question not an excuse to fail to act on same-sex marriage

A response to Michael Stokes’ Marriage Act validity, on TT, HERE

In 2005 Professor George Williams startled the nation by suggesting that the Howard Government’s restriction of federal marriage law to heterosexual couples opened up the possibility of allowing same-sex marriages in state law.

( William’s opinion: )

In response, the Tasmanian Greens proposed state same-sex marriage laws. Green and Labor MPs in South Australia, Victoria and NSW have followed suit.

Since William’s made his case, constitutional lawyers have argued over the issue. Some, like Melbourne Uni’s Prof Kris Walker, agree with him. Some, like Tas Uni’s Prof Michael Stokes, do not.

( Walker’s opinion: )

Stokes’ opinion:

What all of the experts agree on is that it is impossible to be absolutely certain about the validity or invalidity of state same-sex marriage laws until the High Court has ruled on the constitutional definition of marriage.

This has been used as an excuse by some state legislators, including those who support the principle of same-sex marriage, to dismiss the state same-sex marriage laws out-of-hand and to declare same-sex marriage “a federal issue”.

But what they routinely ignore is that exactly the same concern is put forward by national legislators to dodge their responsibility to legislate for equality.

Attorney-General, Robert McClelland, has regularly alluded to the possible constitutional barriers to amending the federal Marriage Act to allow same-sex marriages.

Labor Senator, Ursula Stephens (who doesn’t see a contradiction between being a junior minister for social inclusion and excluding gays from key social institutions), is quite clear about the issue in a recent post on her website:

(Stephen’s post: )

“There are persuasive statements by High Court judges that the word “marriage” in the Australian Constitution means monogamous and heterosexual marriage….So the question for me as a Federal parliamentarian is, how do I most responsibly act when presented with legislation which, on face value, seems to uphold justice for homosexual people, but which contravenes the Constitution…Firstly, I must do my best to uphold the law. Federal parliament cannot expand the meaning of constitutional words that give it power. It might be possible, some time in the future, to persuade a majority of the High Court to rule that the word could include homosexual marriage. But the point is that it is the High Court, and not the Parliament, that has the power to do that. Alternatively it could be done by an amendment to the Constitution pursuant to a referendum.”
This is not just a statement about the Federal Parliament’s lack of power to allow same-sex marriages. It is an implicit threat from a leading Catholic legislator that if the Parliament does succeed in legislating for same-sex marriage that legislation will be challenged on exactly the same basis as a state same-sex marriage law would be.

In short, the constitutionality of legislating for same-sex marriage will raise the same constitutional questions and likely face the same High Court challenge, regardless of whether that legislation is state or federal.

A political defeatist or legal conservative might say that’s altogether the end of the matter of same-sex marriage. But it can’t be. Marriage equality has the support of an ever larger percentage of Australians. It is being enacted in an ever growing list of other countries. The cry for equality grows louder and louder.

It is morally and politically untenable for Australia’s legislators not to act, at some level at some stage.

It is certainly untenable for them not to act on the basis of fear of the High Court.

Constitutional questions have hung over many pieces of landmark legislation, not least Federal laws blocking the Franklin Dam and rendered Tasmania’s former anti-gay laws inoperative. Why should marriage equality be any different?

The question before Tasmanian legislators is not “would federal legislation be constitutionally safer?”. It wouldn’t.

Nor is the question “can we ignore this and hope it goes away?”. It won’t.

The question before state MPs is “should every citizen be free to marry the person they love?”

As someone who profoundly values that freedom, I will be listening intently to if and how they respond to that question when next they are faced with state same-sex marriage legislation.

For further recent comment by Rodney Croome on marriage equality see

Rodney Croome is a spokesperson for the Tasmanian Gay and Lesbian Rights Group and Campaign Director of Australian Marriage Equality.