News: Same-sex marriage hearing ins and outs

Today was to be the first of two days of hearings of Commonwealth v ACT, the High Court’s first foray into the issue of same-sex marriage. The dispute has been the subject of a number of excellent media pieces explaining the legal issues, most recently a preview on The Conversation by Sydney Law School’s Professor Anne Twomey, including a link to a paper she presented last week on the key statutory provision in the dispute, s. 28 of the ACT (Self-Government) Act 1988. This blog’s case page provides links to coverage  of the case on Opinions on High, the transcripts of hearings to date, the Commonwealth’s writ of summons and the High Court’ s own archive of orders and written submissions. Following a recent innovation, the Court will post videos of the hearings on its webpage.

The breaking news today is that the Court has reportedly reserved its judgment after just a single day. While we wait for the transcript of the proceedings, the other news at this stage is about who is involved in the hearing and who isn’t: who is on the bench? who is at the bar? and who is absent?

On the bench, the open question until today was whether Gageler J would sit. The Court can hear non-constitutional cases with as few as two judges – constitutional rulings require at least three judges in the majority – but there is no doubt that all available judges will sit in a case like this, involving the validity of legislation and wider legal and political ramifications. However, that is subject to a judge opting out or being made not to sit because of apprehended or actual bias, notably for some prior involvement in the case before the Court. Justice Keane has not sat on several cases this year due to his prior role as Chief Justice of the Federal Court, while Gageler J recused himself recently from the Unions NSW case because of advice he gave as Commonwealth-Solicitor-General. In this year’s United States cases on same-sex marriage, an interesting and broadly analogous arose about the role of Kagan J (a former United States Solicitor-General) in deciding litigation on the Defence of Marriage case, discussed here.  While Kagan J did eventually sit in the main case, Windsor v United States, I’ve been informally told the unsurprising (but for now unconfirmed [UPDATE: see first comment below]) news in Australia that Gageler J apparently did not sit in Cth v ACT. The issue is almost certainly the much earlier advice Gageler J co-wrote as a private lawyer on the ACT’s civil unions law, which was published by the ACT government and cited by it in the lead-up to the ACT’s marriage legislation as supportive of the validity of such a law. Note that Gageler J’s absence will only change the outcome of the case if the rest of the Court splits 3-3 and Gageler J would have been on the opposite side to French CJ (who now casts the deciding vote if there is such a split.)

At the bar, the unresolved question was the participation of an interest group, Australian Marriage Equality, in the case. The news today is that it did, without opposition from either the ACT or (more importantly) the Commonwealth. Contrary to some tweets, Australian Marriage Equality is not an intervener, but rather an ‘amicus curae‘ (or ‘friend of the court’.) As discussed here, this means that it is able to make submissions, including (reportedly) oral submissions, but is not a party to the case.  AME’s written submissions are available here. According to news reports, the involvement of AME has a personal angle. Its deputy-director, Ivan Hinton, plans to marry his partner under the ACT on Saturday, unless the Court itself stops him. Hinton and his partner are already married under Canadian law, but a provision of the federal Marriage Act (not at issue in this case) bars any Australian government from recognising that marriage.

There are some notable absences from the bar table: the Attorneys-General of the other seven governments of Australia, who are entitled to intervene in constitutional matters. It is commonplace for there to be multiple government interveners in cases about federalism, as the arguments may have wider ramifications in later federalism cases. Many states would have a particular interest in this case because some of the arguments (notably the debate about the meaning of the federal Marriage Act) may have ramifications for possible future state marriage equality laws. However, none have intervened. This may perhaps be due to the potential narrow focus of the case on the provisions of the ACT’s governing legislation. However, a more likely explanation is the political sensitivities involving the issue of same-sex marriage. The absence of the states makes no formal difference to the case, but does make for a shorter hearing and less diversity in the arguments. It is possible that these factors made the Court more willing to grant amicus curae status to Australian Marriage Equality. Almost certainly, they explain why there was no need for a second day of hearings.



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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

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