Only the Federal Parliament can provide same-sex marriage, says the High Court:
The judges found the ACT law could not operate alongside the federal law as only the Federal Parliament had the power under the constitution to legislate on same sex marriage. They said the federal Marriage Act did not allow or recognise marriages between same sex couples.
The court held the ACT’s act provided for marriage equality for same sex couples, not, as the territory argued, for a form of legally recognised relationship that was different from marriage. The finding means the ACT act cannot operate concurrently with the federal act.
“Because the ACT act does not validly provide for the formation of same sex marriages, its provisions about the rights of parties to such marriages and the dissolution of such marriages cannot have separate operation and are also of no effect,” the statement said. “The court held that the whole of the ACT act is of no effect.”
The marriages of those who were joined together the past five days have been dissolved by the Court’s action.
It all seemed like something of a longshot. In Australia, marriages are regulated by the Federal government, and not the individual states and territories, a reversal of the legal framework in the U.S. Under Federal law, marriage in Australia is explicitly between opposite sex couples, thanks to a 2004 amendment to the Marriage Act that was imposed by the Liberal Party (which is actually the socially and economically conservative party). The Australia Capital Territory (ACT) enacted what they argued was a completely separate institution called “same-sex marriage,” which, their argument went, was completely different and independent from the Federally-defined and regulated institution of marriage. The High Court didn’t buy that argument.
The Liberal government immediately challenged the ACT law as soon as it was enacted. Liberal Prime Minister Tony Abbot has resisted calls for allowing a conscience vote on a marriage equality bill in the Federal Parliament.