A pungent graveyard odour emanates from the government’s case against the ACT over their Marriage Equality legislation.
The documents were posted today on the High Court website, written in such arcane language that to read them is to be transported to a dark Dickensian courtroom, where Justice Lady Havisham, in tattered silk and moulting horsehair, presides from behind a mouldering wedding cake, while rats play at her feet and gnaw the leather from her shoes.
The notion of marriage equality is novel, modern, new. As if to press this upstart notion to death with the sheer weight of history, the government lawyers summon up the past. From Justinian and Modestinus, via Henry VIII and Lord Hardwicke, they lead us via a morass of footnotes to the dreadful state of affairs in 19th century America:
“Beginning in 1884 numerous proposals to amend the US Constitution to confer power on the federal legislature to make laws with respect to marriage and divorce were introduced into Congress but failed to progress.
Delegates to the Sydney Constitutional Convention in 1897 regarded the American position with horror describing it as ‘[a] scandal’ and observing that: “unless we wish to repeat in these communities the condition of things which has obtained in America, it is necessary to provide for uniformity in the law of divorce …”
I won’t bore you with the yards of mouldy legal fustian which now unfurl, but finally, on page twelve, we get to the nitty-gritty, in which we hear another ghost of the past. The lofty, arrogant, dismissive, sneering tones of the christian lobby and their tame Howard ministers rises again from the grave..
“The Marriage Act is thus an expression by the Parliament that, within the field of its sovereignty, the binary division in status between married and unmarried will be demarcated by the terms of that Act. It leaves no room for there to be any other laws in Australia which purport to clothe a union with the legal status of marriage (or a form of marriage). It does not matter whether that other law or 10 laws purports to mimic identically the essential and formal requirements of the Marriage Act, or to mimic it in some parts while varying it in other parts. The Act simply does not permit of the possibility that there will be in addition to the status of ‘married’ and its converse ‘unmarried’, one or more variations on a theme: ‘married through the eyes of the law of X State’ or ‘married through the eyes of Y Territory’ or ‘married through the eyes of Z religion’.”
So there you have it.
Thus the government angrily denies they are on ‘the wrong side of history’. History, they seem to say, is on OUR side. Since the Roman Empire marriage has always been the business of the central authorty, not those pesky provinces, and what’s more, it has always been between one man and one woman. And ever more shall be so.
The only remaining question is, on which side do the judges stand?