Box Turtle Bulletin

Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
This article can be found at:
Latest Posts

Australia High Court Overturns Same-Sex Marriage Law

Jim Burroway

December 11th, 2013

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.

Comments

POST COMMENT | COMMENT RSS 2.0

Dan
December 11th, 2013 | LINK

It turns out that US-style federalism has its advantages. Oh well, maybe it will turn out that the straights-only marriage law is unconstitutional. It is, if the Australian constitution is worth its salt.

Stefano A
December 11th, 2013 | LINK

While it’s a blow for state’s being able to legislate for same-sex marriage, the upside is that the decision clears the way for a federal law, if the federal Parliament ever gets around to passing one of the bills introduced.

One of the High Court’s critical points was that the word “marriage” in the Constitution means “the union of any two natural people” and not restricted to unions between a man and a woman. Prior to the court’s decision that was never clarified before.

So, when/if the federal parliament does legislate for marriage equality, religious groups won’t be able to challenge any federal same-sex marriage law on the grounds that the Constitution defines marriage as one man and one man. It does not.

And I’d be sceptical of the federal parliament amending the constitution to out-right ban same-sex marriage. They could try, but I don’t think it’d pass as I believe there’d be too much blowback.

Stefano A
December 12th, 2013 | LINK

OOops!

This obviously should have read:

So, when/if the federal parliament does legislate for marriage equality, religious groups won’t be able to challenge any federal same-sex marriage law on the grounds that the Constitution defines marriage as one man and one man woman. It does not.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required)
(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.