Wednesday, December 11, 2013

The Australian Capital Territory (ACT) - - - akin to Washington, D.C. for those familiar with the United States - - - passed a "marriage equality act" allowing for same-sex marriages. Australia's High Court has declared the ACT's marriage act invalid in The Commonwealth of Australia v. The Australian Capital Territory, [2013] HCA 55.



Here's the Court's "judgement summary":

Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961. The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament.



The Court held that "marriage" in s 51(xxi) of the Constitution refers 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. "Marriage" in s 51(xxi) includes a marriage between persons of the same sex.



The Marriage Act does not now provide for the formation or recognition of marriage between same sex couples. The Marriage Act provides that a marriage can be solemnised in Australia only between a man and a woman and that a union solemnised in a foreign country between a same sex couple must not be recognised as a marriage in Australia. That Act is a comprehensive and exhaustive statement of the law of marriage.



The Court held that the object of the ACT Act is to provide for marriage equality for same sex couples and not for some form of legally recognised relationship which is relevantly different from the relationship of marriage which federal law provides for and recognises. Accordingly, the ACT Act cannot operate concurrently with the federal Act.



Because the ACT Act does not validly provide for the formation of same sex marriages, its provisions about the rights of parties to such marriages and the dissolution of such marriages cannot have separate operation and are also of no effect.



The Court held that the whole of the ACT Act is of no effect.





The Court's unanimous opinion is mostly concerned with whether the ACT marriage act and the federal marriage act are inconsistent. The constitutional issues lurk in the background: Australia's constitution gives the federal government power over marriage. As the opinion states:

Section 51(xxi) of the Constitution gives the federal Parliament power to make laws with respect to "marriage". Section 51(xxii) gives the Parliament legislative power with respect to "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants". Both powers were included in the Constitution to avoid what the framers saw as a great defect in the United States Constitution. The object of the powers was to enable the federal Parliament to provide uniform laws governing marriage and divorce.

Once the inconsistency is determined - - - and there was an argument that the laws could be interpreted as not inconsistent, but this failed - - - then the federal law must prevail.

As the opinion states, "Under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law (as a majority of the Territory Legislative Assembly decided) is a matter for the federal Parliament."

https://lawprofessors.typepad.com/conlaw/2013/12/australia-high-court-invalidates-acts-marriage-equality-act-as-unconstitutional.html