Counter claims on Tasmanian same-sex marriage law’s legality ahead of vote

Anti-gay marriage group is using legal advice to claim a Tasmanian law would be unconstitutional

Counter claims on Tasmanian same-sex marriage law’s legality ahead of vote
24 September 2012

An Australian Christian group has been circulating a legal opinion amongst members of the Tasmanian Upper House that claims state legislation creating same-sex marriages would be unconstitutional ahead of a vote on the issue on Wednesday, but a leading Australian constitutional law expert says the issue is anything but settled.

A legal opinion drafted by Neville Rochow SC for Christian group FamilyVoice Australia claims that ‘any state same sex marriage legislation like the bill, would be beyond the legislative power and competence of that state.’

‘The Tasmanian bill, if passed is likely to be unconstitutional and invalid,’ Rochow wrote.

However Rochow himself testified to the Australian Parliament earlier this year that state based same-sex marriage laws could be possible.

Rochow, who is a board member of the J Reuben Clark Law Society which ‘affirm[s] the strength brought to the law by a lawyer’s personal religious conviction,’ appeared before a Senate Legal and Constitutional Affairs Committee inquiry in May to speak for the group Lawyers for the Preservation of the Definition of Marriage, and told senators, ‘there is nothing to stop [a] state passing a bill that says, “This is a bill regarding same-sex marriage.”

Rochow told senators that ‘marriage’ had been defined under the federal constitution as a union between a man and a woman, but states should be able to legislate for ‘same-sex marriage’ under state law that was defined as a separate institution for two people of the same sex.

‘For something called ‘same-sex marriage’ or ‘gay marriage’ or ‘state based marriage’, there would be no problem,’ Rochow said.

However Rochow told GSN that his comments in the Senate had been hypothetical in nature and at the time he had not ‘seen or considered any specific legislation.’

‘Since those committee hearings, I have been instructed by two separate clients to consider two specific bills in South Australia and Tasmania,’ Rochow said.

‘Having now considered both of those bills, and the extent of the legislative field of the federal Marriage Act and related Hansard, I am of the view that neither of them avoids the constitutional difficulties that section 109 of the Constitution presents. Both bills, if passed into law, would be invalid.’

Section 109 states that when a state law is inconsistent with a federal law, the state law becomes invalid.

Rochow said that he was ‘fortified’ in this view by the opinion of colleagues and experts he had consulted with on the issue.

However Australian constitutional law expert and author of three legal textbooks on constitutional law, Prof. George Williams, said that the issue of the law’s constitutionality was anything but settled.

‘This is an issue that only the High Court can ultimately settle,’ Williams told GSN, adding that that was not a reason for lawmakers to reject a law.

‘It is understandable that that will be used by both sides on the issue. But in the end, where social policy needs to be enacted into legislation, the common course is, if there is a good reason to do it, then the law is passed and you allow the High Court to resolve the matter.’

Williams disagreed that the Tasmanian law would be found inconsistent with federal law.

‘I think there are good reasons to believe that the Tasmanian same-sex marriage law could survive a high court challenge. One reason is that it deals with different subject matter than the [federal] Marriage Act,’ Williams said.

‘I think that it has been carefully drafted to ensure that no person can be subject to both state and federal laws at the same time in this area. I think they give rise to credible arguments [for the bill’s constitutionality] but beyond that we’re in the realm of speculation, because the High Court has never addressed this issue, and in fact a majority of new judges will be sitting on the court before it is looked at.’



No thumbnail available
No thumbnail available

Gay Star News has now officially launched with support from Stephen Fry

The global gay, lesbian, bisexual and transgender news and entertainment site, is now live and already smashing all its audience targets
No thumbnail available

Elton John’s outfits to ‘have own dressing room’ at festival

Legendary gay singer-songwriter will headline Bestival in the Isle of Wight, England
No thumbnail available

Anti-gay group set up to rival Boy Scouts, focusing on 'sexual purity'

On My Honor is setting up a boy scouting group and will allow gay youths and adults as long as they do not 'flaunt it'
No thumbnail available

Rachel Dolezal, under siege for claiming to be black, says she's bisexual

Also relates to Caitlyn Jenner's feelings of isolation
Do you want to buy Derek Jarman's cottage - and 500 acres of Dungeness shingle beach?

Do you want to buy Derek Jarman's cottage - and 500 acres of Dungeness shingle beach?

The bleak, yet eerily beautiful, Dungeness Estate in Kent is up for sale - and with it Prospect Cottage, still a point of pilgrimage for Jarman's fans
Gay Olympics’ to take place in Russia after Sochi

Gay Olympics’ to take place in Russia after Sochi

A gay Russian LGBTI group is planning to hold a series of sports events to celebrate diversity in Russian sport
Canal body discovery shocks Manchester's gay village

Canal body discovery shocks Manchester's gay village

A post mortem is taking place on the body discovered floating in the water nearby Canal Street
No thumbnail available

Christian school rejects 3-year-old because of gay parents

Partly federal-funded religious school in Albuquerque, New Mexico, tells gay couple they do not in their idea of a 'Biblical family'
No thumbnail available

Gay teen banned from wearing tux boycotts prom

Claudetteia Love and her family are standing up to her school’s position that 'girls wear dresses and that’s just the way it is'