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Same-sex marriage is a pending constitutional battlefield

On the weekend it was reported that Tasmania intends to legalise same sex marriage despite the Commonwealth Marriage Act 1961 defining “marriage” as being between a man and a woman. Given that apparent discrepancy, does Tasmania have the power under our Constitution to pass a same-sex marriage law? I will briefly answer this question below. I also refer people to the detailed advice on this matter given by Professor George Williams in 2005.

Australia is a federation. Under our Constitution, power is split between the federal government (“the Commonwealth”) and the States. Most of the federal government’s powers are spelt out in section 51. Under s. 51(xxi), the Commonwealth has power over the subject matter of “marriage”: this provision provides the Commonwealth’s authority to enact the Marriage Act. However, the powers in s.51 are “concurrent” powers, meaning they are shared between the Commonwealth and the States. Hence, the States too have power over marriage.

Given that the Commonwealth and the States can legislate in the same area, there is the potential for inconsistency. Section 109 of the Constitution tells us how to resolve inconsistencies. Basically, the Commonwealth law will prevail.

So how is “inconsistency” determined? Is it likely that the Tasmanian Act would be struck down as being inconsistent with the Commonwealth Act? I speculate on this below, though it is acknowledged that there is as yet no draft of the proposed Tasmanian law. Bills, which have since lapsed, circulated in 2005 and 2008.

The first test of inconsistency is to ask whether simultaneous obedience is impossible. Does one law compel what the other demands? This test will not apply. For a start, neither the Commonwealth Act or any proposed Tasmanian Act will compel anybody to get married.

The second test is to ask whether one law confers a right taken away by the other. Certainly, the Tasmanian law would grant a right for same sex couples to get married which is not recognised under Commonwealth law. But the Commonwealth does not take away such a right: it does not prohibit same sex marriage at the State level. The Marriage Act has nothing to say about that matter.

The most likely source of inconsistency, if one exists, lies under the third test of “cover the field” inconsistency. Under this test, a State law will be deemed to be inconsistent if it is found that the Commonwealth intended for its law to be the sole law on the topic in question (ie. it intends to “cover the field”).

With regard to the Commonwealth’s intention, section 6 of the Marriage Act explicitly preserves the validity of State and Territory laws relating only to the registration of marriage. Section 6 therefore seems to implicitly exclude the validity of State and Territory laws relating to other aspects of marriage. That is, the Commonwealth has signalled an intention to cover the field of all aspects of marriage besides registration. Which is not promising for the Tasmanian law.

But what in fact is “the field” of the Commonwealth law? Identifying the field (ie the topic of a law) for the purposes of section 109 is notoriously unpredictable.

If the field is “marriage”, then the Tasmanian law would be in constitutional trouble. However, Professor Williams suggests that the field is in fact “opposite sex marriage”, thus leaving the field of “same sex marriage” open for the States. In this regard, he points to the parts of the Commonwealth Act dealing with the recognition of marriage solemnised in foreign countries. Section 88EA makes it clear that same sex marriages conducted overseas are not recognised as “marriages” under the Commonwealth law. Given the Parliament clearly turned its mind to this issue, it is significant that the law says nothing about the recognition of same sex marriages conducted in Australia. That may indicate that that field was simply vacated for the States. On the other hand, given that s88EA deals to a small extent with same sex marriage, that may make it more difficult to argue that the field of the law is confined to “opposite sex marriage”.

The explicit reference to marriage being between a man and a woman in the Marriage Act was introduced by amendments in 2004, and was clearly designed to head off arguments that the Act allowed same sex marriage. Ironically, if Professor Williams is correct, the Howard government amendments may also have the effect of reducing the field of the Commonwealth law, and opening up space for Tasmania to fill.

There are international precedents for same sex marriages being performed at a provincial rather than national level. Same sex marriage is permitted and recognised in a number of US states, but not at the federal level. They are also performed in Mexico City, and these marriages must be recognised throughout Mexico.

If Tasmania is to pass the proposed legislation, it will complete a remarkable journey. Tasmania was the last State to decriminalise same sex relations. In 1994, those laws were found by a United Nations body to breach Australia’s international human rights obligations in Toonen v Australia. The State government only reluctantly repealed the law in 1997 when it became clear that they were unconstitutional, as the Commonwealth had overriden them in 1994 in response to the UN decision. Now it seems that Tasmania may be the first domino to drop in recognising same sex marriage.

Such a law will likely face constitutional challenge, and it is not certain that it would survive. However, any victory by same sex marriage opponents could well be short-lived, as the momentum towards acceptance of same sex marriage in this country seems unstoppable.