Geoffrey Luck (The Australian, “Rush to judgment has hidden agenda”, 27/12) need not fear sinister intent in the High Court’s discussion  of “something they were not asked to consider” in the process of ruling on the ACT’s gay marriage law. Discussion in passing of broader issues surrounding the question at hand is a centuries-old common-law tradition known as “obiter dicta”, intended to illuminate a court’s reasoning and provide guidance for future decisions.

What does smack of disingenuousness is that an experienced journalist like Mr Luck would pretend to be unaware of this. It seems he is laying the groundwork for accusations of “judicial activism” if and when the Court makes a ruling which offends his personal views.

David Flint (The Australian, 28/12) would import into Australia the “originalism” favoured by the US Republican Right, insisting that the Court should interpret our Constitution in terms of the subjective understandings of its “founders” (a US term for framers). His assertion that the people “approved” these understandings is a furphy, as the Constitution was established by an act of British Parliament. But on this basis he objects to the Court’s gender-neutral definition of marriage, and insists a referendum is needed to establish gay marriage.

Professor Flint would be well aware that the historical guesswork of originalism was rejected long ago in this country, in favour of a rigorous focus on the text of the Constitution itself. Its authors wrote in deliberately broad terms to allow not only for the range of views which existed at the time, but also for those they could not foresee; they did not expect the nation to be frozen in time in 1901. If the courts took Flint’s approach, a jury would still consist only of propertied males, and the Constitutional “race power” would still be used to prevent Asian immigration.

The Constitution gives plenary power to the Commonwealth to legislate on marriage, without caveats regarding gender or anything else. Thus, what legal marriage means today is for the Australian people to decide through their elected representatives. Even the Government concedes it has the power to legislate on same-sex marriage, and in fact this is exactly what Howard did in 2004 when he banned it by inserting gender requirements into the Marriage Act. No referendum was needed then, and none is needed to change it back.

What is needed is the political ticker to stare down a noisy, zealous minority who fear the diversity the rest of us celebrate.

Christian lobbyist Lyle Shelton (“No mandate for change”, The Australian, 18/9) is wrong to say that any Constitutional challenge to marriage legislation would be about “what marriage meant in 1901”. The High Court has never viewed the Constitution, or the nation, as frozen in time. In its decisions on subjects that have changed substantially in meaning since Federation, such as race, political rights, corporations, external affairs, and even juries, the contemporary meaning has rightly always been preferred.

There are many thinking Christians in this country who are able to reconcile their personal view of homosexuality with their membership of a secular democracy, and thus do not insist, as Shelton does, that public law should reflect their private dogma.

Recent talk of a “Christian vote” (“‘Judas kiss’ will cost PM”, The Australian, 5/9) suggests it is time for a reminder of what kind of polity we live in. The Australian Constitution both protects private religious freedom, and excludes religions from public favour. In a secular nation, it is not a valid ambition for religious groups to influence government action on the basis of religious beliefs.

Self-styled “Pastor” Matt Prater is entitled to his views on gay marriage, but in so far as they are religious doctrine, they can have no bearing on any government’s treatment of the issue of legal equality. Discussions of what a particular religious text says or doesn’t say about homosexuality are entertaining enough on Q&A, but can have no place in parliament.

Christian anti-marriage equality campaigner David van Gend (‘Pity the child of same sex union’, The Australian, 4/6) is confused about the role of the law in a civilised society. It is not the case that ‘marriage laws … exist to reinforce [a] biological foundation’. Biology takes care of itself. The law exists to ensure a stable, just and fair society. All are equal before it; this is the principle at stake.

Van Gend’s emotive talk of “abuse of a child’s birthright” is a smokescreen: married and unmarried people of all sexualities can already raise children, or not, as they choose. Marriage law reform will not change this. 

Van Gend blithely quotes social scientists like Claude Levi-Strauss (who held a very different view!) to further his jarringly postmodern theory of law as anthropology, yet rejects as ‘shallow’ studies which consistently show that children of same-sex couples do just as well as others. If his concerns for children are not based on fact, then what? He should remember that the law is also secular.

Janet Albrechtsen (“No short cuts to gay marriage”, The Australian, 3/4) seems so uncomfortable admitting that the Left has been right on gay marriage all along, that she devotes most of her column to impugning their motives: they hold their views to “establish their hip credentials” or “moral superiority”, or as “absolution for sins”, and they work to achieve it the “wrong way”, which apparently includes anything aimed at actually legalising it.

In contrast, pro-gay marriage conservatives hold their views for the “right” reasons, like the Republican senator who had a sudden attack of empathy when his son came out. And they work towards it the “right” way, which apparently involves waiting until everyone who objects to it dies of old age.

This feat of mind-reading is impressive but irrelevant and over-complicated. The issue is simple: gay couples cannot be legally married; thus they are denied a legal right because they are gay. That is discrimination by definition. Albrechtsen’s confusion about that key point is demonstrated by this hedge: “Gay couples enjoy the same substantive rights as heterosexual couples. If they don’t they should.” She got it right with the second sentence.

The Australian’s editorial (“Exercising a democratic right”, 27/7) defends Chris Bowen’s intention to vote against marriage equality, on the grounds that MPs should always vote according to majority opinion in their local electorates. This is disingenuously naive: they must also consider the broad national view, their party’s policy, informed opinion, and their own knowledge and belief. Should Southern U.S. Congress members have voted against repealing race laws simply because most of their constituents were rednecks? Sometimes leaders should lead.

Brendan O’Neill (“Silence of the illiberal lambs”, The Australian, 5/10) brings us the shocking news that “Christians who oppose gay marriage are accused of ‘homophobia'”. What next? Will white supremacists who oppose interracial marriage be accused of “racism”?

On gay marriage, The Australian employs its favored two-pronged strategy: feigning neutrality in editorials, but lets its right-wing catholic cohort do the dirtywork. Some examples:

Like many in the anti gay marriage lobby, David van Gend (“A dad does matter to a child, whether gay couples like it or not”, 29/8) is unwilling to “come out” as anti-gay, but paints himself into a corner by trying to equate marriage with reproduction. Such arguments will always fail because they apply equally to childless or adoptive heterosexual couples. Angela Shanahan is a serial offender in this regard.

“A bigot is someone who refuses to see the other point of view” says Van Gend, a doctor who is still looking for causes and cures for homosexuality. If he is uncomfortable with that label, he should rethink his denial of people’s civil equality because of who they are.

Arguments were frequently made last century against interracial marriage, which, like Alice Woolven’s against gay marriage (Letters, 27/8), hid behind concern for the well-being of the children. But if Woolven had bothered to look at actual studies of same-sex parenting instead of irrelevant data about dysfunctional heterosexual families, she would know that those children do as well as any others.

Christopher Pearson errs by equating a change in tradition with relativism (“Vote against gay marriage”, 26/8). Traditions are not the same thing as absolute values; in fact, they may even stand opposed. Changing the tradition of marriage to include same-sex couples extends the universal value of equality before the law, just as it did when sanctions against mixed-race marriages were lifted. Not all traditions “persist for good reasons”.

When Bob Katter or others on the Right spout hateful anti-gay invective and are criticised for doing so, The Australian defends the invective as an expression of free speech, but condemns the criticism as suppression of it (“Same-sex marriage debate must not be shut down”, 26/8). Either they don’t understand what free speech means, or they can dish it but not take it.

“Opposing the idea of gay marriage does not make a person a homophobe”, says Angela Shanahan (“Cheap emotionalism stymies debate”, The Australian, 24/7). Let’s exchange the word “gay” for “interracial”, and “homophobe” for “racist” – as others have done in the past – and see if that sentence still makes sense.

Shanahan’s arguments from “common sense”, “nature” and “fundamental and bedrock values” are the same meaningless generalities used by opponents of marriage between couples of different races, and indeed religions, to justify their prejudice.

We live in a democracy, so Shanahan is entitled to her religious beliefs; but we don’t live in a theocracy, so they have no place in law.