Two key objections to state same-sex marriage laws emerged during last week’s debate in the Tasmanian Upper House. These objections have since been raised by Victoria’s political leaders and are likely to surface as NSW, South Australia, and the ACT move towards marriage equality.
So what are they and do they hold water?
The first is that a marriage under a state same-sex marriage law is not full equality and only allows for a "second-rate" form of marriage. One aspect of this is argument is geographical reach.
As Victorian Labor leader, Daniel Andrews, has pointed out, a state marriage law would not be recognised in other states or federally, at least not yet: "I don’t think anyone would be served well by having a marriage that is recognised in Wodonga but not in Albury."
There’s an obvious double standard here. Between 1994 and 2007 the states legislated one-by-one to recognise same-sex de facto relationships. It wasn’t until 2008 that this recognition migrated to the federal level. Yet no-one objected to this recognition on the basis that it occurred state-by-state.
Many important reforms occur state-by-state in Australia and there’s no reason same-sex marriage should be an exception.
The other aspect of the "equality" concern is more worrying. Religious and political opponents of marriage equality have labelled marriages under state laws as "second-rate" because states can only legislate for same-sex marriages and not opposite-sex marriages.
Again, this is a double-standard. You never hear anyone declare that marriages under the federal Marriage Act are second-rate because that statute is limited to opposite-sex couples.
The deeply-homophobic implication is that state marriage laws are second-rate precisely because they are for same-sex marriages. Most same-sex partners do not share the objection that a state same-sex marriage is not "full equality". Many don’t care where they marry, as long as they can marry somewhere in Australia, or under which statute the marriage is legitimated.
The primary aim of many same-sex partners is to have the option of standing before their family and friends and legally marrying, which is exactly what a state law allows them to do. Objections that ignore this human reality, fail to grasp what is really at stake in the same-sex marriage debate.
The other main objection to state same-sex marriage laws is that marriage is properly a federal issue and state laws are a constitutionally risky enterprise.
It is a fact that the constitutional power to make laws for marriage is shared by the Commonwealth and the states. That’s the reason all marriages were solemnised under state laws until the federal Marriage Act was passed in 1961.
So the assertion that "marriage is a federal issue" must be political, not legal.
Clearly, the framers of the constitution did not think marriage was federal. What has changed that would make it so now? The obvious answer is the centralisation of power in Canberra to the point where everything of importance is seen as best handled by the federal government (even if, in the case of same-sex marriage, the feds have shown they can’t handle the issue at all).
The same lack of confidence in state powers can be seen in concern about the risk of losing a High Court challenge.
State same-sex marriage laws have a constitutional question mark hanging over them.
If they are challenged in the High Court it will be on the basis that when John Howard limited the federal Marriage Act to heterosexuals in 2004 he was effectively banning same-sex marriage too.
The counter argument is that there’s no explicit ban on solemnising same-sex marriages in the federal Act so the states can do what they want.
No-one can predict which argument will prevail.
In Tasmania, opponents of same-sex marriage played up this uncertainty, producing wildly exaggerated prognostications about the likelihood of a loss and how much it would cost.
In doing so they touched a raw nerve in Tasmania’s Upper House about the state’s poor record of defending itself in the High Court.
But the lack of confidence state politicians have in their power to effect reform through the federal system is not limited to Tasmania, and we are bound to see similar concerns expressed in other states.
Even though states pass laws that raise constitutional questions all the time, the risks associated with a same-sex marriage law will be exaggerated for political purposes, and politicians with no faith in themselves will fall for it.
The state same-sex marriage debate has exposed the double standards and concealed homophobia of some politicians. Worse, it has shown how ineffective state leaders have become in asserting the authority of their states and the rights of their citizens.
When same-sex marriages finally do occur under a state law, it will be at the hands of leaders who believe in the power of the states to make a positive difference in the lives of ordinary people.
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