Jul 30, 2013

Why gumming up federalism won’t help gay marriage

Australian states are following the lead of foreign nations in legislation for same-sex marriage. But it creates a constitutional mess that might harm the cause of equal rights.

Charles Richardson — Editor of The World is not Enough

Charles Richardson

Editor of The World is not Enough

gay marriage cake

The tide of same-sex marriage continues to advance. Britain, Uruguay, Rhode Island, Minnesota, and now maybe New South Wales and the Australian Capital Territory. The Canberra Times reported yesterday that the ACT government “plans to introduce legislation into the ACT Legislative Assembly during the spring sittings”, two days after The Sydney Morning Herald had an “exclusive” story talking up the chances of a private member’s bill in NSW.

All good news for supporters of marriage equality (and I am certainly one). Or is it?

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4 thoughts on “Why gumming up federalism won’t help gay marriage

  1. Tim

    Take the words “about anything” out of this line: A system where anyone can legislate about anything, and discontented lobbyists can “forum shop” until they find a level willing to take up their cause, isn’t a federation, it’s just a mess and you actually have the definition of a Federation.

    The States are meant to “laboratories” for social experimentation. Otherwise what’s the point? If a single marriage act was so important then the Founders could have made it an exclusive power (like coining money or raising an army). The fact it took until 1961 for the Cth to legislate on Marriage shows it was in no rush to have uniformity on the issue**.

    And why else would the Constitution (s118) require the States to give full faith and credit to the laws and judicial decisions of other states if it did not comprehend that there would be some differences between the States.

    ** Quarantine, on the other hand was legislated for in 1908 but, even here, it allows the States to design their own responses to low-level health issues with the Cth having the power to trump those laws in a national emegency.

  2. Xoanon

    Surely a bit of constitutional turmoil will not set back the equal marriage cause, but hasten the resolution of it nationally. After all, restoring a tidy constitutional balance would be easily achieved by legalising equal marriage across the nation – and that argument would give perfect cover for Lib and Nat MPs who might otherwise be nervy about supporting it.

  3. Charles Richardson

    @Tim – sure, I agree completely about competitive federalism. But I think what works is competition between the states, in areas that are their responsibility (a lot of which the Commonwealth has intruded into and should butt out of). Competition between states and the Commonwealth is much more problematic, because you get different laws for the same people. Now maybe we’d be better off if the Commonwealth had just left marriage to the states, but it didn’t.

    @Xoanon – I think that’s the best argument for state action at this point, that by creating a mess it will force the federal parliament to do something to sort it out, ideally by legalising same-sex marriage across the board. But even if it works I’m a bit uneasy about that sort of constitutional blackmail, and it’s by no means certain that it’ll work.

  4. Jillian Blackall

    The prospects at the federal level are very uncertain at best. I think it’s worth risking an attempt by the states to force the hand of the federal government.

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