The right to gay marriage

The Californian Supreme Court, in a 4-3 decision, has ruled that mere equality of legal rights for same-sex partners and married people isn’t sufficient; marriage must be equally available to gay and straight. Although it’ll be reported world-wide as a momentous event, it is just the latest of several courts to reach a similar conclusion, including the Constitutional Court of South Africa, various Canadian provincial courts and the top court of Massacussets. These decisions are automatically relevant to the interpretation of all Victorian legislation, including the Charter itself, under Charter s. 32(2):

32(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

But there are some obvious caveats. First, the section says ‘may’, not must. Second, there are a number of other court decisions – notably in other US states – that followed the minority ‘separate but equal’ approach.

Third, the rights in the Charter are not the same as the rights in these other jurisdictions’ constitutions. Notably, the drafters of the Charter, in including a right to the protection of the family, deliberately left out the right to found a family. They cited the Commonwealth’s responsibility for marriage, but really this was a transparent attempt to dodge the vexed issue of gay adoption. Nevertheless, there is still a right to non-discrimination on the basis of sexuality and marital status in Charters ss. 8(2) and 8(3).

Finally, the overseas jurisdictions differ from Victoria in a crucial respect: Victoria’s ability to provide for gay marriage. It’s wrong to say that Victoria has no power on this issue. To the contrary, marriage used to be governed by Victorian law. The problem is rather that the Commonwealth has legislated on this topic and, at least arguably, Victorian statutes would be rendered inoperative because of s. 109 of the Constitution. Note, however, that this still isn’t a question of the validity of Victoria’s statutes. Indeed, any statute passed in Victoria permitting gay marriage would instantly become operative if the Commonwealth changed its statute.

Rather, the real significance of all these overseas decisions – including the ones rejecting a right to gay marriage  – is their almost unanimous view that same-sex relationships must have the same legal consequences and protections as marriages. Such laws are (almost) certainly with Victoria’s ability to enact. SARC discussed this issue at length in its report on the Relationships Bill, blogged on  here and here.

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