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Peter Fitzsimons asks in the Sydney Morning Herald – how did the Liberal Party get into such a mess over marriage equality? He talks of the collapse of the Liberal Party as a ‘broad church’ able to accommodate ’widely differing views’. He asks whether Malcolm Turnbull might want to repeat the quote attributed to Henry II that lead to the murder of Thomas Becket - ‘Will no one rid me of this turbulent priest?’ Becket was the Archbishop of Canterbury and he was killed in 1170 by three knights loyal to the King acting in response to what the King had said.
The short quote is a paraphrasing of what Henry II said. Simon Schama quotes Edward Grim’s 1180 version - translated from Latin as ‘What miserable drones and traitors have I nourished and brought up in my household, who let their lord be treated with such shameful contempt by a low-born cleric?’ Grim was a hagiographer for Becket and was a witness to the murder.
Oddly enough the 'turbulent priest' quote was referenced by James Comey when giving evidence to the U.S. Senate intelligence committee in early June when being questioned about his sacking as FBI Director by President Trump.
The 'turbulent priest' quote draws attention to the victim in a personal drama being played out between men in power.
It is much more important to recall that the murder of Becket was one episode in a contest between church and state at least as important as the signing of Magna Carta - 45 years later in 1215. Becket and Henry II disputed whether the state had authority over the church following enactment of the Constitutions of Clarendon in 1164. These were laws passed as Henry II brought the civil law under the control of the state. In doing so, it was necessary to limit the privileges of the church which had expanded in the reign of King Stephen. In fact, this contest made it possible for Magna Carta to begin the task of establishing rights under the rule of law administered by the state.
The marriage equality debate in Australia is not really about the personal drama of men in power. It is in fact, a re-visiting of the problem of separating church from state and the way it is handled has profound implications for the rule of law and the nature of democracy. To make sense of the debate over same-sex marriage it is necessary to tease out the secular and social nature of marriage from the religious nature of marriage.
Marriage is a civil – not a religious institution
In 1540 An Act Marriages to stand notwithstanding Pre-contracts was passed in the reign of King Henry VIII to prevent the Ecclesiastical Courts of England from annulling marriages on the basis of the alleged existence of pre-contracts to wed another. The Act describes the harms that flowed from Church courts annulling solemnised marriages after consummation and the issue of children (having sex and kids). The Act prohibited any person from bringing any action in the ‘Spiritual Courts’ to undo a marriage relying on an alleged pre-contract to marry someone else.
The competition between temporal and spiritual authority continued over the centuries. In The Statutes Relating to the Ecclesiastical and Eleemosynary Institutions of England, Wales, Ireland, India, and the Colonies: With the Decisions Thereon, Volume 2, Stephens (1845) records one such dispute where temporal courts used the 1540 Act to prevent Ecclesiastical Courts annulling incestuous marriages after one party to the marriage died. The temporal courts did this to protect the interests of the children of that marriage - given that those children were considered at law to be legitimate heirs up until the death of their parent - and were innocent of any wrongdoing by a parent. Stephens quotes Bancroft, who wrote that in the 3rd year of the reign of James I (1606):
the ecclesiastical courts complained of the interference of the temporal courts in cases of ecclesiastical cognizance; and amongst others, (in the 20th article,) 'that a prohibition had been awarded in a case of an incestuous marriage, suggesting, under pretence of a statute of Henry the Eighth, that it appertained to the temporal courts, and not to the ecclesiastical, to determine what marriages are lawful, and what incestuous, by the word of God.'
With the passing of An Act for the better preventing of clandestine Marriages 1753, only marriages performed in England and Wales by the Church of England, Quakers and Jews were legally recognised. This led to numerous problems, particularly for those outside these religious communities. As a result of the problems created by the 1753 law, An Act for Marriages in England 1836 was passed. This 1836 Act allowed persons to become lawfully married outside the three religions of the 1753 Act by undergoing a civil marriage. These civil marriages could be incorporated into the services of other religious denominations provided the civil elements of marriage were observed with the attendance of a Registrar and two witnesses.
In this way, the civil marriage in law was distinguished from the religious rite of marriage although both may take place in the same ceremony. The 1836 Act imposed strict controls for these blended ceremonies to be lawful including the formal registration of other denominations, and of the buildings they use to perform marriages. The relevant section did not give legal status to the religious rite of marriage of other denominations. It clearly distinguishes between the religious rite of marriage and the civil requirements of marriage in these terms:
XX. And be it enacted, That after the Expiration of the said Period of Twenty-one Days, or of Seven Days if the Marriage is by Licence, Marriages may be solemnized in the registered Building stated as aforesaid in the Notice of such Marriage, between and by the Parties described in the Notice and Certificate, according to such Form and Ceremony as they may see fit to adopt: Provided nevertheless, that every such Marriage shall be solemnized with open Doors, between the Hours of Eight and Twelve in the Forenoon, in the Presence of some Registrar of the District in which such registered Building is situate, and of Two or more credible Witnesses ; provided also, that in some Part of the Ceremony and in the Presence of such Registrar and Witnesses, each of the Parties shall declare,
'I do solemnly declare, That I know not of any lawful Impediment why I A.B. may not be joined in Matrimony to C.D.'
And each of the Parties shall say to each other,
'I call upon these Persons here present to witness that I A.B. do take thee C.D. to be my lawful wedded Wife [or Husband.]'
Provided also that there shall be no lawful Impediment to the Marriage of such Parties.
The arguments of those who oppose same-sex marriage inevitably fail to recognise that there are two distinct aspects of marriage and that only one of these gives rise to a legally recognised marital relationship. A lawful marriage only takes place in Australia when the civil requirements of marriage as set out in legislation are met.
Rituals and ceremonies of marriage also exist typically in a religious setting. Where performed in Australia, none of these religious ceremonies alone give rise to a lawfully recognised marriage. However, the civil requirements of marriage may be incorporated into a religious service so that in the one service a lawful marriage may be created.
Parliamentarians are elected to deal with the secular nature of marriage that gives legal force to a civil or religious ceremony of marriage. The churches and religious organisations are free to have their own beliefs about religious ceremonies but a religious ceremony on its own does not create a marriage in Australia.
The law of marriage in Australia
Section 51 of the Australian Constitution gives specific powers to the Commonwealth. Included among these are the following stated powers over marriage and divorce:
(xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;
Marriage is not defined in the Constitution. Up until the Howard amendments in 2004 marriage was not defined in the Marriage Act 1961 (Cth). There is a clear line of authority in the High Court that establishes that ‘marriage’ as used in the Constitution has no particular definition.
The case of Re Wakim  HCA 27; 198 CLR 511 was about whether the Commonwealth could vest judicial power in state courts, requiring the High Court to deal with questions about how to interpret words used in the Constitution. In his judgment, McHugh J considered the need to avoid fixing the meaning of words to one historical context and referred to how marriage for the Constitution arguably includes same sex marriage:
Indeed, many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered. … In these and other cases, the test is simply: what do these words mean to us as late 20th century Australians? Such an approach accords with the recognition of Isaacs J in The Commonwealth v Kreglinger & Fernau Ltd and Bardsley that our Constitution was ‘made, not for a single occasion, but for the continued life and progress of the community’.
The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above. Thus, in 1901 ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably ‘marriage’ now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.
The case of The Attorney-General for the Commonwealth & ‘Kevin and Jennifer’ & Human Rights and Equal Opportunity Commission  FamCA 94 was an appeal decision in the Family Court of Australia. It considered whether a marriage could take place between a transgender man and a woman - leading to earnest consideration of what was meant by a ‘man’. The matter was argued this way because the parties accepted that a valid marriage, for the purpose of the Marriage Act 1961 (Cth) must be between a man and a woman. The court held that the definition of marriage was ‘not frozen in time’ and that a transgender man could lawfully marry a woman:
It seems to be inconsistent with the approach of the High Court to the interpretation of other heads of Commonwealth power to place marriage in a special category, frozen in time to 1901. We therefore approach the matter on the basis that it is within the power of Parliament to regulate marriages within Australia that are outside the monogamistic Christian tradition. Indeed, the contrary was not argued on behalf of the Attorney-General.
The framers of the Constitution were anxious to avoid the experience of the United States where similar powers were left to the states. However, there was no urgency and national marriage and divorce laws were not enacted until 1961. This is how the ACT passed the Marriage Equality (Same Sex) Act 2013 (ACT). This ACT law was disallowed by the High Court when it decided that amendments to the Marriage Act 1961 (Cth) that were passed in 2004 to define marriage for the first time in Australian law as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’ had the effect of preventing the States or Territories from recognising same-sex marriages.
The effect of the 2004 amendments in limiting the otherwise broad use of the term 'marriage' in the Constitution was put beyond any question by the unanimous judgment of the full High Court in Commonwealth v Australian Capital Territory  HCA 55 where it held that:
It is not now possible (if it ever was) to decide what the juristic concept of marriage includes by confining attention to the marriage law of only those countries which provide for forms of marriage which accord with a preconceived notion of what marriage ‘should’ be. More particularly, the nineteenth century use of terms of approval, like ‘marriages throughout Christendom’ or marriages according to the law of ‘Christian states’, or terms of disapproval, like ‘marriages among infidel nations’, served only to obscure circularity of reasoning. Each was a term which sought to mask the adoption of a premise which begged the question of what ‘marriage’ means. The marriage law of many nations has always encompassed (and now encompasses) relations other than marriage as understood in Hyde v Hyde.
Other legal systems now provide for marriage between persons of the same sex. This may properly be described as being a recent development of the law of marriage in those jurisdictions. It is not useful or relevant for this Court to examine how or why this has happened. What matters is that the juristic concept of marriage (the concept to which s 51(xxi) refers) embraces such unions. They are consensual unions of the kind which has been described. The legal status of marriage, like any legal status, applies to only some persons within a jurisdiction. The boundaries of the class of persons who have that legal status are set by law and those boundaries are not immutable. When used in s 51(xxi), ‘marriage’ is a term which includes a marriage between persons of the same sex.
The issue in this case was whether an ACT law allowing for same-sex marriages was invalidated by the lawful exercise of Commonwealth power that overrode any inconsistent state or territory law. In deciding that the ACT law was inconsistent with the 2004 wording of the Marriage Act, the High Court reinforced that this was simply a matter of how the Commonwealth parliament chose to limit the definition of marriage under the Marriage Act:
So long as the Marriage Act continues to define ‘marriage’ as it now does and to provide, in effect, that only a marriage conforming to that definition may be formed or recognised in Australia, the provisions of the ACT Act providing for marriage under that Act remain inoperative.
Same-sex marriage before 2004
Historical attitudes or assumptions about the nature of marriage are not a helpful guide for ordering a modern society. The proof of this can be found when we consider the levels of discrimination and oppression suffered by some members of society through time. From feudalism, the religious wars, oppression, slavery, exclusion and criminalisation, various groups have been victimised through time.
It is dishonest to discuss the nature of marriage and whether marriage ought to be defined to exclude same-sex couples as though history were a neutral landscape inhabited by goodly, well-intentioned and devoutly pious people – none of whom were homosexual. It is only relatively recently that the consensual expression of sexual orientation among adults has been de-criminalised and just 2007 when wide ranging steps were taken at a Federal level to end decades of discrimination and marginalisation.
The persistence of views concerning the supposedly inviolable Christian nature of marriage in Australia probably owes a lot to the insertion of restrictive phrases in legislation other than the Marriage Act 1961 (Cth). This has occurred as a result of political processes rather than legal necessity flowing from the common law or the Constitution. In other words, restrictive phrases have been dictated by conservative Christian politics not law.
In the Matrimonial Causes Act 1959 (Cth), section 25 dealt with court jurisdiction and sub-section (2) provided that courts were to act in accordance with the practice of the Ecclesiastical courts in England prior to 1857:
25. (2) Subject to this Act, a court exercising jurisdiction under this Act in proceedings for a decree of nullity of marriage, judicial separation, restitution of conjugal rights or jactitation of marriage shall proceed and act and give relief as nearly as may be in conformity with the principles and rules applied in the ecclesiastical courts in England immediately before the commencement of the Imperial Act known as The Matrimonial Causes Act 1857.
The Marriage Act 1961 set out requirements in section 46 for ‘Certain authorised celebrants to explain nature of marriage relationship’. This applied to non-religious celebrants who were required to say that they were authorised to solemnise marriages. They were also to remind the couple of the solemn and binding nature of marriage and that:
Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
The Act assumed that religious celebrants could indicate the use of similar statements as part of their service and therefore were not obliged to follow the precise formula as set out in section 46. Section 43 of the Family Law Act 1975, set out ‘Principles to be applied by courts’, no doubt to facilitate passage of no-fault divorce. The principles include:
(1) (a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
It is this background of ingrained prejudice that helps explain the reasoning of Kay J in the 1991 judgment of Kapadia & Kapadia (1991) FLC 92-245, where the parties were legally married on two occasions:
Logic must surely prevail. A second ceremony of marriage involving parties who are already lawfully married must be a nullity, despite the fact that the grounds of nullity in section 23B (1) purport to be exclusive. If these grounds were really exclusive, marriage between persons of the same sex would be valid, for there is no ground of nullity which covers this situation either. The possibility of a valid homosexual marriage under current law is, however, an absurdity which only confirms the opinion of the ground of nullity in section 23B (1) are not in truth all embracing (p 78,668).
With this history in mind we can better understand how exclusive definitions of marriage are deeply tainted by prejudice and ignorance. It was not until the 1999 High Court decision of Croome v Tasmania that the last laws for the criminalisation of consenting adult homosexual sexual behaviour were swept away by federal laws to protect the human right to sexual privacy.
The Liberal Party and marriage equality
In October 2016, Prime Minister Turnbull promised a fair and reasonable debate on same-sex marriage. As Karen Brooks says - You’re wrong, Mr Turnbull. The same-sex marriage debate turned nasty a long time ago. It might also be said that a debate premised on the arbitrary denial of human rights for any group in our society is intrinsically nasty - without going into the invective it creates.
Prime Minister Turnbull says his government - with a majority of one seat in the House of Representatives and less than half the seats in the Senate has a 'mandate' to hold a plebiscite on same-sex marriage - because he took that proposal to the election.
For the House of Representatives, the final two-party preferred result for the 2016 federal election was 50.36% Liberal/National Party Coalition and 49.64% Australian Labor Party. The votes on a two-party preferred basis nationally was 6,818,824 LNP and 6,722,277 ALP. The difference between the two is a wafer thin 0.72% or just 96,547 votes.
In the Senate, the LNP secured 30 of 76 available seats in a full Senate election. This has since been whittled down to 28.
On the numbers, the 'mandate' argument is not made out for three reasons:
1. the government did not obtain a majority in the Senate
2. in the House of Representatives, the difference between the LNP and the ALP is based on a difference of less than 1% - two-party preferred. Presumably, 6,722,277 voters expect to be represented in the parliament
3. matters of human rights must never be subject to majority approval.
In terms of a concrete proposal we have to ask - What did Prime Minister Turnbull 'take to the election'? The 2016 election policies page for the Liberal Party does not refer to same-sex marriage. It did not make it to this summary of the main policies of the parties. On 21 June 2016, just days out from the 2 July election, the Australian newspaper reported that the Prime Minister claimed a mandate for a same-sex marriage plebiscite if the LNP won the election.
However, the wording of the plebiscite was not taken to the electorate. Prime Minister Turnbull said that both 'yes' and 'no' cases would receive funding of some sort. Apart from the actual question to be put what was missing was a clear statement of the consequence of a yes vote.
It emerged that LNP coalition members of parliament would not be bound by the result of the plebiscite (if held) and the text of the amending legislation that would follow a yes vote was not made known. That only happened after the election and the proposed Bill would not simply just undo the damage of the Howard Government but would also significantly erode anti-discrimination protections that are now taken for granted.
An unholy mess
In federal politics two contradictory narratives have come to dominate reactionary discourse concerning religion.
On the one hand, there are those who seek to foment fear and loathing for religions other than those based on Christianity. This is typified by strident calls suggesting that Australia is in danger of being stripped of either Christian or secular values because of the introduction of Sharia law. In 2016, Pauline Hanson marked her return to Parliament by saying saying ‘Now we are in danger of being swamped by Muslims, who bear a culture and ideology that is incompatible with our own.’ Attacks are also made on halal food and religious forms of dress.
On the other hand, it is argued that Christian values underpin all that is good in our society and that these values are under attack from a supposed form of raging extreme secularism. In contrast to these two narratives, it can be seen that fundamentalist Christian conservatism is in fact in the ascendancy and that Australian society is deeply marred as a result. Areas of concern are:
· the school chaplaincy program
· the safe schools program
· disproportionate funding for many religious schools
· continuing threats to, or attacks on the reproductive rights of women
· failure to overturn the 2004 Marriage Act amendments
· public objections to Mosques being built
At the same time, the Royal Commission into Institutional Child Sexual Abuse has only been able to undertake selective studies into allegations of child sexual abuse within numerous religious and non-religious institutions. This work has uncovered monstrously appalling levels of abuse and far worse - neglect, condonation, or cover up by church authorities. In the most perniciously evil instances of the sexual abuse of children within churches we have seen church leaders fail in their legal duty to report abuse, to have facilitated abuse by moving known abusers from one place to another, to have actively undermined victims, and to have used legal processes to deter or silence victims.
This is the context in which the same-sex marriage debate is now taking place in Australia.