Marriage ‘could face court test’
Marriage equality advocates are hopeful they can win the issue in the courts after two prominent lawyers from opposite sides of the debate agreed that an amendment to the Marriage Act could be tested in the High Court.
“There will undoubtedly be a constitutional challenge in the High Court given that the Parliament does not have the power to expand its legislative competence beyond the wording of the Constitution,” Catholic lawyer Father Frank Brennan wrote.
“Under the Constitution, the Parliament has power ‘to make laws with respect to marriage’.”
Brennan wrote that in 1991 High Court Justice Daryl Dawson had observed that the Government’s power to pass laws in relation to marriage relied on its existence as a “recognisable, though not immutable, institution”.
Constitutional law expert and same-sex marriage supporter Professor George Williams agreed that the legalisation of same-sex marriage could be tested in the courts.
“The debate has proceeded on the basis that the cause will be won or lost in the Federal Parliament — in fact the High Court will have the final say,” Williams wrote in The National Times.
“The High Court may well adopt a broad interpretation and so uphold any federal law for gay marriage.
“However, if it takes a contrary view, this would end the debate over Australia having a national law on the topic. Gay marriage could still be recognised, but only by state parliaments.”
Australian Marriage Equality national convenor Alex Greenwich said the group was prepared to face a legal challenge on the issue.
“We know there is a battle ahead of us but we are confident the Coalition will eventually allow a conscience vote, and we are hopeful it will then pass in Parliament,” Greenwich said.
“I would hope that the groups who oppose marriage equality would see a parliamentary vote as indicative of the general public’s views and would be mature about it and not pursue things further.
“Should our opponents take it to that level, that would be showing their disregard for the views of the Parliament and the majority of Australians.”
Australian National University College of Law’s Professor of Law Margaret Thornton has said that a federal amendment to the Marriage Act legalising same-sex marriage would have a “good chance” of surviving High Court scrutiny.
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If it comes to that, then a referendum could make a change to the Constitution, but it might be an adverse wording that could actually entrench opposition to marriage equality if it defines marriage as “between a man and a woman” to the exclusion of any other pairings.
This is the problem known as “Tyranny of the Majority” where the majority can extinguish the rights of any minority just through sheer weight of superior numbers.
Although difficult to enforce without majority support, human rights are inviolate and immutable, regardless of who votes or doesn’t vote for them.