Waiting for the High Court to decide the same sex marriage case
I had the opportunity today to read the court transcript of the appearance. The transcript is long, and it is unclear from the questions asked by the High Court justices as to what are their positions concerning the case.
The arguments were predictable: the Commonwealth said that the Marriage Act covered the field, and therefore there was no room for the ACT Act, while the ACT and Australians for Marriage Equality said that it did not.
The Commonwealth not surprisingly played on the historical nature of marriage, as part of its argument that the Marriage Act covered the field.
In the transcript were a couple of gems about marriage.
Ms Eastman SC for the ACT said:
“The first is, has the Commonwealth demonstrated that the Marriage Act is a complete and exhaustive statement of the law covering who may marry, how a person may marry and valid marriages for Australia by reference to the terms, the nature or the subject of the Marriage Act and the Commonwealth says at the present time it is confined only to marriages between persons of the opposite sex.
The second question, and perhaps this reflects the matters that your Honour Justice Hayne has just mentioned, but we would say the second question is this, whether on a proper construction of the Marriage Act, is there a negative implication that arises that the ACT is precluded from legislating with respect to marriage that is not defined as a marriage for the purpose of Marriage Act and perhaps if I use this metaphor, has the Commonwealth cleared the field?”
She went on to say:
“Marriage is a social and legal institution. For many, marriage is also, and primarily, a sacrament or an institution of religious significance, but it is in the character of a legal institution that marriage is a subject of legislative power conferred on the Parliament by s. 51(xxi) of the Constitution….There is no dispute between the parties that marriage is an important social institution. There is no dispute between us that that social institution has changed over time and, no doubt, will continue to change. The liberty to marry or not to marry, as the case may be, has never altered over time and individuals remain free to choose their spouse subject to any express prohibition found in the law. So, the negative requirements for the purpose of the Marriage Act (Cth) for the most part are directed to age and issues of prohibitive relationships, affinity or consanguinity.”
Mr Kirk SC for Australians for Marriage Equality said:
“Marriage, in our respectful submission, is very much the sort of thing which is dynamic and was in motion and changing over the course of time such that it is precisely not the sort of thing which would be taken to crystallise and freeze as at 1900. Your Honour Justice Crennan referred this morning to patents or design marks over smells and colours, for example. That is an illustration of how things evolve.”
Mr Gleeson SC for the Commonwealth said:
“We would disagree with the ACT’s proposition that this “marriage” is just an expression where the ACT is permitted to allow for people to take up that expression who cannot take up that expression under the Commonwealth law. That is to devalue legally the significance of marriage as an institution as reflected in the Commonwealth laws and to that extent to subordinate the Commonwealth’s conception of the role of marriage to the ACT’s perception that this is simply an expression which ought to be extended to a larger group of people.”