High Court of Australia

Personal and geographic perspectives of the Same Sex Marriage Case

I want to share with you some of my personal reflections on marriage that must have been stored away in some section of my mind for years but that have only really taken shape since the prospect of an Australian legal change concerning the solemnisation of same sex marriages was seriously raised.

Some of you will know that I am deviating from my usual area of research and legal expertise. I am a geographer and an environmental and planning lawyer, not a queer scholar, afterall.

Still, this work is very much geographically influenced – in terms of my reference to place and my methodological inquiry. I use an auto-ethnographical method and style of writing and I employ socio-legal and anthropological ideas about legal consciousness – how I understand and what I expect of the law.

Moreover, as most of you who have read the High Court’s decision from December 2013[1] know, the central legal issue before the court was one of statutory interpretation – and the process of interpretation taken by the High Court and the effect of its judgment can be analysed through a critical geographical lens.

My perspectives on same sex marriage are bookended by legal events in one place – Canberra. In 2008 when working at the ANU, I was ambivalent and agnostic about marriage even though the Civil Partnership Act 2008 (ACT) had permitted civil partnerships between two people irrespective of their sex. However, by the end of 2013, especially as I watched closely the to-ings and fro-ings between the Commonwealth and the ACT in the aftermath of the passage of the ACT’s Marriage Equality (Same Sex) Act 2013 (ACT) I had become immersed in the issue.

By the time the court was deliberating about whether to uphold or find invalid the ACT law, I could only see success for the ACT Government and was awaiting confirmation that same sex marriages could occur under law within Australia.

Despite watching the court case closely, I was doing so out of context. My mind, impressions and expectations, what I had thought the law would achieve, how I thought the judges would prioritise values – in sum, my legal consciousness – was coloured and blurred by what I had read and learned when I was living in another place, in a different legal geography – the United States.

In the 18 months I spent in California on-and-off until January 2013 I learned that same sex marriage was a battleground issue, and had me thinking that it would be an issue argued in the courts of Australia before too long.

In California I read and relished the decision of the primary court in the case brought to overturn Proposition 8 – the 2008 constitutional amendment that banned same sex marriages in that state and in doing so creating a sexual citizenry that no longer belonged in-state.[2] Chief Judge Walker of the US District Court in the 2010 case of Perry v Schwarzenegger[3] that was brought by supporters of same sex marriage offered what our High Court could not provide in the Same Sex Marriage case as a consequence of the parties – the Commonwealth Government and the ACT Government – not pursuing a debate on the facts.[4] He offered a thorough, evidence-based exposition of marriage and same sex attraction and provided judicial confirmation that a civil partnership scheme for same sex attracted people was not the same legally or socially as marriage.

Chief Judge Walker also confronted the hurtful arguments of those who opposed same sex marriage. He rejected the claims of opponents that children were at risk from same sex marriage, that homosexuality was not normal, and that the central purpose of marriage was procreation and the raising of children.[5] He commented that some of these arguments had parallels with hateful and discriminatory views expressed about homosexuality in the 1970s.[6] The judge concluded that ‘conjecture, speculation and fears are not enough … [s]till less will the moral disapprobation of a group or class of citizens suffice’[7] to deny members of the community equal treatment.[8] The judge would not find constitutional what geographers and sociologists Phil Hubbard and Rachela Colosi might describe a law for the regulation of morality.[9]

The evidence that the opponents provided was unreliable.[10] So instead, the court relied particularly on the expert historical analysis of Professor Nancy Cott. Her testimony awakened me to the possibility and appropriateness of same sex marriage. It ceased to seem unreal, and to me it became unchallengeable. On reflection it was reading the parts of the judgment that relied on Cott’s evidence that caused me to be open to the possibility of marriage for myself. It was as though I was being spoken to directly when I read Chief Judge Walker’s words about the manifold benefits of marriage[11] and its long social and political significance,[12] about how although it was once an institution of repression and exclusion,[13] it is now one of love, intimacy and stability.[14] Same sex marriages, Chief Judge Walker confirmed, would not affect the institution of marriage or any marriages of opposite sex couples.

With all this background I let myself assume that the High Court would uphold the ACT law. However, I did so ignoring what I had learnt about the court during 2013. The court proved itself to be cautious and very conventional in its analysis in many of its judgments in 2013. In the people smugglers mandatory minimum sentence case, Magaming v R,[15] and the Palm Island alcohol ban case, Maloney v R,[16] the High Court steered a restricted path in the way it interpreted legal documents and in avoiding social change. Like in the Same Sex Marriage case, in Maloney the court entrenched discrimination by the government because the law facilitated it, rather than railing against it.

Significantly, the current court has adopted a narrow and fatalistic approach to statutory interpretation. Ultimately, the Same Sex Marriage case was decided using statutory interpretation principles. Like the second case decided in 2013, Commissioner of Police v Eaton,[17] Gageler J, who had years earlier given the ACT advice about the legal possibility of a ACT-sanctioned same sex unions[18] and did not sit in the Same Sex Marriage case, found himself discordant with the rest of the court. In Eaton I had noted[19] that while Gageler J looked for comparability as a starting point when interpreting statutes, the rest of the court looked for inconsistency in the first instance.

The court in the Same Sex Marriage case even began its analysis with a statement of incompatibility, despite section 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) appearing to require the court to contemplate the possibility of concurrency.[20] Before beginning its detailed analysis the court plainly declared that: ‘The ACT Act is not capable of operating concurrently with the Marriage Act to any extent’.[21]

The High Court judges sought and found in the 2004 amendments made to the Marriage Act 1961 (Cth) an ‘implicit negative proposition that the kind of marriage provided for by the [Marriage Act 1961 (Cth)] is the only kind of marriage that may be formed or recognised in Australia’.[22] In this respect they seemed to rely on a provision[23] that prevented same sex marriages solemnised overseas from being recognised as marriages in Australia.[24] That is, they went searching for bars or prohibitions rather than looking for opportunities for comparability. I was surprised by the choices made by the judges. Their judgment reflected a view of the law that was as subjective and idiosyncratic as my own interpretation. However, I wondered whether the judges understood how they must have affected all of the same sex attracted people who were awaiting their word. Moreover, the court argued that ‘[g]iving effect to [the] provisions of the ACT Act would alter, impair or detract from the Marriage Act’.[25] I read those words of the judges and thought of those spurious arguments, rejected in Perry v Schwarzenegger,[26] that same sex marriage would somehow undermine the marriages of others or the institution of marriage altogether. I felt out of place in Australia. My views, my beliefs, my understanding of the law belonged elsewhere.

In January 2014, just weeks after the High Court decision, I met Professor Phil Hubbard at a legal geography workshop. I had read a bundle of his recent articles,[27] which offer a critical geographical analysis of the regulation of same sex attraction and I began to see how a geographer should and would critique the judgment. The court defined a contemporary ‘domain of juristic classification’[28] for marriage as being no broader than the Marriage Act 1961 (Cth). Although the High Court’s use of terms like ‘domain’ and ‘classification’ was unlikely to have been intended to call on the geographic connotations of those terms, the effect of the High Court’s judgment is ripe for critical geographical analysis. Using Hubbard’s work it can be argued that what the court did was to create a landscape of marriage that reflected its own ontology,[29] confined and fenced, separate, even though the Commonwealth had not explicitly done so.[30] It had entrenched scales of sexual citizenships, forcing same sex attracted people out of public view, out of the space where the public celebration and affirmation of love occurs.[31]

I was on the other side of the fence; out of public view. I didn’t want to be there. That is why I am speaking up and sharing my perspectives.


 

This is an edited version of a speech given at The Law and Diversity Panel Discussion Series: LGBTQI Issues in the Law hosted by the Melbourne Law Students Society on 20 May 2014. For a more detailed perspective on the High Court’s decision and my reflections see my recently published article in the Alternative Law Journal.[32] I am currently writing a critical legal geography analysis with Clare McIlwraith on another 2013 High Court decision: Comcare v PVYW.[33]

© Brad Jessup 2014

  1. (2013) 304 ALR 204 (‘Same Sex Marriage case’). []
  2. Phil Hubbard, ‘Kissing is not a Universal Right: Sexuality, Law and the Scales of Citizenship’ (2013) 49 Geoforum 224. []
  3. 704 F Supp 2d 921 (United States District Court, ND California, 2010) (‘Perry v Schwarzenegger’). This case was ultimately considered in part in Hollingsworth v Perry,133 S Ct 2652 (United States Supreme Court, 2013). []
  4. Noted in Transcript of Proceedings, The Commonwealth of Australia v The Australian Capital Territory [2013] HCATrans 262 (4 November 2013) lines 15 and 30. []
  5. Perry v Schwarzenegger 930, 931. []
  6. Ibid. []
  7. Ibid 938, 1002-1003. []
  8. Ibid 973-991. []
  9. Phil Hubbard, ‘Sex, Crime and the City: Municipal Law and the Regulation of Sexual Entertainment’ (22) Social & Legal Studies 67, 68. []
  10. Perry v Schwarzenegger934. []
  11. Ibid 991-962, 969. []
  12. Ibid 992-993. []
  13. Ibid 957-959. []
  14. Ibid 961, 970. []
  15. (2013) 302 ALR 461. []
  16. (2013) 298 ALR 308. []
  17. (2013) 294 ALR 608. []
  18. D F Jackson QC and S J Gageler SC, ‘Joint Opinion – Re: Civil Partnerships Bill 2006 (ACT) Ex Parte: Australian Capital Territory’ (5 May 2008) (‘Jackson and Gageler Joint Opinion’). []
  19. Brad Jessup, ‘Interpreting the Power to Sack Probationary Employees and the Right to a Fair Dismissal: Commissioner of Police v Eaton’ on Opinions on High (15 March 2013)  []
  20. The court disagreed with this position. See Same Sex Marriage case [54]. []
  21. Ibid [55]. []
  22. Ibid [59]. []
  23. Marriage Act 1961 (Cth) s 88EA. []
  24. Same Sex Marriage case [58]. []
  25. Ibid [59]. []
  26. Perry v Schwarzenegger 931, 949, 998. []
  27. Hubbard, above n 2; Phil Hubbard, Roger Matthews and Jane Scoular, ‘Legal Geographies: Controlling Sexually Oriented Businesses: Law, Licensing, and the Geographies of a Controversial Land Use’ (2009) 30 Urban Geography 185; Hubbard and Colosi, above n 9; Phil Hubbard, ‘Thinking Spaces, Differently?’ (2012) 2 Dialogues in Human Geography 23. []
  28. Same Sex Marriage case [60]. []
  29. Hubbard (2012), above n 27, 24. []
  30. Same Sex Marriage case [58]. []
  31. Hubbard, above n 2. []
  32. Brad Jessup, ‘The Court Hurts: A Personal Reflection on Commonwealth v ACT (Same Sex Marriage case)’ (2014) 39 Alternative Law Journal 45. []
  33. (2013) 303 ALR 1. []

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