By Mary W Maxwell, PhD, LLB
Last week the High Court of Australia struck down as unconstitutional a statute allowing same-sex marriage. That act had been passed by the legislatures of one of Australia’s territories, namely, the Australian Capital Territory of Canberra, in an area of law in which it lacked authority. Ah, but the High Court, in rolling back the offending law, also said that the gay men and women who were legally married during the life of that law are no longer married today. Sorry, High Court, no can do. This is not in your jurisdiction. Your jurisdiction is only law, not biological reality.
In reality, once a couple receives the blessing of society for its union, as these couples did, something else kicks in. I know it happened to me when I married my (opposite sex) partner in 1980. It is a biological-psychological thing. The expression of approval by the society, and the implied promise of society’s support, greatly increases the effect of the union. Must have been God (or if you prefer, Evolution) that arranged this, and there is nothing a judicial entity can do, or should do, to alter it.
A lifelong commitment, irrespective of any paperwork that happens to accompany it, marks a huge physiological change. What occurs at a wedding is as close to “sacred” as anything can be, and societies back to the Year Dot have acknowledged that sacredness. Can we please respect that? Note: be it bloke-bloke, Sheila-Sheila, or bloke-Sheila, it’s EXACTLY THE SAME THING. How could it be otherwise? There is only one “program” for adoring the beloved. As Helen E Fisher points out in her book Why We Love, there is brain chemistry in the human make-up that makes marriage NATURAL, pleasant, and secure.
In Australia, the legal principle of “ultra vires”(“beyond power”) applies. When a government official, or the whole government, acts ultra vires, such as by making laws that the Constitution does not given them the power to make, the act can be subsequently wiped out. Such correction is vitally important, as any extant laws that violate the Constitution have a way of conditioning people to a weak and wimpy constitution, and we don’t want that.
So let me not be accused of disparaging the High Court’s rollback of offending legislation (even if I think it is monstrous of Parliament to deprive any adult of the right to marry). I side with Sir Walter Scott who, in 1828, accused Napoleon of parricide – killing of a parent – for his killing of the French Constitution, as necessary to the life of the French nation as a parent is to a child.
In the US, I am on record demanding Supreme Court rollback of such outrageously unconstitutional acts as the Federal Reserve Act of 1913 and the Homeland Security (how could Congress use words like that!) Act of 2002. My statement here is only that there is NO WAY to unmarry the same-sex couples who got married in Canberra when they were told it was legal to do so. Biology trumps the judiciary. Love trumps legalism.
I recall being astonished, a few days after my wedding, by the changes wrought in me by having had our marriage legalized. Absolute magic happened when the celebrant said “I now pronounce you man and wife, according to the laws of Australia.” What if someone today popped up to tell me I am no longer married because the celebrant, or the Registry clerk, acted ultra vires (perhaps because they were unqualified to hold the job)? Would I insist that I am married no matter what? Of course I would, and the Canberra couples should do like wise. Come on, High Court, let’s show some respect for the human race.
Mary W Maxwell, PhD, LLB, can be emailed at her website ProsecutionforTreason.com. She declares the above article public domain. Her latest book, Fraud Upon the Court explains how to use the Writ of Error Coram Nobis to ask a court to undo a decision it has made if any member of the court acted fraudulently.