There were tears of indignation outside of Australia's High Court yesterday, but it was the result that everyone expected: a law passed on December 3 authorising same-sex marriage in the Australian Capital Territory was unconstitutional. The marriages of the 30 or so gay and lesbian couples who had exchanged vows under the law have now been annulled.
"This is devastating for those couples who married this week and for their families," said the spokesman for Australian Marriage Equality, Rodney Croome. "However, this is just a temporary defeat. What is far more important is that the ACT's law facilitated the first same-sex marriage on Australian soil and showed the nation the love and commitment of same-sex couples. The marriages in the ACT prove that this reform is not about politics, but about love, commitment, and fairness."
It had always been clear that under the Australian Constitution, the regulation of marriage is exclusively a Federal responsibility. The law passed by the ACT Legislative Assembly for Canberra and the surrounding suburbs was effectively meant to rally the troops and to see how the High Court would react.
The six judges were unanimous and unequivocal in their "reasons for judgement": "Under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law…is a matter for the federal Parliament." And according to the present law, marriage is only between a man and a woman.
However, the news for defenders of traditional marriage is far from good as a result of the decision. The High Court has bulldozed a primrose path through the thickets of jurisprudence for advocates of "marriage equality".
First of all, it declared that the Constitution does not enshrine a natural definition of marriage. The word did not refer to the social reality at the time the Constitution was written in 1901; it is up to Parliament to alter it.
Second, the judges ventured a definition of marriage which does not include the exclusive fidelity, lifelong commitment or intention to procreate which characterise traditional marriage.
"'Marriage' is to be understood in s 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 recognises 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."
In other words, marriage can be anything that Parliament deems it to be, except between a man and his horse.
Even polygamy?
Even polygamy. The Court is quite explicit on this issue. It discusses the famous cases from the 19th Century which have shaped the existing definitions of marriage. Some these involved polygamy. In 1888, Bethell v Hildyard determined that the daughter of Christopher Bethell and Teepoo could not inherit his property after he was killed in the Boer War because traditional marriage in Bechuanaland was polygamous.
Similarly, in Hyde v. Hyde in 1866, a Mormon marriage was not recognised as a marriage under English law because it was potentially polygamous. It was Hyde v. Hyde which was the source of the classic definition of marriage under English law: "Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others."
However, the Australian High Court now states clearly that Parliament need not be bound by this. "Decisions like Hyde v Hyde reflect no more than the then state of development of judge-made law on the subjects of marriage and divorce and matrimonial causes."
In fact, Australian law now recognises polygamous unions contracted in other jurisdictions for many purposes.
"The social institution of marriage differs from country to country. It is not now possible (if it ever was) to confine attention to jurisdictions whose law of marriage provides only for unions between a man and a woman to the exclusion of all others, voluntarily entered into for life. Marriage law is and must be recognised now to be more complex. Some jurisdictions outside Australia permit polygamy. Some jurisdictions outside Australia, in a variety of constitutional settings, now permit marriage between same sex couples.
"These facts cannot be ignored or hidden. It is not now possible (if it ever was) to decide what the juristic concept of marriage includes by confining attention to the marriage law of only those countries which provide for forms of marriage which accord with a preconceived notion of what marriage "should" be.
The scare quotes around the word "should" say it all: marriage is not a natural institution, according to the High Court of Australia. It never was and it never will be. Marriage is simply what Parliament says it is.
Ever since the same-sex marriage debate began, opponents have insisted that if it were legalised, it would be impossible to bar polygamous marriages. The High Court confirmed this in yesterday's judgement. In doing so, it has raised the stakes in the debate over marriage equality. If Federal Parliament approves it, there is no doubt whatsoever that legal polygamy will be next. It's simply a matter of whether Muslims and the growing numbers of polyamorists have enough political clout. That's all.