Mr Abbott and the Culture Wars I: Marriage equality

Abbott and HowardThe ACT government has introduced legislation into the territory’s Assembly to provide for same sex marriage. Unsurprisingly, when not distracted by plans to Defend Freedom and re-introduce the title of QC, Attorney-General George Brandis QC has been asked by Tony Abbott to look into the constitutionality of this bill, presumably with an eye to annulling it. Since legislation was enacted in 2011, any overturning of ACT law would take a vote of both Houses of the Commonwealth Parliament. Meanwhile, the Australian Christian Lobby is insisting that voters don’t want marriage equality prioritised.

Well, parliaments can walk and chew gum at the time, I always think. The interesting thing about the marriage equality movement is that it’s largely led from civil society. John Howard probably kicked it off (ironically) by amending the Marriage Act in 2004. A few too many people might have heard celebrants intone “marriage is between a man and a woman” (as required by law) at a few too many marriage ceremonies. Wedges are capable of turning. Proverbially, most pollies don’t want to touch “social issues” with a bargepole. Support can be diffuse, but opposition is often strong and concentrated.

Social media campaigns for marriage equality are not going away anytime soon, though.

Of course, some Labor MPs who have been vocal in support of same sex equality have increased their margins. Graham Perett for one. And some Liberal MPs, Teresa Gambaro for one, shifted their position on same sex marriage during the election campaign in the face of significant pressure. Other Liberal MPs have made promises to “raise the issue in the party room”.

No doubt Mr Abbott has no intention of allowing a bill to be brought before the House. But ACT or no ACT, he cannot control the Senate.

There’s been some acute analysis of Tony’s cabinet making (see Tim Dunlop and Andrew Elder). I think his assumption of the portfolio of Minister for Women’s Affairs (what happened to “the status of women”?) is both deliberate and reflects his real ignorance of how much has shifted so quickly since the Howard Years. The same goes for the Consecration of the Bishops.

He wants to both dog whistle and marginalise. (But see Andie Fox for a different view on his ministerial arrangements.)

What happens if you want to fight a Culture War and the culture has changed on you?


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20 responses to “Mr Abbott and the Culture Wars I: Marriage equality”

  1. paul burns

    Since sex is an integral part of marriage if those people out there who think of sex as a sin just thought of it as something you do for fun or to express shared love, most of this same sex marriage debate would just fizzle out and people could go off and get married without any further ado, regardless of gender.
    Tony Abbott presumably shares Australian democratic values. If so, surely he believes all Australians are equal (despite the mounting evidence that he might believe some are more equal than others.) If all Australians are equal it follows that any Australian over the age of 18, so long as they’re not already married, can marry any consenting adult they want to.
    But thinking that way would probably make his head hurt.

  2. Hoa Minh Truong

    The private life to be respected as the law and constitution, so the same sex relationship is the individual matter, not for public concern. However the same sex marriage has been raising into public and spreading world wide as movement and affecting into the politic arena, whether the law approval or not, the couples of same sex live together.
    Because it becomes the movement, so some politicians, party want to gain the vote from the same sex people, then they take the private life into the parliament house to debate. Therefore, when the politicians taken the privacy into public, why doesn’t the civilian rights organizations have no react?.

  3. Andrew Reynolds

    Mark,
    I would be interested to see what happens if this comes before the Senate. The ALP is likely to be bound by a caucus vote and this is unlikely to be a simple, overwhelming “yes” for the ACT government’s stance – particularly given Paul Howes’ reasons for not contesting the (almost certainly to be) vacant Senate seat in NSW. The opposition of the WA delegation for any would also be likely, as the Shoppies and the MUA largely control the WA branch. I think it is an issue that would spill out of the caucus room whatever way it went – a difficult one for a new leader trying to put the disunity of the Rudd / Gillard era behind them.
    I think the ALP would be more than happy to not see this brought up – it is a good wedge issue for Abbott if it is.

  4. Ronson Dalby

    Andrew,

    The new leader should insist on the normal binding vote for ALP members as marriage equality is part of the national party platform.

    The conscience vote was only a sweetener for Gillard to save her embarrassment because of her illogical (and Joe de Bryun’s) stance on the issue.

  5. Chris

    . Meanwhile, the Australian Christian Lobby is insisting that voters don’t want marriage equality prioritised.

    Heh, in that case the Senate shouldn’t waste its time trying to overturn the ACT laws 🙂

  6. Sam

    Ronson Dalby 4

    Albo said yesterday that he favours a conscience vote.

  7. Tim Macknay
  8. Nickws

    The High Court would just void any ACT marriage law, in the event the Coalition were unable to get the numbers in the senate for override. The writing in the constitution is infuriatingly clear—federal control of marriage and divorce laws.

    What happens if you want to fight a Culture War and the culture has changed on you?

    Andrew Bolt of all people was floating this a couple of weeks ago:

    The best hope for gay marriage is in fact Tony Abbott.

    This is not just because Rudd seems an opportunist, and used the issue not to persuade but to divide.

    The truth is that only a leader of those most opposed to an emotive and often threatening change can hope to convince and reassure them. That is, if you wisely believe a fundamentally divisive change is best achieved by persuading, not imposing.

    Nixon went to China. Sharon withdrew from Gaza. Same-sex marriage, if it is to come, would be best brought in by a conservative.

    I’d be gobsmacked by this, if not for the fact (a.) Bolt is making this argument in his typical zero sum, politics-of-smear-and-jeer-any-nonTory manner, and (b.) sadly, the underlying principle at work here isn’t social progress per se, but most likely upper middle class acceptance of equality for a group they’ve come to realise are ones of us. Thus the marriage equality process is quarantined from any other attempt to reach out & correct institutional wrongs suffered by other groups (for instance, reconciliation, Queensland teens busted for ordering abortificants thru the mail, suchlike).

    Andrew Reynolds @ 3

    The opposition of the WA delegation for any would also be likely, as the Shoppies and the MUA largely control the WA branch.

    Almost OT (though not, I argue) but I hadn’t seen the anti-union talking point about teh-Wharfies-stacking-WA used in this manner, i.e. to accuse them of being part of Labor’s own internal culture warrior push.

  9. Andrew Reynolds

    Nickws – I didn’t argue it is part of any culture warrior push, but I just think it may be a side result.

    Ronson,
    A new leader might not want to push themselves on an area they know will cause internal disaffection. Using political capital (I term I don’t like, but a viable one here) on this issue early on will just create a core of opposition. Much safer early on to keep your head below the parapet and try to build consensus. Use the capital later when it is over a fight that matters – i.e. for the Party leadership.

  10. JKUU

    Yes, Mr. Abbott has two choices in attempting to overturn any ACT legislation allowing same-sex marriage. The first, as already pointed out, is to have both the House and Senate both vote to overturn any such law. This is a gamble, as many commenters have explained, owing to the composition of the present Senate and the incoming Senate of next July. A defeat would be embarrassing for the new government.

    The second way is to challenge an ACT same-sex marriage law on constitutional grounds in the High Court. As Nickws and others have said, the Australian Constitution empowers the Federal government to make laws regarding “marriage” (s51xxi) – which it did in 1961, and “divorce” (s51xxii) – which I believe it hasn’t yet done. Previously, and for the first 60 years following federation, marriage came under state and territorial jurisdiction. Even today, marriage laws may be made by states or territories, so long as these do not conflict with federal law, which takes precedence (s109).

    In 2004, the Howard government enacted an amendment to the Marriage Act 1961 to place a barrier to same-sex marriage.The Marriage Legislation Amendment Act 2004 inserted a definition into the Act that reads: “Marriage, means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” The definition was aimed at closing any loophole that the original Act had in regard to allowing same-sex marriages – a loophole that could be exploited by state or territory marriage laws. Because federal law now defines “marriage” in s51(xxi) of the constitution to mean heterosexual unions, some have argued that the states and territories may still have a residual power in relation to same-sex unions. It seems, however, that the anticipated ACT law will have to be carefully crafted and worded to avoid invalidation on constitutional grounds.

    As a dual citizen, I am interested in the constitutional differences regarding marriage in the US and Australia, and the consequences for same sex couples. In contrast to Australia, “marriage” is nowhere mentioned in the US Constitution. Civil marriage in the US is governed by state law. Traditionally, a marriage is considered valid if the requirements of the marriage law of the state where the marriage took place are fulfilled.

    In 1996, as a reaction to a Hawaiian state court overturning prohibition of same-sex marriage as a violation of equal protection clause in the State’s constitution, the US Congress passed the Defense of Marriage Act (DOMA), section 3 of which defined marriage as a legal union of one man and one woman for the purpose of interpreting federal law. Under DOMA section 3, the federal government did not recognize same-sex marriages, even if those unions were recognized by state law. This had deleterious consequences which, for example prevented legally married same-sex couples from jointly filing federal income tax returns even if they filed joint state income tax returns. Basically because the Federal government lacked authority under the constitution to make marriage laws, DOMA section 3 was finally struck down by the U.S. Supreme Court on June 26, 2013.

    It is interesting what the presence of absence of the word “marriage” in the legislative powers enumerated in the two constitutions makes for the possibility of same-sex marriages in Australia and the US. At present, about 13 US states have legalized same-sex marriage, or have legislation to do so pending. It is clear that in Australia, same-sex couples have a far harder road to travel.

  11. desipis

    Because federal law now defines “marriage” in s51(xxi) of the constitution to mean heterosexual unions, some have argued that the states and territories may still have a residual power in relation to same-sex unions.

    Does it do that? The term “marriage” is defined in an “interpretation” section. That means the definition is limited to defining the word in the scope of interpreting that piece of legislation. Obviously it’s open to the court to extend that definition to a broader context, but it’s not clear it would do so.

    Further, if you compare the way the legislation treats state/territory marriage legislation, with the way it treats foreign marriages, it would suggest a legal loophole for state/territory same-sex marriage legislation.

    I think it’ll come down to the politics of the senate and which major parties allow a conscience vote.

  12. Gummo Trotsky

    According to Andy Bolt’s blog the first topic he’ll be covering on “(Andy’s Point of View” on Sunday is ‘Tony Abbott declares a culture war’. For once, I might watch the bugger to see if he’s actually going to endorse the declaration of war.

    What happens if you want to fight a Culture War and the culture has changed on you?

    I doubt that either Abbott or his supporters (like Bolt) will ever admit defeat or even give up in exhaustion. The best you can hope for is that they’ll retreat into a bunker mentality while the rest of us get on with finally enjoying the freedom to ignore them (added as post-hoc attempt to drag comment back on topic after first para).

  13. Gummo Trotsky

    the Australian Constitution empowers the Federal government to make laws regarding “marriage” (s51xxi) – which it did in 1961, and “divorce” (s51xxii) – which I believe it hasn’t yet done.

    Family Law Act 1975 (Cth).

  14. Gummo Trotsky

    Here’s an underhanded way that Tony Abbott might scupper gay marriage – amend the Family Law Act to exclude marriages under State and Territory Marriage Acts from the jurisdiction of the Family Court of Australia. Might cause a constitutional ruckus and right now I don’t have either the legal knowledge or the time to examine whether it’s feasible.

  15. Anna Winter

    The opposition of the WA delegation for any would also be likely, as the Shoppies and the MUA largely control the WA branch.

    Um, nope.

    The WA branch is largely controlled by an alliance between the Shoppies and United Voice( Missos).

    The MUA has recently launched a massive membership drive, which may change this in the future, but they don’t have any MUA-aligned MPs at all.

  16. Aussiesmurf

    @gummo

    Wouldn’t make a big difference. The FLA provisions concerning de facto relationships would come into play, and they are worded identically in terms of financial matters to the ‘marriage’ sections.

  17. Andrew Reynolds

    Anna – I stand corrected, but I don’t think it changes my point.

  18. Gummo Trotsky

    Aussiesmurf @16:

    So no significant legal effect but as a political sop to the Australian Christian Lobby &c…

  19. Anna Winter

    Andrew, in what way does your point stand aside from that pretty fundamental fact?

    WA has three lower house MPs: Gary Gray and Melissa Parke voted in favour last time, and Alannah MacTiernan is on record being in favour. So that’s three for three.

    In the Senate, before June 30, Glenn Sterle and Mark Bishop will vote against, Louise Pratt and Sue Lines will vote for. After June 30, Sterle and Joe Bullock will vote no, and Sue Lines will still be in favour.

    So, a majority of the WA delegation are in favour.

    I’m not sure you understand what it means for a union to ‘control’ an entire state’s branch, but MPs don’t generally vote according which union is currently in the majority, they vote with the union that brought them. Until the MUA gets its own MPs in parliament, they don’t control anything.

  20. Anna Winter

    Also, the MUA’s candidate for federal election was in favour of marriage equality, so I’m not even sure what evidence you’re using to argue the MUA will follow the SDA line on that.