High Court on marriage equality

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.

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