There has been a lot of discussion about the political prospects of a gay marriage law being enacted by Australia’s Parliament in the wake of last weekend’s ALP resolution adopting it as policy and allowing MPs a conscience vote. Although a bill recognising gay marriage is still fairly unlikely to pass, it isn’t completely impossible if Tony Abbott also allows Coalition MPs a conscience vote (as former leader Malcolm Turnbull is advocating).
However there’s been much less discussion about whether the Commonwealth even has the constitutional power to legislate for gay marriage. There are doubts about this depending upon one’s favoured approach to constitutional interpretation. In the United States “originalism” is the most widely favoured approach to interpreting the Constitution. although there are more versions of originalism than most people have had hot dinners.
The Commonwealth has constitutional power to make laws with respect to “marriage”. See Constitution s 51(xxi). But what is a “marriage”? Does it include a same-sex union? A polygamous union? A de facto relationship, heterosexual or otherwise? A union between whomever that isn’t for life? It is now clear that “marriage” does not include a de facto relationship. See Russell v Russell (1976) 134 CLR 495. However it does include a union legally terminable after 12 months separation and “irretrievable” breakdown (the latter essentially established by the former).
There’s no doubt what the vast majority of the “Founders” understood when they used the expression. They meant a union for life between a man and a woman. They didn’t mean a union between two blokes or two women. They would have agreed emphatically with Paul Keating’s trenchant observation that “two jokers and a cocker spaniel don’t make a family”. But does that necessarily circumscribe what “marriage” should mean today for constitutional purposes?
In Australia theories of constitutional interpretation tend to generate rather less heat than the US, possibly in part because we don’t have a Bill of Rights where differing interpretative approaches may yield radically differing outcomes on subjects involving deep ideological disagreements.
Interpreting the Constitution
Until 1988, the High Court’s “textualist” approach held that, while some limited historical materials extrinsic to the text (e.g. Quick & Garran; the common law in 1900) could be examined to ascertain the constitutional intent, it was not permissible to look at what the Founding Fathers themselves actually said during the Convention Debates where the Constitution itself was drafted. It was a quest for the “objective” intention. This was similar to the approach taken to ordinary statutory interpretation where, until the 1980s, it was regarded as impermissible to have regard to Hansard even for the purpose of resolving ambiguity. Thus, the prevailing approach was to ascertain intention while wearing a blindfold, rather like the three wise monkeys.
However, despite its self-denying edict, the High Court nevertheless managed to take into account changes in the meaning of words over time in at least some situations.This is because, as McHugh J put it in Re Wakim; Ex parte McNally (1999) 198 CLR 511, most constitutional provisions are expressed at a high level of abstract generality:
“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.”
To achieve some stability and predictability in constitutional interpretation, the High Court has developed a fairly sophisticated doctrine involving distinguishing between the “connotation” of words (their “original” or “essential” meaning, which is “fixed”) and their “denotation” (the contemporary meaning of the word) . The High Court adopts an “ambulatory” approach, considering both the original and contemporary meaning of Constitutional terms. This has allowed the High Court to some extent to shape the operation of the Constitution to fit modern conditions e.g. the Commonwealth’s “posts and telegraphs” power in Constitution s 51(v) has been interpreted as including a power to regulate radio and television, even though they did not exist at the time of Federation. See R v Brislan; Ex parte Williams (1935) 54 CLR 262. Similarly, the High Court has more recently held that Commonwealth legislation regulating patents over genetically modified crops is supported by s 51 (xviii)(copyrights, patents of inventions and designs, and trade marks) although no-one had any idea in 1900 that genetic modification might be possible. See The Grain Pool of WA v Commonwealth (2000) 202 CLR 479.
In a fairly rare unanimous joint judgment in Cole v Whitfield (1988) 165 CLR 360 the Court departed from this somewhat bizarre approach. However, it approved recourse to the Convention Debates (and indeed history in general) only in a particular way (see CLR 385):
“Reference to … history … may be made, not for the purpose of substituting for the meaning of the words used the scope and effect — if such could be established — which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards Federation from which the compact of the Constitution finally emerged.”
US jurisprudential scholar Ronald Dworkin puts it slightly differently but to similar effect in Freedom’s Law ((1996) at 10):
“[C]onstitutional interpretation must begin in what the framers said, and, just as our judgment about what friends and strangers say relies on specific information about them and the context in which they speak, so does our understanding of what the framers said. History is therefore plainly relevant. But only in a particular way. We turn to history to answer the question of what they intended to say, not the different question of what other intentions they had. We have no need to decide what they expected to happen, or hoped would happen, in consequence of their having said what they did, for example; their purpose, in that sense, is not part of our study. That is a crucial distinction”.
The distinction has sometimes been explained by saying that what we are looking for is the Founders’ “enactment” intentions not their “application” intentions. Another way to put it is that we are looking for the meaning the Founders ascribed to the words, but not their hopes and expectations as to what they might achieve. For example, it is clear from reading the Convention Debates that many of the delegates had hopes and expectations that section 51 (xxvi) would achieve the removal from Australia of the Chinese and Kanakas, but this could not be viewed as the meaning of the section (although at least two of the Justices in Kartinyeri v Commonwealth (1998) 195 CLR 337 used those historical facts in concluding that the section authorised legislation which discriminated against aborigines).
An obvious problem with this approach of “semantic originalism” is that it may frequently be effectively impossible to separate the meaning which the Founders believed the words to have from their hopes and expectations of what they would achieve. Although the distinction may sometimes be a useful one, it is in some respects a classic example of what the late Julius Stone referred to as “categories of illusory reference”.
Originalism and the marriage power
The potential problems become immediately evident as soon as one attempts to apply the principles from Cole v Whitfield quoted above to the marriage power in Constitution s 51(xxi). For a start, there simply wasn’t any meaningful discussion of the intended meaning and scope of the marriage power during the Conventions of the 1890s. However in a more general sense, if our task is “identifying the contemporary (i.e. 1890s) meaning of language used”, then one would be hard-pressed to argue persuasively that “marriage” includes gay marriage.
But what about if our task is the second part of the Court’s formulation: “the subject to which that language was directed and the nature and objectives of the movement towards Federation from which the compact of the Constitution finally emerged”? Originalist legal scholar Jeffrey Goldsworthy makes a plausible case in favour of the constitutionality of a gay marriage law:
The purpose of granting power to the Commonwealth Parliament to legislate with respect to marriage was to make possible uniform national regulation of a vitally important legal relationship that underpins family life, child rearing, and therefore social welfare throughout the nation. If current trends towards the recognition of same-sex marriages prove irresistible, confining ‘marriage’ to heterosexual marriage would result in a new legal relationship of a very similar kind having to be governed by disparate State laws rather than uniform national laws. Logically, the meaning of ‘divorce’ in s 51 would be governed by that of ‘marriage’, so that the dissolution of same-sex marriages would also have to be governed by State rather than Commonwealth law. And because it would be possible for same-sex couples to have children, by adoption or artificial fertilisation, their interests would also have to be governed by State rather than Commonwealth law. Family law would be even more fragmented than it is now.
The founders did not anticipate the possibility of same-sex marriage. In that respect, the example raises questions similar to those posed by the invention of air forces long after the creation of the US Constitution. In both cases, the important question is surely not whether the unanticipated phenomenon comes within the precise literal meaning of the word chosen by the founders to give effect to their purpose in allocating legislative power to the national legislature. It is whether the phenomenon comes within that purpose, and is so closely related to the word’s original meaning that it can be included by a simple and obvious expansion of that meaning consistent with contemporary conceptions. In both cases, there is a powerful argument that it does.
On the other hand, Geoffrey Lindell argues that the analogy with whether the air force is encompassed by the defence power (or gene patents by the copyrights etc power) is a dubious one. Lindell is fairly pessimistic about the prospects of the High Court holding in the near future that the marriage power permits regulation of same-sex unions:
What is different about the changes that may have occurred in relation to same-sex marriages is that those changes relate to cultural and social values in contrast to changes which involved scientific developments and inventions. It has been said that the power of the Commonwealth Parliament to legislate with respect to marriage ‘is predicated upon the existence of marriage as a recognizable (although not immutable) institution’. At the time of federation the meaning of the term ‘marriage’ most commonly acknowledged was that contained in the cases which refused to recognise foreign polygamous marriage because such unions did not satisfy the traditional meaning of marriage now explicitly embodied in the Marriage Act 1961 (Cth). Not surprisingly this will make it difficult for the Court to accept that same-sex marriages now come within the meaning of the term ‘marriage’ in s 51(xxi) of the Commonwealth Constitution — a view that has already attracted some judicial support.
Although difficult and probably unlikely at the moment, despite the progressive nature of the principles of constitutional interpretation mentioned above, it is however by no means impossible, given the inherent flexibility of the relevant principles of constitutional interpretation.
Can the Commonwealth regulate gay “marriage”?
Your guess is as good as mine, Goldsworthy’s or Lindell’s. However I’m certainly not as pessimistic as Lindell. There is clearly a respectable path of constitutional reasoning that would allow the High Court to take a broader view of the marriage power if it so chose. Moreover such an approach would be consistent with the Court’s long-term tendency to interpret Commonwealth legislative powers broadly. The legislative fragmentation to which Goldsworthy points (given that the States can and have legislated to allow same-sex couples access to adoption and IVF) is also a potentially persuasive factor from the viewpoint of a constitutional pragmatist. I can’t see any current Justice other than Heydon J (and perhaps Crennan J) who would be extremely unlikely to favour a liberal interpretation of the marriage power. With a fairly strong majority of Australians favouring gay marriage (although it’s a tad weaker among religious people) and one of our two major parties adopting it as formal policy, one can plausibly argue that the constitutional “denotation” of “marriage” has decisively evolved to encompass same-sex unions.