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The Roads to Same-Sex Marriage

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Reformers often argue about how conducive our system is to social change. Some claim that U.S.-style federalism promotes reform by enabling local majorities to enact their preferences. Others assert that a more centralized structure, with the federal government deciding more issues for the entire country, would produce change more quickly. Recent developments with respect to same-sex marriage, in both America and Australia, shed new light on this long-running debate. At first, these developments seem to favor the American model, but the actual story is more complicated (and interesting).

Until a few months ago, America and Australia both had federal laws defining marriage as a union between one man and one woman. In June, the Supreme Court struck down America's Defense of Marriage Act on the ground that it "demeans" and "humiliates" same-sex couples. Both before and after the Court's decision, states rushed to recognize same-sex marriage. According to the latest count, eighteen states, mostly in the East and Midwest, now allow same-sex couples to wed.

In Australia, on the other hand, the High Court did not just decline to nullify the federal definition of marriage in a case decided last month. Instead, the Court relied on the federal definition to thwart an effort by the Australian Capital Territory (ACT), home to Canberra, to authorize same-sex marriage. According to the Court, the ACT law was "not capable of operating concurrently with the [federal] Marriage Act to any extent," and thus was void. The twenty-seven marriages performed under the ACT law were annulled, and today no same-sex couple in Australia can get married.

It seems like an open-and-shut case, then, for the American model. Our laboratories of democracy, aided by a Supreme Court that believes in states' rights, have achieved real progress for same-sex couples. In contrast, the more centralized Australian system, featuring a High Court that jealously guards Parliament's prerogatives, has made almost no headway at all. As Slate contributor Mark Stern put it, "Different systems, different strategies--and today, I wouldn't trade our system for the world."

But such triumphalism may well be misplaced. For one thing, same-sex marriage won't be coming soon to many of the thirty-two states that currently prohibit it. Twenty-eight of these states have constitutional bans in place, which are more difficult to repeal than ordinary legislation. Public opinion in these states is also more hostile to same-sex marriage than in the rest of the country. Nate Silver, for instance, estimates that clear majorities in thirty states oppose same-sex marriage--compared to a national majority in favor.

Moreover, same-sex marriage is unlikely to be attained via a single nationwide decree. The same Congress that can't bring itself to ban anti-gay discrimination in the workplace can't be expected to recognize same-sex marriage throughout the country. And while five Justices are committed to some extent to equality for same-sex couples, a ruling that same-sex marriage is constitutionally required is probably a bridge too far for them. If "by history and tradition the definition and regulation of marriage" is "within the authority and realm of the separate States," as the Court recently opined, then it is not within the Court's bailiwick.

Not only is the American story not as rosy as it seems--the Australian story also isn't as bleak. First, the High Court emphatically rejected originalism in concluding that Parliament could, in the future, authorize same-sex marriage even though the understanding of marriage when Australia's constitution was enacted in 1900 extended only to opposite-sex unions. "Debates cast in terms like 'originalism' or 'original intent' . . . serve only to obscure much more than they illuminate," declared the Court. It isn't hard to imagine this progressive philosophy helping rather than hindering gay rights advocates in the future.

Second, the Court made clear that Parliament could proceed toward equality for same-sex couples in two different ways. Parliament could, of course, "make a national law providing for same-sex marriage." But Parliament could also amend the Marriage Act so that it is no longer a "comprehensive and exhaustive statement of the law of marriage." Only "so long as the Marriage Act continues to define 'marriage' as it now does" are Australian states powerless to recognize same-sex marriage. If the federal law were tweaked, then the states, like their American counterparts, would be free to experiment with new social policies.

Third, and most importantly, the odds of future federal action are higher in Australia than in America. The Australian system is both more centralized than the American (in that the states have less power) and more unified (in that the legislative and executive branches are fused). These features make it easier for Parliament to pass legislation in any policy domain. In 2009, for example, a Labor government equalized treatment for same-sex couples with respect to taxation, health insurance, immigration, and other issues. The administration was able to do so without worrying about filibusters or vetoes or any of the other roadblocks of the American system.

In the future, similarly, another Labor government could authorize same-sex marriage throughout Australia via a simple majority vote in Parliament. Labor has already made the recognition of same-sex marriage a plank of its party platform (albeit with the proviso that party members may follow their conscience on the matter). So all that has to happen for same-sex marriage to come to Australia is for Labor to win the next election (scheduled for 2016) and then not to suffer too many defections when it calls for a vote on the subject. A single electoral triumph is all that's necessary for Labor to enact its policy agenda.

The future of same-sex marriage is thus likely to look very different in Australia than in America. In America, much of the low-hanging fruit has already been picked, and progress over the next few years will probably be incremental. But in Australia, it's easy to envision a scenario in which nothing at all happens for a while--say, as long as the Liberals run the government--and then same-sex marriage is authorized throughout the country in one sudden swoop. Our federalism and separation of powers typically yield frequent but piecemeal change. In contrast, centralization and unified powers set the stage for sporadic but dramatic reform.

Today, then, America's gay rights advocates may claim that they wouldn't trade our system for the world. But they may be singing a different tune in a few years' time, if many U.S. states still ban same-sex marriage while foreign countries increasingly recognize it via federal legislation. Then the genius of our system will be less evident, and its cumbersomeness more so.