Australia's High Court Overturns Gay Marriage Law

[gaunty14]

Hello all

I don't think this has been posted before, but there seems to be a pattern with countries revoking previous decisions on gay marriage recently

http://www.bbc.co.uk/news/world-asia-25344219

"Australia's High Court has overturned legislation allowing gay marriage in the Australian Capital Territory (ACT).
The ACT parliament passed a bill in October making the territory the first part of Australia to legalise same-sex weddings.


But the national government challenged the decision, saying it was inconsistent with federal laws.

Some 27 couples who married since the law came into effect last weekend will now have their unions declared invalid.


The court said the issue should be decided by parliament - which in September 2012 voted down gay marriage legislation. "

[Adar]

Surprised and disappointed is my reaction, politicians should be able to pass laws within the legal framework.

[Jom]

The trend is more towards courts wanting to remove responsibility for deciding and passing that on to legislators instead. The same thing happened in India: the court there said it was for Parliament to legislate. I'm not sure what to think of this passing of the buck, because whilst it makes sense, the judiciary should always be there as a counter-balance to check laws passed by Parliament.

[Yoda Twin]

A little background, this law was not passed by the Commonwealth (or Federal Parliament) but by the Australian Capital Territory's Legislative Assembly, so this is not the High Court refuting the ability of the Commonwealth to legislate on same sex marriage, in fact the Court explicitly accepted the Cth Parliament had this ability.

First thing to realise with this decision is it is based solely on a conflict between a Commonwealth law, Marriage Act 1961 and the recently enacted Marriage Equality Act 2013 in the ACT (Australian Capital Territory). The way in which the Commowealth Constitution works, while the Commonwealth shares the plenary power to legislate on marriage with the states and territories, where an inconsistency arises between a Cth and state law, the state law will be ineffective to the extent of that inconsistency: section 109 Cth Constitution. In regards to inconsistencies between a Cth law and an ACT law, section 28 of the ACT (Self Government) Act 1988 provides that where an ACT law cannot act concurrently with a Cth law, the ACT law will have no effect.

The major issue in front of the High Court was whether the Marriage Act 1961 was the exhaustive and definitive law in respect to marriage throughout the whole Commonwealth and as such, the ACT law could not act concurrently alongside it. Considering the reasons for why the Cth Constitution grants the Cth the ability to legislate on marriage, it was always going to be a tough task for the ACT to prove that the Cth law was not of an exhaustive nature, with a reliance on an overly technical interpretation of the Marriage Act 196 emphasising the difficulties they faced.

In terms of acknowledging the Cth's ability to legislate on same sex marriage, the Court was unanimous in rejecting "originalist" interpretations of the Constitution that restricted the constitutional definition of marriage as what was known as marriage in 1900. Specifically, at [33] the unanimous judgement stated that

Rather, "marriage" is to be understood in s 51(xxi) of the Constitution as referring 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

. This gives the Cth Parliament to legislate not only on same sex marriage, but also polygamy.

[Simon Cashmere]

It's not a big deal. There is Federal law which says that a marriage is between one man and one woman. Federal law trumps state and territory law. That's all. It wouldn't have mattered what the Territory law was about, it could have been about forestry, copyright, roads, or insurance. Provided there is a Federal law that says something different, that is what triumphs. Whether it's a pet cause of the left, or not.

[Sphere]

delete

[Sphere]

This is in contrast to the US where individual states are reserved the power to set marriage laws by the 10th Amendment. The US Supreme Court ruled the Federal Defense of Marriage Act unconstitutional because it overstepped a established state right. The same principle of federalism, just switching which side has legislative supremacy in the area of marriage law.

[Gaidin]

This is in contrast to the US where individual states are reserved the power to set marriage laws by the 10th Amendment. The US Supreme Court ruled the Federal Defense of Marriage Act unconstitutional because it overstepped a established state right. The same principle of federalism, just switching which side has legislative supremacy in the area of marriage law.

That's actually an awkward argument to make. SCOTUS judges let the 10th step in when it's convenient for them and only then do they do so. The idea of having the 10th Ammendment protect the states is a pretty conservative idea, and yet it wasn't used. The 5th Amendment was used, in an awkward way, and by the liberal side of the court no less. The Conservative side of the court was quite happy to try to let DOMA stand. Theoretically, you'd think the conservative side would have an easier time striking DOMA down due to the 10th, but no.

[John ''True Grit'' Wayne]

What states allow gay marriage in the USA and what ones do not?I would guess the deep South and Bible belt areas are the latter.

[Gaidin]

What states allow gay marriage in the USA and what ones do not?I would guess the deep South and Bible belt areas are the latter.

Here.

[Fluttershy]

Here.

as the Map shows, Gay marriage is legal in the civilized parts of the US (the Northeast and Cali) and illegal in the areas inhabited by the subhumans, or "Southerners" as we call them in the Northeast. There are rumors that there are actually people living in the non coastal states but its unsubstantiated rumor at this point.

[Michele Bachmann]

A victory for morality.

[sleepyx732]

as the Map shows, Gay marriage is legal in the civilized parts of the US (the Northeast and Cali) and illegal in the areas inhabited by the subhumans, or "Southerners" as we call them in the Northeast. There are rumors that there are actually people living in the non coastal states but its unsubstantiated rumor at this point.

Gee, I wasn't aware places like North Dakota was considered 'Southern' now (or subhuman as you so delicately put it). Though perhaps it's lost it's meaning, and now it's just a gross generalization of everyone who you think disagrees with you.

I'm glad to know though that allowing two gay men to sign a mere piece of paper that says they are legally bound to each other is what separates the civilized from the subhumans. The odds of you spending the rest of your with this one specific person and not getting bored, are slim at best. I'm all for allowing gays to be married though, the tax benefits can be enormously helpful, especially in today's world.

[Fluttershy]

Gee, I wasn't aware places like North Dakota was considered 'Southern' now (or subhuman as you so delicately put it). Though perhaps it's lost it's meaning, and now it's just a gross generalization of everyone who you think disagrees with you.

I'm glad to know though that allowing two gay men to sign a mere piece of paper that says they are legally bound to each other is what separates the civilized from the subhumans. The odds of you spending the rest of your with this one specific person and not getting bored, are slim at best. I'm all for allowing gays to be married though, the tax benefits can be enormously helpful, especially in today's world.

North Dakota isnt southern, its part of the uninhabited wasteland that lies between the east and west coast.

every american knows this

[Denny Crane!]

So essentially they brought the law in cack handedly and should have brought it in at Federal level or not at all?

Ok silly bloody politicians, so back to work for them, and the day moves on.

[Simon Cashmere]

The ACT government is normally left wing government, a bit like Washington DC. Just composed of an electorate of the working poor, the underclass welfares and the elite civil servants. So it was more a 'dare' to the Feds to strike it down. What no one has thought of is that the Federal government may not have the constitutional power to enact it. It is given power over 'marriage', which must have at the time of 1901, meant between a man and a woman, not two men or two women. Its just impossible to say I think that the framers of the constitution had gay marriage in mind when they gave the Feds power over marriage. So then, you'd need a referendum, which people almost always vote No in.

[Yoda Twin]

The ACT government is normally left wing government, a bit like Washington DC. Just composed of an electorate of the working poor, the underclass welfares and the elite civil servants. So it was more a 'dare' to the Feds to strike it down. What no one has thought of is that the Federal government may not have the constitutional power to enact it. It is given power over 'marriage', which must have at the time of 1901, meant between a man and a woman, not two men or two women. Its just impossible to say I think that the framers of the constitution had gay marriage in mind when they gave the Feds power over marriage. So then, you'd need a referendum, which people almost always vote No in.

This argument fails to consider the very reason for why the marriage power was included in the Constitution, to avoid the plague of differing marital laws across the Commonwealth. So if say in 20 years marriage equality around the world is the norm, denying the Commonwealth to legislate for same sex marriage would go directly against the very reason for why the power was included in the Constitution, as the states would be forced to pick up the slam and legislate it.

Not to mention that whenever exposed to originalism, the current bench of the High Court has laughed it off as irrelevant.

[Denny Crane!]

Or just remove marriage from the state altogether, no? If you don't give it any more power you just take it away then I would presume that bypasses both constitutional difficulties and the need for reform. In the UK there isn't a massive distinction between common law partnerships and marriages in terms of rights (perhaps none, I think the problem is getting institutions to remember that) so its not so revolutionary an idea.

[Simon Cashmere]

Not to mention that whenever exposed to originalism, the current bench of the High Court has laughed it off as irrelevant.

Done a few special leave applications have we?

I think it's a stretch to say that the word 'marriage' in 1901 was intended to mean, gay marriage. But then again, maybe the High Court would do that. Who knows. I called bs on their whole complicated franchise tax scenario and then they did Ha v the Cth, so who knows what they'll do.

Tony Abbott could have theoretically passed a law using section 122 to strike it down, but, he has a hostile senate - and its far easier to let the High Court do it.

[Yoda Twin]

Done a few special leave applications have we?

I think it's a stretch to say that the word 'marriage' in 1901 was intended to mean, gay marriage. But then again, maybe the High Court would do that. Who knows. I called bs on their whole complicated franchise tax scenario and then they did Ha v the Cth, so who knows what they'll do.

Tony Abbott could have theoretically passed a law using section 122 to strike it down, but, he has a hostile senate - and its far easier to let the High Court do it.

It's irrelevant what the word marriage meant in 1901 for interpreting what s 51(xxi) actually gives the Commonwealth the power to legislate on, a stance the HCA made explicitly clear in this very decision. Again, s 51(xxi) existed to provide the Cth with the ability to create a single exhaustive law on marriage in the Cth. An interpretation of s 51(xxi) that denies the Cth with the ability to legislate for same sex marriage denies the power to do what the framers wanted it to do.

In terms of the current bench's dislike for originalism, it's hardly subtle. The 6-0 judgement in this case explicitly said that if anything, interpreting provisions with the Constitution provides more questions that it answers. The only justice of the court in the past 30 years that said to of favored originalism was Heydon, and he became so at odds with the rest of the bench that he became more isolated in his views than Kirby did during Gleeson's tenure as Chief Justice. This isolation was most evident in his last opinion for the HCA in Monis v The Queen, where his frustration turned to the obscene, though it did provide some comic relief.