Just days after same-sex couples began getting married in Canberra under a law passed by the Australian Capital Territory’s Assembly, the High Court of Australia, that country’s appellate court of last resort, ruled that the territorial legislation was “inconsistent” with the federal Marriage Act 1961 (as amended in 2004), and thus “of no effect.” The same-sex marriages contracted over the past few days are invalid. However, at the same time, the High Court’s unanimous decision makes clear that the federal parliament does have authority, if it desires, to open up the status of marriage in Australia to same-sex couples.
The federal government filed suit shortly after the territorial legislature passed the law, asking the High Court to declare it invalid and seeking preliminary relief to block it from going into effect. The court refused to provide preliminary relief, but scheduled arguments to occur beginning on December 4 and then took just a week to decide the case and release its opinion. In the meantime, same-sex couples had just over a week to get married, and it was reported that some did so, despite the possibility that the marriages would be quickly invalidated.
The December 12 ruling in The Commonwealth v. Australian Capital Territory,  HCA 55, required the court to delve into 19th century jurisprudence, in response to the argument that the Australian Constitution’s provision giving the federal parliament authority to legislate on the subject of marriage was limited to “marriage” as that term was known and defined by the 19th century drafters of the Constitution, which was adopted in 1900. The Australian Capital Territory, customarily referred to as the ACT, is Australia’s equivalent to the District of Columbia in the United States.
Of course, as of 1900, the term “marriage” as used in the Constitution would have been understood in light of the state of law at that time to consist only of opposite-sex unions. Thus, an argument was made to the court that this limited the authority of the federal legislature, so that it could deal only with opposite-sex marriages, leaving it open to the ACT and other Australian states to pass their own laws dealing strictly with same-sex marriages. Under this argument, the Marriage Act 1961, which was apparently the first federal statute passed by the legislature under its Constitutional authority, should be construed to be dealing only with the subject of opposite-sex marriages, so there was no inconsistency by the ACT passing a law creating a status of marriage for same-sex couples.
The court was unwilling to accept this argument, because of its view that the Constitution’s use of the term “marriage” was not intended to freeze the authority of the federal legislature within the bounds of that term as it was understood in 1900. The unanimous decision said that “‘marriage’ is to be understood in sec. 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 recognizes 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.” Thus, the federal legislature has the authority to modify the marriage law to include same-sex marriages if it so desires, as it would also have authority to make other adjustments to the definition of the rights and obligations of marriage, as it has done since 1900, for example, by adopting laws on divorce and taking measures to equalize the legal status of women with men in marriage under Australian law.
Relying on prior decisions, the court effectively rejected the notion that constitutional language is static in meaning. On the one hand, this is good news for Australian same-sex marriage proponents, since it means that there is no constitutional impediment to their seeking an amendment to the Marriage Act to include same-sex marriages. They will not have to persuade Australians to amend their constitution. On the other, it is bad news for those who have been proposing that the ACT and other Australian states can legislate to establish same-sex marriage under their own laws, since the court went on to hold that the federal legislature’s authority to make marriage laws is now exclusive.
The court said that “if a Commonwealth law is a complete statement of the law governing a particular relation or thing, a Territory law which seeks to govern some aspect of that relation or thing cannot operate concurrently with the federal law to any extent.” The court showed that the ACT same-sex marriage law fell within this prohibition. “The ACT Act is not capable of operating concurrently with the Marriage Act to any extent,” the court concluded.
Responding to the argument that the federal Parliament had not purported to legislate on the subject of same-sex marriage so the states and territories should be free to do so, the court responded that the federal Marriage Act not only did not specifically permit same sex marriages, but by inference prohibited them, especially in light of a 2004 amendment, enacted in response to the adoption of same-sex marriags in some other countries, providing that same-sex marriages contracted overseas would not be recognized as marriages in Australia.
“The Marriage Act regulates the creation and recognition of the legal status of marriage throughout Australia,” wrote the court. “The Act’s definition of marriage sets the bounds of that legal status within the topic of juristic classification with which the Act deals. Read as a whole, the Marriage Act, at least in the form in which it now stands, makes the provisions which it does about marriage as a comprehensive and exhaustive statement of the law with respect to the creation and recognition of the legal status of marriage.” The court saw the 2004 marriage recognition amendment as containing “the implicit negative proposition that the kind of marriage provided for by the Act is the only kind of marriage that may be formed or recognized in Australia. It follows,” continued the court, “that the provisions of the ACT Act cannot operate concurrently with the Marriage Act and accordingly are inoperative.”
The ruling did not come as a big surprise to marriage equality supporters, who vowed to go back to the federal legislature to seek an appropriate amendment to the federal Marriage Act. Of course, those who married in the few days prior to this ruling expressed disappointment, but in general there was an air of determination rather than defeat in their public statements.