Shouts from the desert

This week there has been some discussion of a Bill introduced by the Greens in Tasmania to provide for gay marriage. While the bill has no chance of going anywhere, the news services are suddenly reporting that academic lawyers are saying that the Marriage Amendment Bill 2004, passed by both the Liberal/National coalition and Labor in the middle of last year, leaves it open to the States to provide for gay marriage.

The sudden discovery of this by the press is somewhat amusing, because it's something that any lawyer with half a brain knew when the Bill was passed. Even Howard, with his "thanks for coming" (actually, most of the time he didn't go) performance at law school, should have known that the Bill actually made it easier for gay marriage to develop, not harder. But it managed to buy votes from the far right, and was the key factor getting preferences from the Christian Democrats around the country.

That this bought the CDP preferences should not come as a surprise to anybody who paid any attention to what the CDP was saying - and unfortunately many Christrians vote for them on the basis of their name without realising the very un-Christian policies they hold (and I am sorry to say I was one of those in the first election I voted in). The CDP candidate for Bennelong - a man who is startlingly ignorant of the mechanics of our political system, especially for one seeking to participate in it as an elected representative - gave me copies of their key election materials when I first met him. What was their key policy? Opposition to the Democrats and Greens, who they regard as "shocking" because they support rights for homosexuals. One of the pieces was headed "The Democrats - the Pink Pornography Party".

But, I hear you say, Labor supported the Marriage Ammendment Bill too! But that was not good enough for the CDP. Labor was also promising to open up the issue to a public inquiry. The CDP were opposed to even allowing discussion on the issue - they sought to prevent there ever being an open and democratic consideration of whether there should be gay marriage. It makes the "D" in "CDP" somewhat farcical. Perhaps they should consider replacing it with something beginning with "F" or "N". And while they are at it, they should learn the message of acceptance and non-judgement in their Bible, or change the "C" to a "U".

Interestingly, in a perverse kind of way, the CDP candidate for Bennelong regularly claimed there were "too many laws", but the ones he really wanted to keep were the ones imposing his moral judgement on others who did not share his moral perspective and were harming no others. (Note: I distinguish morals from ethics in that ethics have some objective justification based on consequences, whereas morals are used to impose an arbitrary value system without objective basis. They are often related, but not synonymous).

Now to return from my side rant, as I say, the fact that gay marriage powers reverted to the States was something well known to lawyers at the time - and you only had to ask one to find it out since most lawyers were perfectly happy to just discuss it among themselves and close friends because watching the politicians make what can only be described as either a monumental error in implementing their intentions, or a monumental deception of the community at large, was highly amusing and they would rather just let them stuff it up if it's all the same to everybody else. People who asked me about my views on the Marriage Amendment during the election found out about this.

Before the amendment, the Marriage Act stated that there could be no marriage ceremony except under the Act, and the Act didn't provide for that to include a same sex couple. It still says that, but now something else has changed. There were two key amendments - one adding a definition of marriage, and one adding a stipulation that homosexual marriages performed overseas.

The definition was inserted such that its effect is:

In this Act... "marriage" means a union between a man and a women to the exclusion of all others, voluntarily entered into for life.

The effect of this is that every time you read the term "marriage" in the Act, you can substitute the phrase "a union between a man and a women to the exclusion of all others, voluntarily entered into for life" to find out what is meant. Moreover, the definition does not affect the meaning of "marriage" in any other law.

The first interesting effect is the effect on the non-recognition of overseas marriages between gay couples. The relevant section reads:

A union solemnised in a foreign country between:

(a) a man and another man; or

(b) a woman and another woman;

must not be recognised as a marriage in Australia.

Making the substitution, we get:

A union solemnised in a foreign country between:

(a) a man and another man; or

(b) a woman and another woman;

must not be recognised as "a union between a man and a women to the exclusion of all others, voluntarily entered into for life" in Australia.

This is in what I like to call the "duh" category. It does nothing. The courts are still at liberty to recognise a marriage between gay couples performed overseas as a valid marriage for the purpose of any other law. Game over religious right and thanks for playing "how can I screw up implementing my bigoted intentions".

But wait, there's more. The Act only regulates "marriage", and what is "marriage" according to the Act? "a union between a man and a women to the exclusion of all others, voluntarily entered into for life". The definition means that gay marriages are simply taken out of the Act altogether. There is no law at the Commonwealth level that says anything about gay marriage. So does that make gay marriage illegal or outside the law? No.

If the Commonwealth does not regulate gay marriage at all, then it all falls back to State law. But the States repealed their Marriage Acts because they were made obsolete by the Commonwealth one. So there is no regulation of marriage by a State parliament. So does that now make gay marriage illegal or outside the law? No.

When there is no Act regulating something, we normally fall back to the Common Law. Indeed there were no Acts regulating marriage before around 1830 - having governments involved in whether there is a marriage or not is a relatively modern invention. So what does the common law say about whether there is a marriage? Well, nothing. The Common Law did not deal with the creation of marriage, it only recognised some of the consequences of a marriage existing. So does that now make gay marriage illegal or outside the law? No.

When the Common Law did not deal with a subject, there was another source of law that might deal with it. It's a source of law that is forgotten by even most lawyers today, but the Marriage Amendment has re-activated it. That law is Church Law. Prior to the 1830s, it was a matter for the churches to determine when a marriage existed.

Which church? Well before King Henry VIII, that would be the Roman Catholic Church. During King Henry's reign it was the Church of England. But after the demise of the Tudors, when freedom of religion arrived in England, it became "any" church. Literally - a church of any denomination, or indeed of any religion, could declare the existence of a marriage.

In today's environment it should be possible to find a minister somewhere in an established church in Australia who will be willing to perform a gay marriage. But if, by any chance, you were a gay couple wanting to get married who could not find such a minister, you might consider sending one of your friends to the Universal Life Church to pick up a quickie Internet ordination. In principle, a gay marriage performed by a ULC minister should be treated as valid by a court in Australia (although interestingly a marriage between a straight couple would not unless the ULC was a civil celebrant).

To non-lawyers this no doubt sounds like a script from a Monty Python movie. If you're not a lawyer, you're probably thinking "no way, that's out there". But to a lawyer - at least one with even a rudimentary understanding of legal history - this is not merely a reasonable conclusion, it is an obvious conclusion. There are of course many things that lawyers know to be true about the law which non-lawyers find incredulous - this situation is not unique in that regard.

As a final note, I should point out another aspect of the definition - "a union between a man and a women to the exclusion of all others, voluntarily entered into for life". It only covers marriages "voluntarily entered into". But voluntary marriages have not always been the only marriage. It may be that the amendment has re-enlivened the possibility of forced marriages recognised by a church being recognised under Australian law. This is a decidedly negative outcome.