ACT Justice Minister Shane Rattenbury, a member of the Greens, has written to the Federal Attorney-General to request that the Commonwealth make further amendments to the Marriage Act to allow gay couples who went through a ceremony of marriage after the passage of the now expunged ACT Marriage Equality (Same Sex) Act 2013 to have the date of that ceremony recorded as the formal date of their marriage in the event that they marry under the Marriage Act 1961.
At a Federal level the Greens are the only one of the three major parties that can claim to have maintained an unequivocal position of principle on same-sex marriage.
The Greens are entitled to the high moral ground on this issue (and also on our response to the refugee crisis, which the Labor and Liberal Parties have created) and it must be a little galling to them, accepting that the process was extremely messy, that it was a Liberal government that delivered same-sex marriage (as an aside, it may be the only positive thing the history books will have to say about Malcolm Turnbull’s prime ministership).
The ALP, having repeatedly embarrassed itself in recent years by refusing to support gay marriage and by actively opposing efforts by states and territories, including the ACT, to formally recognise same-sex relationships by legislating, for example, for civil unions, battled to gain any legitimacy in the debate. Opposition Leader Bill Shorten and the ALP more broadly are generally seen in the community as having agreed to support same-sex marriage only when the polling suggested it was inevitable. Labor was caught out, again, leading from behind.
In this context the move by Rattenbury is understandable. He is keen to continue to bask in the glow of the high moral ground, which the Greens rightly occupy on this issue – at least nationally. While I imagine his request will fall on deaf ears I would be cautious if I were Shane about opening up debate about further amendments to the Marriage Act to provide for the retrospective application of its provisions. It is almost certain that if the Act came up again for debate that there would be a conga line of conservatives with a rash of other amendments that he would not find as appealing.
The difficulty with Shane’s proposal, as well intentioned as it is, is that the ACT’s Marriage Equality (Same Sex) Act was found by the High Court to be, in effect, unconstitutional. It was beyond the power of the ACT Legislative Assembly to legislate on the subject of marriage so the Act was void and of no force or legal effect. The consequence being that any marriage purported to have been created by the Act was similarly void and, as a matter of law, considered to have never occurred.
As one who sees same-sex marriage as quite unremarkable, I found the recent conniptions we have suffered on the subject both disconcerting and disquieting. I am sure there are many people who don’t support same-sex marriage who feel the same. My discomfort was generated not just by the incivility and, at times, nasty tone generated by both sides of the argument but by the breathtaking hypocrisy of so many of the members of the Labor and Liberal Parties who were active in the debate.
It may be that I remain a tad sensitive about the treatment the ACT government received at the hands of both the Howard Liberal and Rudd Labor governments which, over a period of almost 10 years, successively stymied almost every attempt my Government made to formally recognise same-sex relationships in order to complete the removal of all legislative discrimination against the gay community of Canberra.
I was, of course, far more upset by the craven attitude of the Labor Party during that time, including its support for the Howard amendments to the Marriage Act in 2004, than I was at the Liberal Party because it did nothing less than I would have expected of it whereas my party, the ALP, jettisoned a core value and its stated commitment to human rights as unselfconsciously as a snake discarding a skin.