"It is up to Parliament to legislate on this issue"
December 12, 2013 3:35 AM   Subscribe

A day apart, the Supreme Court of India and the High Court of Australia respectively overturned the three-year-old 2009 Delhi High Court ruling and the five-day-old Australian Capital Territory same sex marriage law. For India, this means a return to laws dating from the British rule of India which criminalise sexual acts "against the order of nature", and for Australia this means a return to the "man and woman" 2004 Amendment of the Federal Marriage Act.
posted by ossian (46 comments total) 1 user marked this as a favorite
 
It's not really a 'return' to the "man and woman" 2004 Amendment, more that the High Court of Australia decided that the law passed by the Australian Capital Territory was never valid in the first place due to inconsistency with federal law.

As a purely an issue of Australian constitutional law the result is not surprising, even if the result is disappointing (particularly for all the couples who had a marriage ceremony in the ACT in the 5 day window the ACT law was in operation). That being said, the Australian High Court decision has some very interesting things to say including this:

[16] The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable. Section 51(xxi) (of the Australian Constitution) is not to be construed as conferring legislative power on the federal Parliament with respect only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation.
posted by AlienGrace at 3:53 AM on December 12, 2013 [9 favorites]


Meanwhile, same sex marriages begin in England and Wales on March 29.
posted by roomthreeseventeen at 3:54 AM on December 12, 2013 [2 favorites]


From a legal standpoint the Australian case is a logical decision - marriage laws were simply found to be within federal jurisdiction, and therefore the ACT law was invalid. Pretty cut and dry and says nothing about the future legitimacy of same-sex marriage in Australia. There was no pronouncement by the high court on the morality of same-sex marriage, and if a national law allowing marriage equality were passed, the court would appear to have no interest in striking it down.
posted by modernnomad at 3:57 AM on December 12, 2013 [5 favorites]


Lionel Murphy would have found a way!
posted by the quidnunc kid at 4:26 AM on December 12, 2013 [2 favorites]


I would have been disgusted if the High Court had found any other way. This is clearly a matter for the Commonwealth and the ACT Act was always a stunt.
posted by wilful at 5:02 AM on December 12, 2013 [2 favorites]


I'm rather more concerned about the Indian ruling than the Australian one.
posted by aramaic at 6:03 AM on December 12, 2013 [6 favorites]


it being the correct legal move is probably not much of a comfort to people who are gay and want to marry...

the united states went through something similar with dadt - obama could have struck it down under executive order, but he wanted to way for the legislator who took their own sweet time (a move i agreed with, but still of little comfort for those who were being told to have patience).
posted by nadawi at 6:06 AM on December 12, 2013


I'm a bit reminded of this interesting Francis Fukuyama article I read lately. It points out that the US is unusual in expecting that court rulings are how civil rights changes happen: in most of the democratic world it's more usual that elected governments make these changes. So, it's not necessarily as big a setback as it might appear to Americans that courts decide to pass responsibility up to the government: that's how things usually work elsewhere in the world.
posted by TheophileEscargot at 6:30 AM on December 12, 2013 [2 favorites]


Yeah, the Australian ruling is a fairly simple federalism decision, from a Canadian point of view, and expected. Sometimes the way the federal structure is helpful for rights seekers, as it has been with same-sex marriage rights in Canada, sometimes not.

I don't know enough about the Indian constitution or this ruling to really know what's going on, and the article doesn't really help. It looks like the High Court has refused to allow the extension of equality rights to sexual orientation under Chapter III. That's a huge problem, if that reading is correct.
posted by sfred at 6:32 AM on December 12, 2013


The ball's in Australians' court (rather than in...uh...the courts' court). If Australians care about same-sex marriage, they're going to have to vote for someone in favour of marriage equality. I have absolutely no doubt that it will happen, probably sooner rather than later.
posted by Dasein at 6:32 AM on December 12, 2013


[A couple of comments deleted. Maybe try to control the urge to make offensive comparisons or slur millions of people, some of whom are right with you on this here site? That would be great.]
posted by taz (staff) at 6:37 AM on December 12, 2013 [3 favorites]


If Australians care about same-sex marriage

Australians don't think when they vote. Hence, here we are, and this is the kind off issue that doesn't rate highly at the federal level, and unless I am incorrect, states don't have a say.

I have absolutely no doubt that it will happen, probably sooner rather than later.

My guess is 10 years.We've got 6-9 years of Abbott, no matter how bad the polls are.

The Indian decision isn't nothing I feel comfortable commenting

Damn. I wrote that? "Isn't anything".
posted by Mezentian at 6:39 AM on December 12, 2013 [1 favorite]


Not much of a surprise for either country. A shame. Then again, Australia to the world is the continental equivalent of Mississippi to the USA.
posted by ReeMonster at 6:40 AM on December 12, 2013


Then again, Australia to the world is the continental equivalent of Mississippi to the USA.

Australia is a land of contrasts. We're ... complicated.
posted by Mezentian at 6:43 AM on December 12, 2013 [2 favorites]


We're ... complicated.

Hey, I never said I didn't like ya!
posted by ReeMonster at 6:45 AM on December 12, 2013


Then again, Australia to the world is the continental equivalent of Mississippi to the USA.

More like Texas. Melbourne would be Austin.
posted by acb at 6:48 AM on December 12, 2013


Oh man, Australians! They're always acting they they invented bigotry or something.
posted by the quidnunc kid at 6:50 AM on December 12, 2013 [1 favorite]


Ack. My comment got deleted.
I'll try and reframe it and see how I go, and then give up.

Australia's decision was legally correct given the nature of the Commonwealth.
Previous (and still open) thread about the .AU decision prior to the call being made.

The Indian decision isn't anything I feel comfortable commenting on given it's a country of almost a billion people where responses to gender issues range the gamut between the gang rape of a year ago to areas where it's normal for dudes to hold hands just because (I can't recall which region, near Nepal?, but I was reminded by a shot in the background of Rick Stein last night).

(Apologies if anyone took offense to my deleted comment).
posted by Mezentian at 6:58 AM on December 12, 2013


The real significance of the High Court decision is the declaration in paragraph 38:
When used in s 51(xxi), "marriage" is a term which includes a marriage between persons of the same sex.
This is a unanimous declaration that a federal equal marriage law would be Constitutionally valid. This is a big step forward, given obiter dicta in past decisions suggesting a narrower definition, and provides certainty to campaigners. It's only a matter of time, now.

(Meanwhile, the Indian decision is appalling.)
posted by robcorr at 12:28 PM on December 12, 2013 [1 favorite]


Yeah, can't see how the High Court had any other option here. If the ACT were allowed to weasel around s51(xxi) by claiming that they've invented an entirely new institution called "same-sex-marriage" that happens to be equivalent in rights in all respects to marriage, and that this isn't an attempt to usurp the Federal "marriage" powers by extending marriage to include same sex couples.... well, I can't imagine it'd be long before some smart arse decided it's time to weasel around s51(ii) using the same trick. Hello, the entirely new institution called "South-Australian-income-garnishing-levy-to-let-us-do-general-stuff" that is totally just a specific levy and has nothing, nothing I tell you, to do with usurping the Federal powers of taxation. Or something like that. I'm glad the ACT tried, but I'm not surprised at how it played out. We'll just have to do this the long way.
posted by mixing at 12:43 PM on December 12, 2013


That being said, the Australian High Court decision has some very interesting things to say including this:

[16] The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable. Section 51(xxi) (of the Australian Constitution) is not to be construed as conferring legislative power on the federal Parliament with respect only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation.


This High Court's wording here seems to be a deliberate FUCK YOU to Tony Abbott, in light of his recent asinine assertion that ''From time immemorial, in every culture that's been known, marriage or that kind of solemnised relationship has been between a man and a woman".
posted by His thoughts were red thoughts at 12:58 PM on December 12, 2013 [3 favorites]


His thoughts were red thoughts: This High Court's wording here seems to be a deliberate FUCK YOU to Tony Abbott [...]

Possibly, but the Court's ruling necessarily requires that they accept that the Constitutional meaning of the term "marriage" is broad enough to include same-sex marriage. If it didn't, then same-sex marriage wouldn't be within the scope of Federal government power and the Marriage Act wouldn't exclude State government legislation.

Incidentally, I love how people keep bringing Hyde v. Hyde and Woodmansee up as proof for the assertion that "marriage is between a man and a woman". The case was actually about Mormon marriages, all of which were held to be invalid. In fact, all marriages made in Utah were held to be invalid! The definition of Common Law marriage revealed in that case has been effectively supplanted by legislation in Australia and probably every other country, otherwise courts would have to hold that no marriage contracted in the Middle East or much of Asia is valid. Previously.
posted by Joe in Australia at 4:17 PM on December 12, 2013 [1 favorite]


The Indian Supreme Court ruling can be challenged. A hearing by a 5-member bench can overrule the 2-member bench ruling. Alternatively, the Parliament can legislate. As I understand, an overhaul of the Indian Penal Code and the Criminal Procedure Code is long overdue.
posted by tamanche_pe_disco at 5:25 PM on December 12, 2013 [2 favorites]


Possibly, but the Court's ruling necessarily requires that they accept that the Constitutional meaning of the term "marriage" is broad enough to include same-sex marriage.

Just let me have this one, man.
posted by His thoughts were red thoughts at 5:59 PM on December 12, 2013


The real significance of the High Court decision is the declaration in paragraph 38:
When used in s 51(xxi), "marriage" is a term which includes a marriage between persons of the same sex.
This is a unanimous declaration that a federal equal marriage law would be Constitutionally valid. This is a big step forward, given obiter dicta in past decisions suggesting a narrower definition, and provides certainty to campaigners. It's only a matter of time, now.


That's a wonderful silver lining, robcorr. Thanks for that!
posted by citizenoftheworld at 7:12 PM on December 12, 2013 [1 favorite]


Possibly, but the Court's ruling necessarily requires that they accept that the Constitutional meaning of the term "marriage" is broad enough to include same-sex marriage. If it didn't, then same-sex marriage wouldn't be within the scope of Federal government power and the Marriage Act wouldn't exclude State government legislation.

Howard's 2004 Amendments which sped through both Houses of Parliament with such amazing ease given the year, were to explicitly (and urgently) exclude same-sex couples from marriage in Australia once and for all, and to deny recognition to any overseas same-sex marriages in Australia. Howard added 'between one man and one woman' to qualify the already 'between natural persons' stipulation. The smallest of mercies was that Howard deemed same-sex couples could successfully argue they were natural persons and gain access to marriage. Bob Brown dubbed it The Marriage Discrimination Act. It is deliberately discriminatory and done in a bi-partisan rush. You've never seen such co-operation. Brown was forlorn.

The Constitutional definition of marriage was broad enough to accommodate same-sex marriage prior to 2004.

The hint to Abbott from the High Court is: [16] The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable.

It doesn't require a referendum. It requires repeal of Howard's spiteful 2004 Amendments which stopped marriage equality in its tracks. Howard's Amendments exist for no other reason.

Abbott has no problem with gay people. Abbott has no qualms with repealing legislation. Abbott has trouble removing Howard's influence (from anything).

It's difficult to imagine Abbott in the Chamber when “Pokarekare Ana" breaks out in the public gallery, but if he's wanting 3 or 4 terms in office he'd better get a move on. 2004 - 2014 is a decade. Another decade is just ridiculous. (Abbot won't want to go to the next election against Shorten with high unemployment and no marriage equality. One or the other, but not both.)
posted by de at 2:41 AM on December 13, 2013 [1 favorite]


Abbott has no problem with gay people.

I'm not sure about that; his public statements suggest that he does.

Here he is telling a priest to "adopt a sort of "don't ask, don't tell" policy" with respect to blessing gay parishioners (March 2009).

Tony Abbott feels "a bit threatened" by gay people, and homosexuality "challenges...the right order of things" (March 2010).

Gay marriage is the 'fashion of the moment' (August 2013).

Then, of course, there is his continuing refusal to allow his party to participate in a conscience vote on gay marriage.

If he doesn't have a problem with gay people, he's doing a remarkably good impression of someone who does. And, to the gay community (and everyone else), there is no objective difference between a homophobe, and someone who says and does homophobic things.
posted by His thoughts were red thoughts at 4:47 AM on December 13, 2013 [1 favorite]


Point taken, really. My 'No problem with' in reference to Abbott was (wishful thinking) relying heavily on truce conditions. He has all the power and no will to change.

I'll go back to wishing him away.
posted by de at 5:33 AM on December 13, 2013


I'll go back to wishing him away.

Here, let me help: I heard he has Christopher Pyne's full support. Pass it on.
posted by flabdablet at 7:41 AM on December 13, 2013


I like to think the phrase "well if you like to so much why don't you gay marry it" was used:
Controversial Liberal Senator Cory Bernardi has called for Malcolm Turnbull's ministerial scalp if he continues to publicly support same sex marriage.
posted by Mezentian at 8:34 PM on December 15, 2013


Controversial Liberal Senator Cory Bernardi will call for anything he thinks will get his penis-shaped head on Ten News. I live in fear of him actually being given anything resembling actual power.
posted by flabdablet at 10:28 PM on December 15, 2013 [1 favorite]


Controversial Liberal Senator Cory Bernardi...

Can we please just change this to 'Ignorant Stupid Bigot Senator Cory Bernardi'?

It's much more accurate.
posted by His thoughts were red thoughts at 7:59 PM on December 17, 2013 [2 favorites]


Well we could, but that would mean putting "accurate" and "Cory Bernardi" in the same thought, which is a requirement my brain flatly refuses to take seriously.

What's actually quite fortunate is that neither Pyne nor Bernardi actually exists; if they did, there would be porn of them and there isn't.

But don't underestimate Cory Bernardi.
posted by flabdablet at 7:33 AM on December 18, 2013


Freedom Commissioner Tim Wilson: "language that explicitly incites violence and directly threatens another individual's safety can be legitimately restricted" *cough*

I'd like to make a post about the IPA and Tim Wilson but I can't.
I just... can't bring myself to do it.
posted by Mezentian at 4:35 PM on December 18, 2013


Make a post about the water, Mezentian.

Cory Bernardi (44), Mathias Cormann (43), Josh Frydenberg (42), Tim Wilson (surely forty something) ... there must have been something in the water.
posted by de at 5:12 PM on December 18, 2013


As long as it wasn't that dreadful fluoride I guess it's all good.
posted by flabdablet at 7:26 PM on December 18, 2013 [2 favorites]


Sometimes it pays to read the comments. [3]
posted by de at 8:21 PM on December 18, 2013


Sometimes it pays even more to write them :-)
posted by flabdablet at 8:24 PM on December 18, 2013 [1 favorite]


Tim Wilson (surely forty something)

He's 33.
posted by His thoughts were red thoughts at 8:30 PM on December 18, 2013


33? Bloody hell, he'll be around long after Annabel Crabb has morphed into Michelle Grattan. Spare us.
posted by de at 8:34 PM on December 18, 2013


I know, right? That appointment is appalling. His so called 'commitment' to free speech is so shallow it's insulting.

Of course, that tweet has now been deleted, but the internet is forever.
posted by His thoughts were red thoughts at 8:51 PM on December 18, 2013


Lovely turn here from Andrew: a vintage spittle-flecked rant against lefties bashing our Tim.

Remember, kids: your right to speak freely to the prison operators we provide for you is the only right that actually needs protecting. Just don't expect us to take any notice of what you say.
posted by flabdablet at 12:34 AM on December 19, 2013


The two Tims: why the Abbott Government cannot compromise with those now savaging Tim Wilson

Deep thoughts with Andrew Bolt. You know what you're clicking.
posted by Mezentian at 5:57 AM on December 19, 2013


Bolt is a grade A tool, and a bigot to boot.

However, this is all clearly a precursor to the Government amending s18C of the Racial Discrimination Act:
(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
There is a legit argument that the including of 'offense' and 'insult' are chilling to freedom of speech, because offence and insult are so subjective.

I support laws that prohibit hate speech. I would also support amending s18C to remove the offence and insult bits.

However, I'm concerned that that Brandis will seek to repeal 18C entirely.

In any case, Tim Wilson is just a sock puppet for this coming legislative amendment that Brandis can use to manufacture support. He's an intellectual lightweight, and he's no defender of freedom by any stretch, just another neo-con talking head.

There are far more qualified human rights defenders, including defenders of freedom of speech, that would have been more appropriate. But this out-of-the-hat appointment makes it very clear that merit isn't a consideration.
posted by His thoughts were red thoughts at 3:36 PM on December 19, 2013 [1 favorite]


IIRC Bolt didn't even get done by 18C, he got done by the fact that he told out and out lies.

But yes it is explicitly clear that 18C is intended to go.
posted by wilful at 2:37 PM on December 20, 2013




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