Australia is about to descend into the abyss of the same-sex marriage debate. Bypassing the voters, the self-governing Australian Capitol Territory (ACT) has enacted a law that permits same-sex marriage. The federal government will seek for that law to be overturned and force the ACT to comply with section 51 (xxi) of Australia’s constitution, which defines marriage as between one man and one woman.
The federal government could simply override it as the Howard government did to the Northern Territory when it enacted a law permitting euthanasia in 1996. Taking it to the court would place a political and social matter in the hands of seven “unelected and life-tenured committee of lawyers” to decide. This is undemocratic.
But the anti-democratic strain characterizes the controversy on both sides. The alternative would be a referendum in which the people would vote on the matter. Under a referendum the law would only change if a majority of people in a majority of states vote for the change. Gay activities vehemently oppose a referendum while at the same time assure everyone that a majority of Australian citizens support same-sex marriage. In other words, “don’t ask the people, they can’t be trusted to make the right decision.” Activists also argue that a referendum would only whip up division. In other words, “the people are too stupid to be trusted with vigorous debate and can’t be trusted to come to the right conclusion.”
On the other hand, if the court decides to change the definition of marriage, “they will reveal the same contempt for Australian voters as the activists,” and would be deciding an issue that is inherently political, not judicial.
Laws enacted by the ACT must comply with federal law. The new law does not. Therefore, by definition it is invalid. Yet the federal government wants to test it in court.
There is even the possibility that the High Court would not actually have to redefine marriage for states to have legal same-sex marriage laws. If the court decides that the definition of marriage is what it was in 1901 when the Constitution was enacted, it may say that the Commonwealth only has jurisdiction over marriages between one man and one woman, and that the States have the right to regulate any other kind of marriage.
While this would seem irrational to some, the Court may choose to actively support social change in Australia. If, on the other hand, the court determines that the Constitution must be moulded to fit today’s circumstances, then section 51 (xxi) can be redefined to include same-sex marriage. The “living constitution” argument is being promoted in the United States by judges and political leaders. In this case, it would also be an activist bench that would be finding implied rights in the constitution that they can use to push social change. This would also over throw the rule of established law and give government and the courts ability to make whatever changes they want, a very unhealthy move for democratic societies because it does and “end run” around the voters.
“Likewise also, as it was in the days of Lot…” Luke 17:28