Can a state provide marriage equality?

| November 4, 2013

Key law-makers in NSW and Tasmania have rejected same-sex marriage bills, while the ACT’s bid is said to be doomed to fail in the High Court. Rodney Croome urges our leaders to ensure that same-sex couples have the choice to legally marry, regardless of the legislative backstory.

In recent weeks the question, if a state can provide marriage equality, has dominated debate on state same-sex marriage legislation in the ACT, Tasmania and NSW.

In Sydney and Hobart key law-makers have knocked back same-sex marriage bills because, in the words of NSW Premier, Barry O’Farrell, they are not “true equality”.

Meanwhile, the ACT’s bid to admit same-sex couples to the federal government’s definition of marriage has been slated by constitutional experts and advocates alike who say it doomed to fail in the High Court.

In a sense, state and territory parliaments can never provide “true equality” because they can only pass legislation for same-sex couples, not heterosexuals, and they can only do it within their own borders.

To block same-sex and gender diverse couples from marrying under a state law just because heterosexuals can’t marry under the same law is petty.

It also ignores how our federal system works.

Throughout Australian history personal relationships have been recognised state-by-state and gender-by-gender.

All heterosexual marriages were solemnised under state laws until the federal government took responsibility for them in 1961.

More recently straight and gay civil partnerships spread state-by-state until their recognition in federal law in 2008.

But the best example is de facto marriage.

Heterosexual and same-sex de facto relationships were recognised at different times in different states in a forty-year process that eventually culminated in their equal recognition in national law.

It’s the nature of federalism that the states provide a path for reform when the federal government lags behind public opinion.

Why wouldn’t same-sex marriages follow the same federal dynamic, especially given the federal government’s resistance to recognising such marriages?

To dismiss state laws as not “true equality” is also to ignore what these laws mean to those most affected by them.

The demand at the heart of the marriage equality movement is that same-sex and gender diverse couples should be allowed to legally marry.

A state law fulfils this purpose just as well as a national law.

In our experience couples don’t care who passes the law under which they marry or how that law is framed. They care only that they can marry.

This was the case for older Australians, who for the most part neither knew nor cared that they married under state marriage law if they tied the knot before 1961.

It remains the case for same-sex couples today, for whom the right to make legally-binding vows of lifelong commitment and to have that called marriage is much more important than the legislative backstory.

The one caveat is whether their vows, and the law under which these vows were made, will survive in the High Court.

The ACT’s marriage equality law has been criticised as constitutionally flawed by legal experts like Bret Walker SC and Prof George William for trying to open marriage, as defined by the Commonwealth, to same-sex couples.

The fear it will likely be struck down as a result.

The ACT Government has returned fire by labelling the same-sex marriage bills of their Labor colleagues in NSW and Tasmania as mere “civil unions” because they create a distinct legal status of “same-sex marriage”, a refrain taken up by Waleed Aly.

The civil union claim is nonsense because civil unions are designed with the singular aim of keeping same-sex couples as far away as possible from the “m” word.

If Aly doesn’t understand why those in favour of same-sex marriage and those against are fighting over what he sees as mere civil unions it’s because he has missed the whole point of this debate: who has permission to use the language of marriage, participate in its traditions and enjoy the recognition, rights and responsibility that marriage bestows.

The ACT can easily amend its law to eliminate potential points of conflict with the federal Marriage Act and ensure the vows made under that law aren’t broken by an adverse High Court decision.

It’s already gone part of the way down that track, incorporating the term “same-sex” – the one it now says creates “civil unions” – in to its Act at several points.

Now it needs to finish the job.

But the broader question remains: should states be involved in this issue at all?

Those state MPs who don’t want to deal with the issue will inevitably sugar-coat their opposition with phrases like “true equality”, as even Fred Nile did last week in NSW Parliament.

But in the end what they’re really saying is “not us, not here, not now”.

For those of us who understand the urgency of this issue – who are pained by older same-sex partners passing on before they can marry, or by Australia being left behind by every other developed, English-speaking country – such excuses don’t wash.

Our interest is in leaders who do what they can, not those who rationalise why they can’t.

Our interest is in ensuring same-sex couples have the choice to legally marry, howsoever that happens.


Alex Greenwich MP is the Independent Member for Sydney in the NSW Parliament and represents the largest constituency of same-sex couples in Australia.