When the framers of our Constitution mentioned marriage, they had a heterosexual relationship in mind - and a heterosexual relationship only. Everyone did when they thought of 'marriage', that early in the 1900s.
So when the Constitution gave powers to the Parliament to make laws with respect to marriage (PART V. 51. [xxi]), it meant with respect to a heterosexual relationship. That was their original intent.
For Parliament today to make laws subject to a different meaning of marriage, instead of subject to the meaning which the framers of the Constitution originally intended, would therefore be outside the powers given to Parliament by the Constitution.
It would be to impose a different meaning onto the Constitution than its framers originally intended. In other words, it would mean a change to the Constitution.
The meaning of the institution of marriage was more timeless than the definitions of any other words in the Constitution, when the Constitution was passed in 1901. If Parliament can make laws subject to a different meaning of marriage to the meaning originally intended in the Constitution, then no word or concept in the Constitution is safe.
The only way to change the Constitution, is not by a mere voluntary survey by the Bureau of Statistics, but by a Referendum, with compulsory voting, administrated by the Electoral Commission, and a double majority must vote in favour (a popular majority nationwide, plus a majority of States), plus royal assent must be given by the Governor General.
Parliament also only has powers to make laws with respect to marriage, 'for the peace, order, and good government of the Commonwealth'. Would it really be for the 'peace, order and good' of the Commonwealth - that is, of all citizens, not just of a minority group within the Commonwealth - to change the meaning of the institution of marriage to anything other than its meaning in the Constitution?
Up until 2004, no definition was given for the meaning of marriage in the Marriage Act 1961 - because the meaning intended for marriage when the Constitution gave power to the Parliament to make laws with respect to marriage was never disputed.
In 2004 the Marriage Act was amended to include for the first time the definition of marriage, as: 'the union of a man and a woman to the exclusion of all others, voluntarily entered into for life'. This Amendment was not to say that Parliament has power to define marriage differently to its intended meaning in the Constitution - it was to affirm the meaning intended in the Constitution.
When the High Court overturned same-sex marriage in the Australian Capital Territory as unconstitutional, it was due to the Parliament having powers to define marriage according to the intended meaning for marriage in the Constitution.
In that case the High Court ruled that the intended meaning in the Constitution can be broader than the definition given to date by Parliament in the Amendment to the Marriage Act (for example, that it could include polygamy, not just monogamy), but I would argue that it can't mean anything other than a heterosexual relationship, without first changing the Constitution.
The High Court said that since the meaning of the Constitution can change fluidly with the times, it can extend to include same-sex marriage. But that's not incontestable, because that's a matter of competing doctrines of Constitutional interpretation (a 'living tree' type doctrine of interpretation versus the 'original intent' doctrine). There could be grounds for an appeal, on that basis.
So in the event that Parliament seeks to make laws subject to a non hetero-sexual meaning of marriage, and not for the good of all citizens of the Commonwealth, could another appeal to the High Court be in order?
So when the Constitution gave powers to the Parliament to make laws with respect to marriage (PART V. 51. [xxi]), it meant with respect to a heterosexual relationship. That was their original intent.
For Parliament today to make laws subject to a different meaning of marriage, instead of subject to the meaning which the framers of the Constitution originally intended, would therefore be outside the powers given to Parliament by the Constitution.
It would be to impose a different meaning onto the Constitution than its framers originally intended. In other words, it would mean a change to the Constitution.
The meaning of the institution of marriage was more timeless than the definitions of any other words in the Constitution, when the Constitution was passed in 1901. If Parliament can make laws subject to a different meaning of marriage to the meaning originally intended in the Constitution, then no word or concept in the Constitution is safe.
The only way to change the Constitution, is not by a mere voluntary survey by the Bureau of Statistics, but by a Referendum, with compulsory voting, administrated by the Electoral Commission, and a double majority must vote in favour (a popular majority nationwide, plus a majority of States), plus royal assent must be given by the Governor General.
Parliament also only has powers to make laws with respect to marriage, 'for the peace, order, and good government of the Commonwealth'. Would it really be for the 'peace, order and good' of the Commonwealth - that is, of all citizens, not just of a minority group within the Commonwealth - to change the meaning of the institution of marriage to anything other than its meaning in the Constitution?
Up until 2004, no definition was given for the meaning of marriage in the Marriage Act 1961 - because the meaning intended for marriage when the Constitution gave power to the Parliament to make laws with respect to marriage was never disputed.
In 2004 the Marriage Act was amended to include for the first time the definition of marriage, as: 'the union of a man and a woman to the exclusion of all others, voluntarily entered into for life'. This Amendment was not to say that Parliament has power to define marriage differently to its intended meaning in the Constitution - it was to affirm the meaning intended in the Constitution.
When the High Court overturned same-sex marriage in the Australian Capital Territory as unconstitutional, it was due to the Parliament having powers to define marriage according to the intended meaning for marriage in the Constitution.
In that case the High Court ruled that the intended meaning in the Constitution can be broader than the definition given to date by Parliament in the Amendment to the Marriage Act (for example, that it could include polygamy, not just monogamy), but I would argue that it can't mean anything other than a heterosexual relationship, without first changing the Constitution.
The High Court said that since the meaning of the Constitution can change fluidly with the times, it can extend to include same-sex marriage. But that's not incontestable, because that's a matter of competing doctrines of Constitutional interpretation (a 'living tree' type doctrine of interpretation versus the 'original intent' doctrine). There could be grounds for an appeal, on that basis.
So in the event that Parliament seeks to make laws subject to a non hetero-sexual meaning of marriage, and not for the good of all citizens of the Commonwealth, could another appeal to the High Court be in order?
No comments:
Post a Comment