Saturday, 13 August 2011

Same Sex "Marriage" and the Australian Constitution

     The enemies of society keep a close watch on developments in Britain, Europe, and especially America, and anything they get away with overseas, they then attempt in Australia. So we should not be surprised that the push for same sex "marriage" has now reached our pristine shores. The Greens, of course, have been pushing it for ages, for reasons which have nothing to do with protecting the environment, and everything to do with promoting the personal perversion of their founder and head. The Socialist Left, and now the whole Labor Party, are also pushing it, because they follow the religion of political correctness rather than the party of Curtin and Chiffley, who are no doubt turning in their graves.
     However, at the risk of being called a spoil-sport, I should like to point out that such a law, if enacted, would probably fall foul of the Australian Constitution.
     To clarify the matter, let us look at a topic which may appear irrelevant but which, on further examination, will be found to be very germane. Section 80 of the Constitution states:
The trial on indictment of any offense against any law of the Commonwealth shall be by jury...
     But what is a jury? This becomes an issue when state courts try a federal offense, because South Australian law permits verdicts by a majority of 10 jurors out of 12. The crunch came in the High Court decision of Cheatle v The Queen (1993) 177 CLR 541. The judges examined the entire case history, and established that unanimous verdicts had been a requirement in jury trials since 1367, and so were therefore required by the Constitution. The point was, that "jury" had an established meaning at the date the Constitution was written (1900), which could not be changed by Parliament. When you look at it, this is plain common sense. If Parliament could define any group, however determined, to be a "jury", and any method of decision making a "trial", they would be able to whittle away, and eventually destroy, the very safeguards the section of the Constitution was intended to provide. As the court explained:
It is well settled that the interpretation of a constitution such as ours is necessarily influenced by the fact that the provisions are framed in the language of the English common law, and are to be read in the light of the common law's history.
    The same rule held for the Federal Parliament's jurisdiction over trade marks in section 51(xviii). That also had a specific meaning in 1900. As explained by Chief Justice Griffith in "the Brewery case" of 1908 (6CLR469 at 513):
With regard to this species of property the power of Parliament is absolute ... but they cannot by calling something else by the name trade mark, create a new and different kind of industrial property. 
    What has this got to do with same sex "marriage"? Plenty. Because section 51(xxi) of the same Constitution gives the Federal Government jurisdiction over marriage. Unlike the situation in the U.S., in Australia there cannot be as many marriage laws as there are states. State and Federal Governments can choose to give married and unmarried couples the same rights and services in any area under their respective jurisdictions, but only the Federal Government can tell us who are married. But this does not mean that it can take control of any grouping by calling it "marriage". As Justice Brennan put it, in the case of Fisher v Fisher (1986):
[C]onstitutional interpretation of the marriage power would be an exercise of hopeless circularity if the Parliament could itself define the nature and incidents of marriage by laws enacted in purported pursuance of the power. ...  [T]hose words do not empower the Parliament to legislate upon the customary incidents of marriage so as to affect the nature of the marriage relationship.
     Marriage had a specific meaning under the common law at the date of the Constitution - and it goes back not simply to 1362, but as far as human memory runs.
     And what is that meaning? I shall merely cite the relevant case law prior to 1900. We shall start with an early one: Sir William Scott's comments in Lindo v Belisario (1795), 1 Hag. Con. 216 at pp 230-231:
It is held by some people that marriage is a contract merely civil - by others, that it is a sacred, religious, and spiritual contract, and only so to be considered. The jurisdiction of the Ecclesiastical Court was founded on ideas of this last described nature; but in a more correct view of this subject, I conceive that neither of these opinions is perfectly accurate. According to juster notions of the marriage contract, it is not merely either a civil or religious contract; and, at the present time, it is not to be considered as originally either one or the other. It is a contract according to the law of nature, antecedent to civil institution, and which may take place for all intents and purposes, wherever two persons of different sexes [my emphasis] engage, by mutual contracts, to live together. Our first parents lived not in a political society, but as individuals, without the regulation of any institutions of that kind. It is hardly necessary to enter something of a protest against the opinion, if such opinion exists, that a mere commerce between the sexes [ie sexual intercourse] is itself marriage. A marriage is not every casual commerce; nor would it be even in the law of nature. A mere casual commerce, without the intention of cohabitation, and bringing up of children, would not constitute marriage under any supposition. But when two persons agree to have that commerce for the procreation and bringing up of children, and for such lasting cohabitation, - That, in a state of nature, would be a marriage, and in the absence of all civil and religious institutes, might safely be presumed to be, as is popularly called, a marriage in the sight of God.
     He said much the same thing 16 years later, in the case of Dalrymple v Dalrymple (1811), 2 Hag. Con. 54, at 62:
Marriage, in its origin, is a contract of natural law; it may exist between two individuals of different sexes [emphasis added], although no third person existed in the world, as happened in the case of the common ancestors of mankind: It is the parent, not the child, of civil society.
     If a marriage has been made under some other jurisdiction, other than the common law, is it still valid under the common law? Of course it is, and always has been - provided that it satisfies the definition of "marriage" in the common law. As expressed by Lord Brougham in Warrender v Warrender (1835), 2 Cl. & Fin. 488 at 531:
But marriage is one and the same thing substantially all the Christian world over. Our whole law of marriage assumes this; and it is important to observe, that we regard it as a wholly different thing, a different status, from Turkish or other marriages among infidel nations, because we clearly never should recognise the plurality of wives, and consequent validity of second marriages ...
     Very well, it is established that polygamous marriages are never marriages under the English common law - and so cannot have been included in the meaning of the word in section 51(xxi). (This also makes it difficult to see how the union of two men or two women could be included.) But what happens in the case of "potentially polygamous" marriages; that is, a monogamous union contracted under a jurisdiction which permits a second wife? The issue came to a head with the case of Mr Hyde, an Englishman who went to Utah, married a Mormon, then afterwards left both the religion and his wife, and now wanted a divorce on the grounds of her adultery. It was ruled that the marriage had never been valid in the first place. As Lord Penzance put it in Hyde v Hyde & Woodmansee (1866) L. R. 1 P. & D. 130 at 133:
I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.
     22 years later the same issue arose when a Christopher Bethell presented having married a woman of the polygamous Baralong tribe of Africa, according to its customs. However, according to Justice Stirling in Re Bethell, Bethell v Hildyard (1888), 38 Ch. D. 200 at 234:
I am bound to hold that a union formed between a man and a woman in a foreign country, although it may bear the name of marriage, and the parties to it may there be designated husband and wife, is not a valid marriage according to the law of England unless it is formed on the same basis as marriages throughout Christendom, and be in its essence "the voluntary union for life or one man and one woman to the exclusion of all others".
     Two years later, the matter arose again, this time in the case of a marriage contracted in Japan. Again, Justice Hannen ruled, in Brinkley v A-G (1890) 15 P. D. 76 at 79:
A marriage which is not that of one man and one woman, to the exclusion of all others, though it may pass by the name of marriage, is not the status which the English law contemplates when dealing with the subject of marriage.
     His Honour then went on to determine that, since Japanese marriages do indeed follow this pattern, they are automatically valid under the common law. He also pointed out that, although it is often called "Christian marriage" as a shorthand phrase, Christianity need have nothing to do with it.
    This, then, was the legal meaning of the term, "marriage" when the Constitution was written, and to which Parliament is bound. Parliament can legislate regarding the age of marriage, the rights of married couples, the dissolution of marriage, and the maintenance of children, but it cannot change the nature of marriage. The fundamental nature of marriage in Australia was neatly expressed by Justice Sugerman in Ng Ping On v Ng Choy Fung Kam (1964) N.S.W.R. 953 at 954-955, and even though it was written long after the Constitution was written, it sums up the pre-Constitution situation perfectly:
The expression "Christian marriage" does not connote in this context that the parties are Christians, or that the rites observed are Christian rites. It is possible to have a "Christian marriage" in the relevant sense to which neither party is a Christian, and which is not celebrated according to the observances of any Christian denomination. The expression means, rather, a marriage in the sense in which that relationship is understood in Christendom. This is a reference to the character of the marriage - to its being, in the words which Lord Penzance used in Hyde v Hyde and Woodmansee, "the voluntary union for life of one man and one woman to the exclusion of all others". Unions of a polygamous character are, of necessity, outside this concept of marriage. Their exclusion therefore depends, not upon the husband's having taken more than one wife in fact, but upon the character of the marriage - upon whether, by the very terms of the marriage compact, a second marriage is a thing allowed to the husband and no cause of complaint to her who has acquiesced in that compact. Marriages, not as yet polygamous in fact and perhaps not likely to become so, but polygamous in character, in that they admit of the taking of further wives, are generally referred to as potentially polygamous, and it is on this ground that they are to be distinguished from Christian marriages in the sense earlier mentioned. A marriage once "Non-Christian" is always Non-Christian; it takes its character at the time when it is contracted under the law according to which it is contracted, and that character remains unaffected by subsequent events.
     What else needs to be added? If polygamous and potentially polygamous unions, which have a long and venerable history, and have been practised by a majority of the world's population, are not recognised by the common law, or section 51(xxi), what chance same sex unions, which have never been treated as marriages except in a few small societies in aberrant times?
     Not only that, but the parliamentarians know it - or should know it. In 2002 they sought legal opinion on the subject. (The opinion has since been removed from the Parliamentary website.) The conclusion was that, although there was not complete unanimity in the High Court, the majority opinions suggest that such a law would have a very hard time passing muster. Furthermore, there would be many people who would have standing to contest it: a state government, an heir or next of kin sidelined by such a "marriage", a public servant who objects to registering it, or a celebrant who may be forced to celebrate it.
     The social deformers are pretending that marriage is the product of the law, and is merely whatever grouping of people the law wants to consecrate. But it isn't. As Sir William Scott pointed out as far back as 1795, it is the fundamental basis of society, which pre-dates the law (and probably the human race), which the law recognises and regulates for the benefit of society, but which it does not create.
     That is why I have consistently put "marriage" in quotation marks when referring to same sex unions. It is all a game of "let's pretend". But, as Abraham Lincoln is alleged to have said: "How many legs has a dog? Only four. Calling the tail a fifth leg doesn't make it one."

Postscript: It is good to see that great minds still think alike. Quite independently of this post, four South Australian lawyers made a submission to Parliament in August 2011 on the same lines, but with much more detail about twentieth century case law from the High Court.

Update 28.9.12: When proposed legislation redefining marriage failed (predictably) in the Federal Parliament, Malcolm Turnbull was on record as saying he would like to see civil unions introduced as a fall-back option. I hope Mr Turnbull, who was once considered smart enough to lead a political party, will one day get around to reading the Constitution, which makes no mention of civil unions. This does not mean they can't be instituted, of course - only that they would be limited to Federal jurisdictions. If the Federal Parliament wants to use civil unions in determining Centrelink pensions, the administration of the Commonwealth public service, or anything else under its jurisdiction, it has the legal power to do so, but they would not apply in state jurisdictions. Likewise, civil unions legislation enacted by a state - like the Queensland legislation our Premier promised to rescind, but didn't - have no validity outside the state in question.
     I am also pleased that the Tasmanian Upper House has just rejected the state same sex "marriage" bill. The Government claimed to have legal advice that it was constitutional, despite former state chief justice, Bill Cox weighing in with the reverse opinion.
     When people tell you they have "received legal advice" about a questionable course of action, it is time to  switch on your BS-detectors. What legal advice you get depends on what you ask for. You can say:
     (a) We want to do such-and-such. Is it legal? What is the most reasonable interpretation of the law, and the course of action most likely to pass muster with the courts?
     (b) We want to do such-and-such. Can we get away with it? Please provide the best legal justification your devious mind can think of for the planned action.
    The advice obtained by the Greens for this bill bears all the hallmarks of (b). Essentially, it ran: state law runs concurrently with Federal law under section 51. If state law conflicts with Federal law, then the Federal law prevails, but the states are free to legislate on anything covered by section 51 which is not covered by Federal law. Since the Marriage Act specifies marriage as being between one man and one woman, the states are free to legislate on same-sex "marriage". Indeed, it was claimed that, the specific amendment to the Act left a "window of opportunity" to same sex "marriage" which may not have been present before.
     The hollowness of this argument can be seen as soon as it is taken to its logical conclusion: since the Marriage Act specifies one man and one woman, the states are free to legislate for polygamy.
     The point, of course, is that the Commonwealth Parliament has legislated on marriage, so its definition is conclusive. Also, they seem not to understand what concurrent legislation really means. The Constitution gave jurisdiction to the Commonwealth over certain areas stipulated by section 51. But all the former state laws in those areas did not suddenly become invalid on the date of federation. That would have resulted in chaos. The states are free to legislate in those areas until the Commonwealth Parliament gets around to it. In the case of marriage, it took 60 years.
     However, there is one area regarding marriage which Commonwealth legislation does not cover: registration of marriages. The states are still registering them on behalf of the Commonwealth. They don't have to. If the Commonwealth Parliament were so rash as to legalise same sex "marriages", the states could tell them to do their own registering.

Update 12.12.13 As expected, the High Court unanimously rejected the ACT same sex "marriage" act as unconstitutional. It would have been incredible if any other ruling had been made.