Last Friday saw the first ‘directions hearing’ in the Commonwealth’s High Court challenge to the ACT’s recently enacted marriage equality law. While the media focused on French CJ’s indication that the final court hearing — not, as some media suggested, the judgment — may occur in early December, the directions hearing also revealed that the Court may need to resolve some disputes about the role of Australian law in giving effect to the social institution of marriage.

The Commonwealth’s attack on the ACT marriage law centres on its argument that one object of the federal Marriage Act is to ‘address’ a ‘public interest’ in the ‘uniformity of marriage law throughout Australia’. In its statement of claim, it offered six propositions in support of that argument:

• some Australian statutes include provisions that only apply (or apply differently) if there is a marriage;
• a person’s marital status has always affected ‘certain rights and obligations’ under some Australian laws;
• marriage is itself a ‘status’ that confers a ‘complex bundle’ of legal consequences
• marriage is ‘an important social institution in Australia to which the Marriage Act gives effect’;
• the Marriage Act furthers that social institution by ‘mediat[ing] … the interaction’ between religious solemnisation ceremonies and their secular legal consequences;
• there has always been a ‘public interest in the uniformity of marriage law throughout Australia and the establishment of a single and indivisible concept of marriage for the law of Australia’.

In written submissions for last Friday’s hearing, the Commonwealth stated that ‘it did ‘not expect that there would be any contested (or indeed any) evidential issues’. However, the ACT soon cast doubt on that hope, asking the Commonwealth for ‘particulars’ for last five claims.

The issue has arisen at this stage because the High Court prefers to resolve evidential disputes in advance of the hearing (sometimes by referring them to a lower court.) That is why its Rules require a plaintiff (like the Commonwealth) to identify ‘all material facts’ when it issues its writ and to provide enough details to allow the other side (the ACT in this case) to determine its stance in advance. At Friday’s hearing, the Commonwealth said that the fourth of its claims was the only ‘material fact’ it would rely upon, expressed surprise that the ACT would dispute that ‘marriage is an important social institution in Australia’ and foreshadowed that it would ask the Court to take ‘judicial notice‘ of that claim (a process that allows Australian judges to inform themselves of matters that no-one would reasonably question that are either commonly known or can be discovered from indisputable sources). As for its five remaining claims, the Commonwealth clarified that they were merely assertions about how Australian law works, the stuff of lawyerly arguments rather than evidence (and therefore, as French CJ pointed out, not needed in the statement of claim at all).

It is very unlikely that the ACT will argue that marriage is not socially important in Australia, though that may depend upon what particulars the Commonwealth provides for that assertion. But the ACT is more likely to dispute the Commonwealth’s broader claim that the federal Marriage Act ‘gives effect’ to that social institution by fixing an ‘indivisible’ definition for all Australian law. Such claims about the relationship between the law and social institutions can be both crucial and controversial when it comes to disputes about marriage statutes. In this year’s United States Supreme Court decision on a law fixing a uniform definition of marriage for all federal laws in the USA, the majority said that New York State’s Marriage Equality Act:

is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.

That meant, the majority said, that the corresponding social effect of the federal Defence of Marriage Act was ‘to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages’. Justice Scalia, in dissent, labelled that finding, which led the majority to strike down the law as a violation of equal rights, ‘a judicial distortion of our society’s debate over marriage’.

In Australia,  where the sole legal issue is federalism, not equality, the High Court’s finding on whether or not the federal Marriage Act‘s purpose is to prevent Australia’s states and territories from giving local legal effect to their own communities’ ‘evolving understanding’ of the social institution of marriage may well determine the fate of the ACT’s same-sex marriage law. At Friday’s hearing, French CJ gave the Commonwealth leave to amend all of its non-social claims about marriage, told the ACT to file its response to the Commonwealth’s claims by 1 November and set a further directions hearing for 4 November.