Some points of interests in the High Court's December 12, 2013 Gay Marriage judgment

The following bullet points contain quotations, followed by their respective paragraph numbers, from the text of the High Court of Australia's Reasons for Judgment, on December 12, 2013, in the case of the Commonwealth of Australia v. the Australian Capital Territory 2013 (HCA 55):

http://www.austlii.edu.au/au/cases/cth/HCA/2013/55.html

All bold, italics, parentheses, and hyperlinks are as in the original.

• This Court must decide whether s 51(xxi) permits the federal Parliament to make a law with respect to same sex marriage because the ACT Act would probably operate concurrently with the Marriage Act if the federal Parliament had no power to make a national law[5] providing for same sex marriage. If the federal Parliament did not have power to make a national law with respect to same sex marriage, the ACT Act would provide for a kind of union which the federal Parliament could not legislate to establish. By contrast, if the federal Parliament can make a national law providing for same sex marriage, and has provided that the only form of marriage shall be between a man and a woman, the two laws cannot operate concurrently.
  9

• Because the status, the rights and obligations which attach to the status and the social institution reflected in the status are not, and never have been, immutable, there is no warrant for reading the legislative power given by s 51(xxi) as tied to the state of the law with respect to marriage at federation. Tying the ambit of the head of power to the then state of the law would fail to recognise that, as Higgins J said[26] in Attorney-General for NSW v Brewery Employés Union of NSW ("the Union Label Case"), it is necessary to construe the Constitution remembering that "it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be". Not only that, it would fail to recognise that, as Windeyer J demonstrated[27] in the Marriage Act Case, "[m]arriage can have a wider meaning for law" than the meaning given in Hyde v Hyde. The definition in Hyde v Hyde was proffered[28] as a statement of "essential elements and invariable features" in answer to the question "What, then, is the nature of this institution as understood in Christendom?" The answer to that question cannot be the answer to the question "What is the nature of the subject matter of the marriage power in the Australian Constitution?"
  19

• the definitions of marriage given in Hyde v Hyde and similar nineteenth century cases governed what kinds of marriage contracted in a foreign jurisdiction would be treated as yielding the same or similar rights and consequences as a marriage contracted in England in accordance with English law. They were cases which necessarily accepted that there could be other kinds of relationship which could properly be described as "marriage" and the cases sought to deal with that observation by confining the kinds of marriage which would be recognised in English law to those which closely approximated a marriage contracted in England under English law.
  28

• statements made in cases like Hyde v Hyde, suggesting that a potentially polygamous marriage could never be recognised in English law, were later qualified by both judge-made law and statute to the point where in both England and Australia the law now recognises polygamous marriages for many purposes[46].
  Once it is accepted that "marriage" can include polygamous marriages, it becomes evident that the juristic concept of "marriage" cannot be confined to a union having the characteristics described in Hyde v Hyde and other nineteenth century cases. Rather, "marriage" is to be understood in s 51(xxi) of the Constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.
  32 and 33
  

• When used in s 51(xxi), "marriage" is a term which includes a marriage between persons of the same sex.
  38

• contrary to the submissions of the Territory, the topic within which the status falls must be identified by reference to the legal content and consequences of the status, not merely the description given to it.
  60

Reginaldvs Cantvar
17.XII.2013