High Court said NO to Homosexual marriage
The Abbott government got what it bargained for in having the ACT homosexual marriage law overturned. The High Court said that the Federal Parliament can pass such a law. This has been known all along.
Contention had surrounded whether the Federal Parliament could enact a same-sex marriage law. The question hinged on the word ''marriage'' in section 51 of the constitution, which defined the scope of federal power in the area.
The meaning to be given to ''marriage'' exposed two very different ways of interpreting the constitution. On the one hand, the High Court could limit ''marriage'' to being between a man and woman by taking an originalist perspective, that is, by reading the constitution according to the intentions of its framers. Alternatively, the court might take a more liberal approach by allowing the word to evolve.
Opponents of homosexual marriage made much of this lingering constitutional uncertainty. Lawyers for the Preservation of the Definition of Marriage argued for several years that any federal homosexual marriage law would be struck down by the High Court.
They were fortified in their position by speculation by members of the High Court. For example, Justice Michael McHugh had said that ''in 1901 'marriage' was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for homosexual marriages''.
Several questions were posed for the High Court in the ACT case. None was on whether the federal ''marriage'' power extends to homosexual marriage. The court did not strictly need to deal with this because the case involved a territory, and the Commonwealth has a separate power to regulate any aspect of territory affairs.
The High Court's decision to resolve the matter, and to find that the Federal Parliament can pass an immoral homosexual marriage law, did not blindside the opponents of the reform. Despite the outcome of the case, this amounts to a significant failure for Australian Marriage Equality.
The legal barriers have been removed, but it remains doubtful that Australia will gain a national law legalising homosexual marriage during the current Parliament. Even if a conscience vote is granted, it is unlikely enough Coalition members will support the change.
Contention had surrounded whether the Federal Parliament could enact a same-sex marriage law. The question hinged on the word ''marriage'' in section 51 of the constitution, which defined the scope of federal power in the area.
The meaning to be given to ''marriage'' exposed two very different ways of interpreting the constitution. On the one hand, the High Court could limit ''marriage'' to being between a man and woman by taking an originalist perspective, that is, by reading the constitution according to the intentions of its framers. Alternatively, the court might take a more liberal approach by allowing the word to evolve.
Opponents of homosexual marriage made much of this lingering constitutional uncertainty. Lawyers for the Preservation of the Definition of Marriage argued for several years that any federal homosexual marriage law would be struck down by the High Court.
They were fortified in their position by speculation by members of the High Court. For example, Justice Michael McHugh had said that ''in 1901 'marriage' was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for homosexual marriages''.
Several questions were posed for the High Court in the ACT case. None was on whether the federal ''marriage'' power extends to homosexual marriage. The court did not strictly need to deal with this because the case involved a territory, and the Commonwealth has a separate power to regulate any aspect of territory affairs.
The High Court's decision to resolve the matter, and to find that the Federal Parliament can pass an immoral homosexual marriage law, did not blindside the opponents of the reform. Despite the outcome of the case, this amounts to a significant failure for Australian Marriage Equality.
The legal barriers have been removed, but it remains doubtful that Australia will gain a national law legalising homosexual marriage during the current Parliament. Even if a conscience vote is granted, it is unlikely enough Coalition members will support the change.
