High court challenge won’t stand: lawyers
Same-sex marriage would stand up against a High Court challenge if it was legalised, law academics have told a Senate inquiry into marriage in Melbourne today.
The panel of senators heard from groups in support of and opposed to the Marriage Equality Amendment Bill 2010.
Lawyers and academics from the Deakin University School of Law and the University of Adelaide Law School made submissions to the inquiry and told the committee they believed that marriage equality was constitutional.
In Sydney yesterday, the Senate committee heard from a group called Lawyers for the Preservation of the Definition of Marriage that the federal Government did not have the constitutional power to legalise same-sex marriage.
Associate Professor of Law Dr Dan Meagher backed the submission from Deakin University and appeared before today’s committee in Melbourne.
He told the Star Observer he believed same-sex marriage would not be repealed by the current Australian High Court if legalised.
“I think the clear trend on not just this High Court but on existing High Court authority would suggest that if the Commonwealth Parliament legislated to make lawful same-sex marriage, I think it would withstand constitutional scrutiny,” he said.
Meagher said the Constitution allowed the federal Government to create laws around marriage and so it would also allow the federal Government to make amendments to marriage laws.
He said there were a number of comments by High Court judges to lead him to believe they would deem same-sex marriage constitutional.
In the inquiry, Liberal senator Eric Abetz questioned whether this would allow for future attempts to legalise other types of relationships such as bigamy.
Meagher refuted this and said he believed this wouldn’t happen.
“The chances of a groundswell of the Australian public being so strong that they would legislate for bigamy, I think is fanciful,” he said.
From a constitutional point, Meagher said the High Court had made it clear that the institution of marriage was “a voluntary union between two persons to the exclusion of others”.
Meagher said he hoped the Marriage Equality Amendment bill passed.
“It is also important from a constitutional issue because it is a recognition the Australian people recognise the legitimacy … of same-sex couples getting married,” he said.
In a press conference today, Senator Sarah Hanson-Young said she found the submissions from Deakin University and the University of Adelaide very encouraging.
“One of the questions about, whenever you take on a big reform like this, is wanting to make sure it can stand the test of time,” she said.
“There is overwhelming support from the Australian community for this reform to happen.
“If this bill is to pass, we could remove discrimination. We could give same-sex couples equality under the law but at the same time, of course religious organisations could still choose, as they do today, who they would like to marry and who they wouldn’t like to marry.”
It might actually be better if it fails high court challenge, this would mean legal recognition of same sex marriage would require a change in the constitution, and there is already sufficient support for it that it would warrant a referendum, if it passes a referendum it would be far harder to repeal. There would be a big risk of it failing a referendum though, with ~60% support the margin is slim enough that it may not pass in enough states.
Comparing bigamy to same sex marriage is extremely offensive as they are in way related.
I think you also might be surprised to learn that bigamist relationships conducted in countries were they are legal are recognised here in Australia – for welfare purposes only!
In Egypt for example, in order to take a second wife you need to be able to support both families.
However, you can marry two in Egypt, come to Australia (note marriages not recognised for visa) and both wifes & children can claim welfare while the husband flips between the two tax payer funded homes.
a child could already have 4 moms – biological mum, birth mum, adoptive mum, and foster mum… If Egytian, a fifth – a mummy!
Be an interesting outcome if a kid went to school and said.”I have 3 daddies. How awesome would that be.
Society would never approve, but it already is happening around the world, especially the UK.
As long as kids are not involved. I cannot see why gay men could not have this, if they want it.
A good article. It shows that support for equality for same sex couples is getting stronger, and will in time overcome its opposition.
I’d like to make a point regarding bigamy that was mentioned, as this is something that my self and some of my friends have talked to me about when we have discussed the whole legalising same sex marriage topic.
The main reasons I can see why bigamy will not be made legal, or have the same support as same sex marriage are this:
Bigamy is dominantly an islamic religious tradition, and therefore will not get the same level of support from the Australian population, also, those who would push for bigamy to become legalised, would be mostly (if not only) men who wish only to allow men to marry more than one wife, but will not permit the opposite as that would be against their religious views. As it’s based mostly on out dated, bigoted and rather sexist religious grounds and not on human rights, and fairness for all, this would be something that will get very little support, if any, and not only that, but lets face it, if every man wanted say three wives, where would we get them from? There’s only so many to go around…