The recent decision of the US Supreme Court to grant “certiorari” (leave to appeal) in a same sex marriage case has brought the matter back to attention in the US. The topic is one with many connections to law and religion, and I thought it was worthwhile to compare the current state of play in the US with the situation in Australia.

The “law and religion” connections are in two main areas. First, the law of marriage in Western societies has been shaped by Christianity, which was the shared world-view of the West for most of the previous two millennia. Proposals to now expand the definition of marriage, to extend the status to same sex couples, are seen by many as radically changing the institution, and hence are objected to by many who share the Christian world-view. Second, a change in the nature of marriage has already produced a number of religious freedom challenges. Should religious clergy who are empowered to conduct weddiings, be required to conduct same sex weddings? Should others who are in the “wedding support industries”, such as florists, cake-makers,or those who hire venues, be required to provide their active support to same sex weddings when they may, on account of sincere religious belief, take the view that these relationships are contrary to God’s purposes and wrong? Once the State authorises entry into same sex marriage, is it legitimate for faith-based schools to teach children that such relationships are sinful? Indeed, is it possible for anyone to say as such in the public square and not be accused of “homophobia”?

One common response to these issues on the part of proponents of same sex marriage is to simply recite the slogan “marriage equality”. But, as I have argued previously, it is not “discrimination” to treat things which are in fact different, differently; not is it discriminatory to deny the conferral of a status on a person or persons when they simply do not meet the accepted criteria for that status. No-one denies that a homosexual person should be able to marry; but what is denied is that a relationship with someone else of the same sex would be a “marriage”, for marriage has never previously meant that.

Nevertheless, the arguments in favour of redefining the institution of marriage to include same sex couples have been made vigorously over the last decade or so, and with some success in a number of Western countries.

Both Australia and the United States have seen this pressure for change. Both countries are Federations, with a Federal legislature with defined powers, and other legislative powers exercised by the various States.

United States of America

In the US, it has commonly been thought that questions of marriage are left to the different States. But the over-riding power of the US Constitution means that a State may not legislate to remove a right or privilege given by the Constitution. Proponents of same sex marriage have been arguing for some years that rights of “equality” to be found or implied in the Constitution mean that no State can choose to deny the right to marry to a same sex couple.

So far this argument has not yet been successful; it is expected that this will be the focus of the forthcoming appeals. Far from being uniformly in favour of same marriage, many individual States have passed laws either through their legislatures, or by referendum, affirming that marriage is between a man and a woman, and rejecting any transformation of the term. (This, by the way, is a more accurate description than that sometimes adopted, of laws “banning” same sex marriage. Something cannot logically be “banned” if it never previously existed! The people of these States, through their democratic processes, have chosen not to adopt a proposed change to the law which has been as it now stands for the entire history of the US.) However, in many of those States, a Federal judge or Court of Appeal has ruled that, despite the will of the people of that State, there is a constitutional “right to same sex marriage” buried deep in the terms of the US Constitution, which over-rides what those people have decided.

Until recently the US Supreme Court had not ruled definitively on the point. In 2013 two high-profile decisions of the Court were seen as supporting a general move to recognition of same sex marriage, but only went a certain way. In United States v Windsor, 570 US __, 2013 WL 3196928, No 12-307 (26 June 2013) federal legislation, the Defence of Marriage Act, which defined marriage for “federal purposes” as between a man and a woman, was struck down as invalid. In Hollingsworth v Perry, 570 US __, 2013 WL 3196927, No 12-144 (26 June 2013) it was held that those in California who had organised a successful referendum in that State defining marriage as between a man and a woman, did not have standing to challenge a decision of a lower court judge that the amendment was unconstitutional (and since the California government would not defend the legislation, the lower court decision remained.)

One point is worth noting. Even commentators who supported the Windsor decision had some problem identifying precisely the legal basis for the striking down of the law! But one of the features of the decision was the “swing” vote of Kennedy J (who provided the majority) where he insisted that it was not only the effect of the Federal legislation that homosexual persons felt denigrated, but in fact that this was indeed the “purpose” or “motive” of those who enacted it- to injure and disparage same-sex unions and those who might form them (see eg 133 S Ct 2693). As Smith points out in his excellent critique, the Court was thereby implying that all of the members of Congress who supported the law, and indeed the President at the time, Bill Clinton, were guilty of an irrational “animus” against homosexual persons. Smith demonstrates convincingly that in fact this charge was completely false, that clear public policy rationales were provided by the supporters of the laws, and he laments the fact that in the debates in this area it seems to be impossible for some to concede that those who disagree with them do so for any but irrational reasons.

As Smith points out, it seems that Kennedy J has adopted the popular view that “to disapprove of homosexual conduct is to declare or deem persons prone to such conduct to be in some sense lesser or inferior human beings” (at p 6.) In a telling passage he continues:

The inference from moral disapproval to ascribed judgments of lesser personhood is not only a non sequitur; it is a pernicious non sequitur. That is because if we are to live peacefully and with mutual respect in a morally pluralistic society, it is imperative that we be able to approve or disapprove of different kinds of conduct, or even of different ways of life, without thereby being deemed to have depreciated the humanity of people who live in ways we disapprove. The invalid inference asserted by the Court in Lawrence and tacitly repeated in Windsor would effectively eliminate that possibility. Logically extended, the inference would inhibit judgments disapproving of racism, sexism, or other forms of bigotry: such judgments would violate the commitment to the “equal moral worth” of all human beings by implying that the people guilty of such offensive and irrational attitudes and actions are themselves somehow lesser or inferior persons.

In more recent developments in the United States, since these decisions a number of State constitutional amendments, or local State statutes, that define marriage as a relationship between a man and a woman, have been challenged and struck down as unconstitutional, on the basis that the implication of Windsor is that the US Constitution somehow contains a federal “right to same sex marriage”.

Indeed, President Obama has now said that this is his own view:

President Obama says he now believes that the Constitution guarantees a right to same-sex marriage in all 50 states but expressed support for the more incremental approach taken by the Supreme Court. Mr. Obama opposed same-sex marriage until 2012, when he came out in favor of letting states decide the issue for themselves and urged them to embrace such unions. In an interview with Jeffrey Toobin of The New Yorker, posted online on Monday, he said same-sex marriage should be a right for all Americans regardless of where they lived. But he added that “given the direction of society, for the court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.” The court struck down part of the federal Defense of Marriage Act last year and, in a separate ruling, effectively allowed same-sex marriage to proceed in California.[1]

Of course, even in the US the legal opinion of the President isn’t binding as a matter of law, but it is an interesting illustration of how public opinion has shifted.

The President’s comment was made in the context of a recent “non-decision” of the Supreme Court. Appeals were filed from a number of the decisions of Federal Circuit Courts of Appeal who had ruled State laws defining marriage in historically traditional ways were invalid. On Oct 6, 2014 the Supreme Court, with no explanation (as is often the case in denial of certiorari) refused appeals from those courts. Commentators argued about what this refusal meant, and why, but no-one really knew.[2] The impact on State laws has, however, was dramatic. In effect all those States whose Federal Circuit courts were under the authority of those appealed from were now required to invalidate a local State law affirming traditional marriage. This means that even in a State where the majority of the voters in the State had supported the historical definition of marriage, those laws were invalid. Same sex marriage is now regarded as being lawful in 36 US States, up by 17 from the number before the Oct 6 ruling.

However, the trend of Federal Circuit Courts of Appeal striking down State laws on these grounds was broken with a more decision of the 6th Circuit, upholding the statutes, which finally resulted in the Supreme Court agreeing to resolve the dispute. The stage is now set for the Court to finally hear argument on the substantive question, which it seems it will do in April. However, what is interesting is the way that the Court has structured the arguments. Time has been allocated for argument on two points: (1) whether there is a “constitutional right” to same sex marriage which would over-ride State laws; and (2) if not, whether a State which does not itself recognise same sex marriage should be obliged to recognise the validity of such a marriage carried out in another State (an argument based, presumably, on the “full faith and credit” clause obliging recognition of other laws within a Federation.) it seems possible that this careful structuring of the issues may mean that the conservative minority on the Court may be able to persuade Kennedy J (whose vote is viewed as the “swing vote” on this issue) that it would be going too far to completely over-ride State discretion on marriage for their own citizens; but that a plausible compromise would require recognition across State borders of a marriage entered into elsewhere. In many ways this would be an interesting outcome- the number of States where same sex marriage is recognised would be reduced to those where the State legislature had consciously chosen to change the law, a fairly small number. But it is impossible to predict exactly what the Supreme Court will decide.

Australia

The situation in Australia is that here our Constitution gives “marriage” as one of the topics that the Federal Parliament may legislate on, under s 51 (xxi). It is a “concurrent” power, shared with the States, but where the Commonwealth has exercised its power, then under s 109 of the Constitution Federal law will over-rule any contrary State law. The two quasi-independent Territories, the ACT and the Northern Territory, are also able to make laws on a wide range of topics, but again those laws must give way where the Commonwealth Parliament has spoken.

Here, then, the most natural way to implement same sex marriage would be by way of amendment to the Federal Marriage Act 1961, which has been the exclusive law on the topic since it commenced in 1963. In 2012 an attempted Bill for same sex marriage was defeated in both Houses of Parliament. An attempt by the ACT, a Federal Territory, to go its own way and to enact a same sex marriage law was over-turned by Australia’s final court of appeal, the High Court, at the end of 2013. I have just written an analysis of this decision here which explains its reasoning.

Unfortunately, in my opinion, the High Court’s decision went beyond striking down the ACT law, and offered comments on whether a future law for same sex marriage passed by the Federal Parliament would be valid. As I discuss in my recent note, I regard these comments as unnecessary and unhelpful, particularly as no opposing position was put in the litigation. I think it is still very much an open question as to whether the Commonwealth’s “marriage” power can be used as it stands to support same sex marriage, or whether (as I think) the change could only be made by referendum.

In conclusion, in the US the question whether same sex marriage will be introduced around the country (even over the opposition of large numbers of voters in the various States), or not, will hinge very substantially on what is decided in the forthcoming US Supreme Court decision. In Australia, it seems clear that the matter is one that will have to at least be decided initially by the Federal Parliament, and at the moment the current Parliament shows no enthusiasm for the question. Even if a change should be approved in the future (and this, despite the claims of supporters, is by no means a forgone conclusion- sometimes the “tide of history” goes out again!), there will still in my view be a serious question as to whether the obiter dicta of the recent High Court decision should be accepted, or whether the Court will need to revisit the scope of the marriage power in the Australian Constitution.

[1] Peter Baker Obama Broadens Support for Same-Sex Marriage (New York Times, Oct. 20, 2014) http://www.nytimes.com/2014/10/21/us/obama-broadens-support-for-same-sex-marriage.html?_r=0 .

[2] See, for one of many comments, Suzanne Goldberg, Symposium: The Supreme Court’s opt out means more marriage equality but continuing harms to gay and lesbian couples, SCOTUSblog (Oct. 6, 2014, 12:48 PM), http://www.scotusblog.com/2014/10/symposium-the-supreme-courts-opt-out-means-more-marriage-equality-but-continuing-harms-to-gay-and-lesbian-couples/ .