In defence of state and territory same-sex marriage laws

If Labor considers federal intervention a matter of state and territory self-determination it won't allow a conscience vote and the override will fail, at least until the Senate changes in eight months.

If Labor considers federal intervention a matter of marriage equality it is bound to have a conscience vote and the override will probably succeed.

Given that Kevin Rudd's support for marriage equality helped save several inner-city seats for Labor, and didn't cost seats in suburban NSW and Queensland as the nay-sayers predicted, Labor has a clear mandate to uphold legal same-sex marriages.

Whichever course Labor takes, state and territory initiatives will be as much a test of the ALP's new leader as it is of the nation's new Prime Minister.

It's likely any move against the states and territories and will be couched in constitutional terms, so as not to appear prejudiced.

For example, the Howard Government had an avalanche of minor concerns about the ACT Civil Union Bill it quashed in 2006, most of which could be resurrected to draw attention away from the principles behind the ACT Government's initiative.

But there will also be one big, resonant concern: that something as important as marriage is properly a federal matter.

We will be told the Constitution reserves the power to make laws for marriage to the Commonwealth, that it is a step backwards for there to be a patchwork of marriage laws across the nation, that state same-sex marriages are second-rate marriages because they are only for same-sex couples and are not recognised federally or in other states, and that it is a cruel deception to allow same-sex couples to marry under laws that could be undone by the High Court.

Such myth-making ignores three key facts.

The first is that the power to make marriages in the federal constitution is shared by the Commonwealth and the states, meaning that the states can step in and make laws for any type of marriage the Commonwealth balks at.

This was acknowledged by a recent NSW parliamentary report into the issue of state marriage laws which declared the belief in exclusive federal power over marriage to be "an error of fact".

While it's true there could still be a High Court challenge to a state law, there could just as easily be a challenge to an equivalent federal law.