Australia

Oct 23, 2013

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.

Guy Rundle — Correspondent-at-large

Guy Rundle

Correspondent-at-large

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.

17 comments

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17 thoughts on “Rundle spoils the Left’s party on ACT gay marriage

  1. Steve777

    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. Gavin Moodie

    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

    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

    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

    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

    And if the High Court does not slap it down?

  7. Tyler T

    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

    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. Venise Alstergren

    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

    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.

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