High court indicates that if parliament recognises equal marriage, it won’t stand in the way

Equal marriage campaigners should be celebrating the high court’s rejection of the ACT’s Marriage Equality Act.

True, months of legislative effort went up in smoke when six judges handed down their unanimous decision. And 31 gay and lesbian marriages celebrated so publicly in Canberra this week bit the dust.

But the high court has done remarkable work. It went out of its way to declare that that there are no historical, religious or constitutional barriers to same-sex marriage in Australia. The way is open so long as the law is national.

Theirs is not the language of equal marriage advocates, but the judges unanimously declared that in 2013 old notions of Christian matrimony don’t decide the meaning of marriage in the Australian constitution.

“Marriage law is and must be recognised now to be more complex,” they said. “Some jurisdictions outside Australia permit polygamy. Some jurisdictions outside Australia, in a variety of constitutional settings, now permit marriage between same-sex couples.

“These facts cannot be ignored or hidden. It is not now possible [if it ever was] to decide what the juristic concept of marriage includes 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.”

Politicians may decide, as they did under John Howard in 2004, that marriage in Australia will be allowed only between men and women. But that’s politics, declared the judges, not constitutional law.

For those Australians who support same-sex marriage, the key passage in the high court judgment is a definition of marriage blind to gender: “Marriage is to be understood in the constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements…”

The ACT law came undone for trying to muscle in on the commonwealth’s territory. Not wanting to replicate in Australia the chaos of marriage laws in the United States, the founding fathers here decided on one national law for marriage and divorce.

The ACT government argued the national parliament had given the territory room to move in 2004 by ruling out same-sex marriage. So the commonwealth would look after heterosexual marriage and the ACT homosexual marriage.

The court was not persuaded. “The absence of a provision permitting same sex marriage does not mean that the territory legislature may make such a provision. It does not mean that a territory law permitting same sex marriage can operate concurrently with the federal law.”

So by a vote of 6-0 the ACT’s law died. But the message of the judgment went far beyond the death of this venturesome piece of legislation. The judges are saying as clearly as they can that if the national parliament recognises equal marriage, the high court won’t stand in its way.

For campaigners, the only battle ahead is political.