Same Sex Marriage in the ACT - Think the bride will be left at the altar

While this is primarily a finance/economic blog, occasionally I will comment on other subjects that might be indirectly related to economics, like Climate Change. Another area is marriage.

Generally speaking marriage is good for an economy in that it promotes population growth and civil order, two things important for economic growth.

Same Sex Marriage is a little different. Certainly doesn't promote population growth (hard to have kids when a key component to a process is missing) but there may be an argument for civil order. Love is always a consideration, but as an economic dry, I'm leaving it out of the equation (One cannot live on love alone as they say). Human Rights, while important, is also not really an issue (as while Marriage is defined as a Human Right, the definition of marriage and who is eligible has always been left to country to decide under international law treaties)

Now in the last few days, the Australian Capital Territory has passed a law allowing Same Sex Marriages to be performed in it's territory. The left has responded in celebration....Hooray! Human Rights for all etc.

However, if you look at the Constitution, it doesn't look that great for the laws. I think they will ultimately be overruled by the Commonwealth.

The reason for this pessimism is basically the Constitution. Firstly, in  the Constitution’s Section 51(11), it explicitly states that the Federal Government has the power to make laws responsible for Marriage.

Secondly there is Section 109 which states, and I quote "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid"

So that pretty much rules out any state in Australia being able to make laws in respect to Marriage, from a constitutional point of view.

Now someone could argue that the ACT is a territory rather than a state. Very true, young person. Problem is Section 52(i) of the Constitution which states

"The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to

(i.) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes"

And the seat of government of the Commonwealth is...drumroll please, the Australian Capital Territory! Yep, that means that the ACT is completely beholden to the Fed's in regards to laws. The Federal Government could just change "Australian Capital Territory (Self-Government) Act 1988 (Cth)" like they did to the Northern Territory's Self-Government Act when that territory got uppity and got Euthanasia legalised back in 1995. All they need is the numbers in the House of Reps (no worries) and the Senate (a bit more difficult at the moment, but probably still an option). Will definitely be fine once the new Senate rocks up in July 2014.

Remember, it's not just the Libs that hold marriage as defined as a union entered into by a man and woman. Plenty of Laborites also believe this (as shown by the votes of the previous federal attempts to change the Marriage Act)

By my reading, the only way Same Sex Marriage could get up in the near future would be to take marriage out of it and call it "Same Sex Civil Unions" (with all the rights and legal protections of marriage). I think politicians on both sides could get this up at a Federal Level. But will the Gay and Lesbian Lobby see this, or will they still hold out for the "marriage" bouquet to be thrown at them.

If they wait, they could be waiting a long time.