By Brad Jessup
On 12 December 2013 the High Court revealed its decision in Commonwealth v Australian Capital Territory  HCA 55 (Same Sex Marriage case) on the Commonwealth’s challenge to the Marriage Equality (Same Sex) Act 2013 (ACT), and at the same time it reduced the possibilities for other state and territory proposals for so-called ‘marriage equality laws’.
This blog post presents an alternative way of understanding the case and judgment in the Same Sex Marriage case. I use my interests in the case, my background exposure to the jurisprudence of same sex marriage, and my experiences following the decisions of the High Court of Australia throughout 2013 as an editor of the Opinions on High blog to support my autoethnographic analysis.
I will try to articulate why, despite being reluctant to engage with the issue of same sex marriage for so long, I was surprised and hurt when I learnt of the decision of the High Court.
From Canberra to California
Soon after I began my academic career in Canberra one of my new colleagues entered into Australia’s first public same sex civil partnership. Other new Canberra friends registered their relationship in accordance with the Civil Partnerships Act 2008 (ACT) over the counter while paying their vehicle registration. My boyfriend and I had been ACT residents for about six months and together for over two years. So we could have done the same. We didn’t. We didn’t even discuss it.
My scholarly interests remained elsewhere. Others had been productive, provocative and persuasive in the space. This was so especially following the passage of the Marriage Amendment Act 2004 (Cth), which asserted the federal Parliament’s intent that marriage be a union of a woman and a man. Moreover, I had ‘troubles’ with marriage; let alone ‘gay marriage’, as an exclusionary, archaic institution. Nevertheless, I was not entirely agnostic. I had responded to queries from curious friends about the requirement of celebrants to pronounce the meaning of marriage at their weddings. I also became intrigued by the constitutional, and more so the geographical and sociological, battles over same sex marriage within the States of the US.
I was introduced to the possibility of same sex marriage and the fears and hopes the topic generates during my time in Canberra during the late 2000s. However, it was the 18 months I spent in the United States until January 2013 that showed me that same sex marriage was a battleground issue, and had me thinking that it would be an issue argued in the courts of Australia before too long.
In California I read and relished the decision of the primary court in the case brought to overturn Proposition 8 while researching the Californian ballot process. Proposition 8 was a constitutional amendment passed by a small majority of Californian voters in 2008 that banned same sex marriages in that state. Chief Judge Walker of the US District Court in the 2010 case of Perry v Schwarzenegger (ND Cal, No C 09-2292 VRW, 4 August 2010) (this case was ultimately considered by the US Supreme Court in part in Hollingsworth v Perry (No 12-144, 26 June 2013) slip op 77) offered what our High Court could not provide as a consequence of the parties not pursuing a debate on the facts. Chief Judge Walker offered a thorough, evidence-based exposition of marriage and same sex attraction and judicial confirmation that a civil partnership scheme for same sex attracted people was not the same legally or socially as marriage.
The District Court judgment exposed to me the saddening arguments of those who opposed same sex marriage and the fragility of their arguments when exposed to scrutiny. Throughout the Californian Proposition 8 ballot process opponents of same sex marriage argued that children were at risk from same sex marriage, that homosexuality was not normal, and that the central purpose of marriage was procreation and the raising of children. There were also extreme claims that have subsequently entered the Australian political discourse. The judge concluded that ‘conjecture, speculation and fears are not enough … [s]till less will the moral disapprobation of a group or class of citizens suffice’ to deny members of the community equal treatment. The evidence that they provided was unreliable.
On reflection it was reading the parts of the judgment that relied on Professor Nancy Cott’s evidence that caused me to be open to the possibility of marriage for myself. It was as though I was being spoken to directly when I read Chief Judge Walker’s words about the manifold benefits of marriage and its long social and political significance, about how although it was once an institution of repression and exclusion, it is now one of love, intimacy and stability.
From mid-2013 I had anticipated that a same sex marriage case would come before the High Court. The NSW Parliament handed down a report on same sex marriage in July. It was full of commentary from constitutional lawyers with differing opinions; though with common predictions that the High Court would ultimately be called on to determine the constitutionality of a state marriage law. The Canberra Times reported at about the same time that the ACT would draft its own same sex marriage laws, replacing its earlier civil partnership laws. It was also reported that the ACT would act on the legal advice it received from Stephen Gageler in 2008 before he assumed the position of Solicitor-General (from that position he was appointed to the bench of the High Court). In 2008, Gageler and fellow barrister David Jackson offered advice on the validity of a bill to create ‘what is in substance a marriage’ between people of the same sex.
Gageler and Jackson reached the same conclusion as the High Court, which was sitting without Justice Gageler who had recused himself presumably because he had given the advice, that the scope of the marriage power in s 51(xxi) of the Australian Constitution would allow the Federal Parliament to make laws recognising unions between any two people. Gageler and Jackson opined that states could not create an alternative to marriage for opposite sex attracted couples, even if it were to be called something other than ‘marriage’. However, they did not see how an ACT law that created a marriage-like relationship available only to two men or two women would be inconsistent with a Commonwealth statute under s 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth).
On blog posts (eg here and here) I offered critical perspectives on the legislation and the prospects of the court using the case to advance a cause. However, when the High Court accepted the amicus brief made by Australian Marriage Equality and it announced that it would not make a decision until after marriages would begin to occur under the Marriage Equality (Same Sex) Act 2013 (ACT), I started to become excited by the prospect of the legislation withstanding a challenge. Perhaps I had denied myself the possibility of marriage because the law had. Was I more a technical lawyer than a hopeful romantic?
The High Court hurts
I was watching the High Court case closely but out of context. My mind was coloured by what had occurred in the US. I let myself believe for a moment that the Court would decide what was right, not what only was legal.
I had assumed the High Court would uphold the ACT law, but I did so ignoring what I had learnt about the Court during 2013. The Court proved itself to be cautious and very conventional in its analysis in many of its judgments last year. It did not put stories of misfortune into the words of its judgments, as noted by Anna Dziedzic and Sophie Walker in their review of the people smugglers mandatory minimum sentence case, Magaming v The Queen  HCA 40. In that case there was a story deserving of empathy worth telling but it went untold.
From an outsider’s perspective it appeared that the court was reluctant throughout 2013 to bring significant change to Australian law or society. For instance in the Palm Island alcohol ban case, Maloney v The Queen  HCA 28, the Court did not deviate from a narrow view of the meaning of the words it was required to interpret. Like in the Same Sex Marriage case, in Maloney the Court entrenched discrimination by the government because the law facilitated it, rather than railing against it.
Most significantly, however, the current Court has adopted a more narrow and fatalistic approach to statutory interpretation than previous ones. Ultimately, the Same Sex Marriage case was decided using statutory interpretation principles. Like the second case decided in 2013, Commissioner of Police v Eaton  HCA 2, Gageler J’s approach to statutory interpretation did not accord with the rest of the court. In Eaton I had noted that while Gageler J looked for comparability as a starting point when interpreting statutes, the rest of the Court looked for inconsistency in the first instance.
Whereas Gageler and Jackson saw a space for ACT-based same sex unions within the breadth of the marriage power not utilised by the Commonwealth, the High Court did not. The High Court judges sought and found in the 2004 amendments made to the Marriage Act 1961 (Cth) an ‘implicit negative proposition that the kind of marriage provided for by the [Marriage Act 1961 (Cth)] is the only kind of marriage that may be formed or recognised in Australia’ (emphasis in original). In this respect they seemingly relied on a provision that prevented same sex marriages solemnised overseas from being recognised as marriages in Australia. That is, they went searching for bars or prohibitions rather than searching for opportunities for comparability. When they found the bar that was enough. I was surprised by the choices made by the judges. Their judgment reflected a view of the law that was as subjective and idiosyncratic as my own interpretation. However, I wondered whether the judges understood how they must have affected all of the same sex attracted people who were awaiting their word. Moreover, the Court argued that ‘[g]iving effect to [the] provisions of the ACT Act would alter, impair or detract from the Marriage Act’. I read those words of the judges and thought of those spurious arguments, rejected in Perry v Schwarzenegger, that same sex marriage would somehow undermine the marriages of others or the institution of marriage altogether.
I felt hurt.
The legal possibility of marriage was no closer.
This blog post is an edited and abbreviated version of the journal article ‘The Court Hurts — A Personal Reflection on Commonwealth v ACT (Same Sex Marriage Case)’, recently published in volume 39(1) of the Alternative Law Journal. It is reproduced here with the permission of the publisher. The complete version of the piece is available here.
Please cite the full version of this piece as it is published in the Alternative Law Journal: Brad Jessup, ‘The Court Hurts — A Personal Reflection on Commonwealth v ACT (Same Sex Marriage Case)’ (2014) 39 Alternative Law Journal 45. Opinions on High’s standard reprint permission does not apply to this piece. For requests to republish, email firstname.lastname@example.org, Managing Editor, Alternative Law Journal.