The Territory of Marriage: Constitutional Law, Marriage Law and Family Policy in the ACT Same Sex Marriage Case

Abstract

This paper reviews the background to the High Court of Australia’s decision in the Australian Capital Territory same sex marriage case and traces the origin of the Court’s surprisingly broad definition of what marriage is for the purposes of the marriage power in s.51(xxi) of the Australian Constitution. It reached this definition largely as a result of suggestions put from the Bench in oral argument, without the benefit of detailed written submissions on the subject by either the Commonwealth or the Australian Capital Territory, and in the absence of a contradictor. Intrinsic to the Court’s reasoning was the proposition that unless 'marriage' in s. 51(xxi) included same-sex marriage then the Commonwealth would not be able to legislate so as to prevent the States or Territories from establishing same-sex marriage. In finding that the Commonwealth’s power with respect to marriage does extend to same-sex and other forms of marriage, the Court adopted a remarkably one-sided view of the existing case-law on the scope of Commonwealth heads of power. It also did not take into consideration the wealth of case-law directed specifically to the scope of the marriage power. The importance of the new definition is that now marriage policy in Australia does not depend in any significant way on issues of constitutional law. While much has thereby been settled, much is now also unsettled. Marriage is, to a great extent, whatever the federal Parliament says it is, so long as the union is a consensual one between persons (however young) and recognised by law as intended to endure. Specifically the Court has determined that the Constitution places no barrier in the way of polygamous relationships. What view of marriage the Parliament chooses to adopt is a matter for political debate. Four options for a coherent policy on marriage and family are identified in the light of the High Court’s judgment on the scope of the marriage power. These are (1) to continue with the current policy of treating all kind of unions as if they were marriages, irrespective of consent and whether or not they are intended to endure, (2) to differentiate clearly between ceremonial marriage and informal relationships, (3) to return to the idea that marriage is based on nothing more than witnessed consent without the need for a celebrant, and (4) to base family policy on the twin axes of marriage and parenthood.