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Rundle spoils the Left’s party on ACT gay marriage

The Left is celebrating gay marriage laws in the ACT. But take away the punchbowl — since when does the Left believe states should make laws in defiance of a universal, federal approach? Beware this precedent.

Whoosh whoosh whoosh … that’s the sound of gay and lesbian couples high-tailing it to Canberra in the wake of yesterday’s marriage vote, the nation’s more boring city about to get a lot more interesting. Also, the sound of wearied screenwriters dusting off their hilarious same-sex marriage comedy (Mass-I-do-ssetts, Hawaii He-llo!, Vermont Mezzanine) and running the find/change (‘Amsterdam’/’Manuka’) before shipping it off to Screen Australia.

The Labor + Green vote in the ACT assembly — so much for Labor and Greens not sharing values, danger to democracy etc etc — has become a cause for rejoicing across Left-liberalia throughout the land. No wonder — it is the sort of bold, decisive action that many people wanted to see from Labor, especially from Gillard Labor. The ACT Gallagher government’s move was principled no doubt, but it was also about striking a blow in the war within Labor over SSM, and its obstruction by the remnant Catholic Right.

Quite aside from pure animus, the Labor Right believe that SSM, though having net 50%+ public support overall, doesn’t have it in key marginal seats, and that being identified with it in the lead-up to the last election would have further endangered their real chance of success hahaha, while also identifying them too closely with the Greens hahaha. Hence Gillard’s bizarre mangled defence of her anti-SSM stance to a Left-field audiences during the Juliapalooza tour — she couldn’t say that it simply didn’t play in Punchbowl (though it may well do).

Indeed the celebrations over the move have been reminiscent of the, very moving, passage of a SSM bill in New Zealand, after which the “yes” voters sang a Maori love song. That moment, and Katy Gallagher’s strong and forthright defence of the bill — relief to hear a Labor person talking about something other than Labor — put the strongest argument for SSM forward.

Nevertheless, amidst all the hoopla, the ACT decision, and the Abbott government’s decision to challenge it in the High Court, this is not without problems for the progressive forces. We have for decades relied on the idea that our commitment to universalism means a commitment, within a federation, to federal power over state power.

From the Harvester judgement of 1907 through the failed federalising referenda of 1944, the 1967 referendum on Aboriginal affairs, and the 1984 High Court Franklin Dam decision, we have argued against the conservative notion that particular and local conditions, traditions etc should be allowed to exist in defiance of rights.

Causes that claim a universal right demand a universal approach. In a federal system that is at the federal level, for something such as marriage …”

But now Gallagher is not only arguing that states and territories should have the right to decide on the nature of marriage as they see fit, but that such changes should be applicable right across the nation. That is a double-blow to a federal/universalist politics, since it implies that particular state/territory arrangements should be able to carry over to the whole country.

In arguing that the Abbott government should step aside from a High Court challenge, Gallagher argued that her government was simply doing “something” about discrimination — as if they were addressing an archaic law left on the books by oversight. That’s not really the case; SSM simply didn’t get past a higher Parliament, and the ACT move amounts to something of a run around the back of it.

The upshot of that politics is very tricky. First, it seems to open the federal system up to pure contradiction. For, if tomorrow, a conservative state passes a US-style defence of marriage Act expressly ruling out recognition of SSM, what then? Surely SSM advocates would want the High Court to strike such laws down?

Thus it has gone in the US, but there is one big difference. For all its states rights talk, the US has a strong federal constitution, strengthened by various amendments. Above all, the 14th, guaranteeing “equal protection”, the mechanism used to strike down California’s anti-SSM provisions. There is nothing of that power in our constitution, a feeble document most concerned with rail gauges.

Thus, aligning the Left, or progressives, with the “particularist” side of federalism is fraught with challenges. At root, it’s internally contradictory, and that contradiction would arise when progressives find themselves on the federal side of arguments. If a state wanted to institute its own labour provisions of a neo-liberal severity beyond existing federal frameworks, we would rightly slap them down, even if there was a substantial degree of consent within the state.

We would do so on the grounds that we are one nation, that people move around to work, and that standards should be universal (if a state wants to offer better standards, that’s fine, let business make the challenge against). Such universalism at the national level, expresses the universalism of the issue itself. Everyone labours, or may have to.

That universalism is encoded in SSM — indeed that’s what’s appealed to in the notion of “marriage equality”. The anti-SSM movement, by contrast, appeals to particularist notions; that marriage is an incommensurable institution, based around gender difference, childbirth, and the junction of nature and culture.

I would venture that the anti-SSM movement is going to get more of a dividend out of a High Court decision mandating marriage definition powers to the states, than the SSM movement is. Part of the problem in making this clear is the dunderheaded arrogance of the SSM movement, in presuming their argument to a be a universal truth, rather than a political cause, to be advocated and won — not as a simple tidying up of rights, but as a fundamental shift in human arrangements.

Causes that claim a universal right demand a universal approach. In a federal system that is at the federal level, for something such as marriage which requires transferability across borders. Whatever happens in states, the SSM movement shouldn’t focus on state-by-state battles, but go for the big win, a federal law — and then leave the conservatives to mount draining and backfooted attempts to preserve their position via states’ rights attempts. The ACT decision has cheered many, who may well come to rue its paradoxical effects.

* Vermont Mezzanine opens at the Nova, Chauvel and Electric Shadows in 2014

17
  • 1
    Steve777
    Posted Wednesday, 23 October 2013 at 12:42 pm | Permalink

    Funny how enthusiasm for States’ Rights versus Centralism varies on both sides of politics seems to depend largely upon who is in power federally.

  • 2
    Posted Wednesday, 23 October 2013 at 1:39 pm | Permalink

    The whole world was turned upside down when the Howard Government relinquished the Liberals’ traditional states’ rights policies to centralise many activities, most dramatically industrial relations.

  • 3
    thelorikeet
    Posted Wednesday, 23 October 2013 at 1:39 pm | Permalink

    Ah! The eye of the beholder.

    Could it not be that the Feds have vacated the field of non-traditional marriage, leaving us not with varied or inconsistent or non-uniform marriage laws, but two quite distinct sets of laws, one being normative, uniform laws of traditional marriage; the other being what is left, where uniformity matters little or less or not at all: Marriage Equality Act in the ACT; Civil Partnerships Act (watered down) in Qld etc, etc.

    Rudd’s (politically convenient) conversion was founded on the perfectly sensible idea that “marriage” has two parts: the traditional union as form of religious sanction; and the ordering of relationships as a matter of civil and social prudence. SSM and civil union laws fall into the latter camp. The Marriage Act is a hybrid and since the Howard amendments is limited to hetero-sex relationships.It is unconcerned with the content of the ACT statute, and the ACT statute is concerned with the Marriage Act solely as a point of exclusion, defining the civil/constitutional lacuna.

    Interestingly the French have long had civil unions as the basis of marriage (in addition to their recent laws). French people or civilly married (to be married by the mayor at City Hall is: “marié par le maire à la mairie”. That is the legal, civil marriage. It may be followed by a religious ceremony. (Gay marriage in France from earlier this year is on top of the civic (hetero-sex) marriage and civil unions (le pacte civil de solidarité - or being married “in the gay way” as a French friend put it some years ago).

    The universal right (IMHO) is not to be married but to be afforded dignity and recognition of union and the protection of civil society of the relationship and orderly management of its demise whether by death or divorce and its analogues.

    At a person level - and maybe this underpins Gillard’s odd position - I don’t care much for marriage as an institution straight gay or otherwise, and cannot work out why people hanker-so, despite being married and in a long-term relationship and enjoying that fact. Like the Pope, said “who am I to judge?”

  • 4
    Richard
    Posted Wednesday, 23 October 2013 at 2:01 pm | Permalink

    Interesting analysis. I suspect that the best way this could go for SSM and the left is for the High Court to slap the law down. The image of thousands of married same sex couples with their ACT marriage contracts in tatters, lorded over by Abbott and Brandis, their mouths grimaced with false regret, will hurt the coalition badly. Cue SSM being introduced as the first order of business of the next Labor government, a la Rudd’s apology/Kyoto.

  • 5
    Tyler T
    Posted Wednesday, 23 October 2013 at 2:10 pm | Permalink

    Nothing in the bill erodes the power of the federal government, they could pass a bill tomorrow (if they had the numbers) expressly forbidding a bill like the ACT just passed (assuming the current marriage act isn’t held to do that already)

  • 6
    Hugh (Charlie) McColl
    Posted Wednesday, 23 October 2013 at 2:23 pm | Permalink

    And if the High Court does not slap it down?

  • 7
    Tyler T
    Posted Wednesday, 23 October 2013 at 2:39 pm | Permalink

    Then the federal government can pass legislation expressly doing so
    The only ‘odd’ outcome would be if the court holds that the marriage power granted to the Cth doesn’t give them the right to make legislation with respect to same sex marriage (given the understanding of the day etc) but given the style of constitutional interpretation used here that’s very unlikely.

  • 8
    Andybob
    Posted Wednesday, 23 October 2013 at 3:42 pm | Permalink

    While the Feds can pass specific laws relating to marriage in the ACT that would make the ACT Self Government legislation a dead letter. So they are off to the High Court, at least for now.

    It is possible for the ACT to win this fight without upsetting the existing States’ rights applecart. That is because the test for Federal inconsistency under s.28 of the Self Government legislation is narrower than the test under s.109 of the Constitution.

    Section 109 has been interpreted to mean that a State cannot legislate if the Federal law impliedly or expressly ‘covers the field’.

    An ACT law, however, may not be invalid, even if the Federal law covers the field, if it can ‘operate concurrently’.

  • 9
    Posted Wednesday, 23 October 2013 at 4:15 pm | Permalink

    Exactly GUY RUNDLE: It appears the electorate has a very short memory. When John Winston Howard was elected one of his first acts was to overturn the then recently passed euthanasia bill in the Northern Territory.

    The ppl can cry out for a just law until they are puce. But religion and its moronic, press-ganged leaders will always triumph.

    What a hide bound conservative lot we are.

  • 10
    AR
    Posted Wednesday, 23 October 2013 at 4:36 pm | Permalink

    Gillard stated that she didn’t believe in marriage per se so why drift off into the ether with SSM?
    It’s akin to being opposed to female priests for the simple reason of opposing priests of any kind.
    Of course, de Bryun et al still have Shortarse by the balls (if any - no evidence thus far) so long as the Sussex St Lubynaka rules.

  • 11
    Pedantic, Balwyn
    Posted Wednesday, 23 October 2013 at 4:36 pm | Permalink

    Julia Gillard’s response to SSM may seem bizarre, even mangled because she had a conflict.I suspect that she simply does not support marriage, of any variety, however to publically say so would draw even greater opprobrium than her current position.

  • 12
    Circus Taximus
    Posted Wednesday, 23 October 2013 at 7:41 pm | Permalink

    I agree, Pedantic. And I think she more or less confirmed that in one of her road show question times after the election.

  • 13
    GLJ
    Posted Wednesday, 23 October 2013 at 7:49 pm | Permalink

    Hands up those who believe that the LNP gov. is acting to ensure alignment of State and Federal Laws.. Ok now hands up those who think that those with conservative views on society and its structures are out to wreck the ACT SSM legislation and are hiding behind the alignment argument???
    Thought so…

  • 14
    Carlene Colahan
    Posted Wednesday, 23 October 2013 at 8:16 pm | Permalink

    A timely reminder of the dangerous door this opens. Doesn’t change my view that SSM, particularly as described in the ACT, legislation, narrowly defines what relationships are equal & further marginalises those who don’t fit. Why the left supports enshrining discrimination & inequality in legislation is beyond me

  • 15
    Phillip Herbert
    Posted Thursday, 24 October 2013 at 1:03 pm | Permalink

    Interesting…There is no way short of a head transplant on Abbott that SSM. will get up Federally. This in conjunction with with factors that; Labor can’t get itself to vote on block despite equality is on the platform, and Oz is unique in not having human rights charter, put a Federal initiative in a very dark place. Thus contingency plan, ‘A’; State/Territory initiatives. State initiatives have Federal efficacy, for example with consenting same sex in private and equal employment opportunity legislation. This was not ideal and the transition to Federal was long and arduous, but it worked. There are two factors I find perplexing; Abbott had ‘mandate’ to take the matter to the, ‘Party’ room, he did not, and Shorten’s and associates silence on Abbott’s mode of operation…

  • 16
    Hunt Ian
    Posted Friday, 25 October 2013 at 1:27 pm | Permalink

    Hmm. Yes, Guy people on the left should be opposed to “the conservative notion that particular and local conditions, traditions etc should be allowed to exist in defiance of rights” but I am not going to oppose a law in the ACT that gives equal official recognition in the ACT to all committed relationships based on sexual love. I have never understood why people would want for any decent reason to oppose same sex couple’s having any form of recognition of their relationship that heterosexual couples have and so I think the ACT’s move is good and a corresponding Federal move for the whole of Australia would be better.
    Yes, other state governments could try to put anti SSM legislation in place but this would be an incentive for a Federal Law to override it and an incentive for people in those states to vote those governments out, Murdoch media allowing.
    Abbott is going to the High Court as the easy way out but the High Court might well decide that the ACT legislation is not incompatible with the Federal Act and not a matter reserved for the Commonwealth. Then Abbott will do what he wants to avoid, impose discipline on the Coalition and vote the ACT down.

  • 17
    Posted Friday, 25 October 2013 at 6:36 pm | Permalink

    HUNT, IAN: A few years ago the Northern Territory brought in a law allowing euthanasia. John Howard, when he got into power, smartly overturned it.

    Such are the powers of a government. Especially this government. Fifty gets you one dollar that Tony Rabbott will overturn this law.

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