ACT Gay Marriage Law Is Ruled Invalid by High Court of Australia

SEXUALITIES, 16 Dec 2013

Daniel Hurst – The Guardian

Judges rule same-sex marriage law could not sit concurrently with the federal Marriage Act and therefore ‘is of no effect’.

The high court of Australia has struck down the country’s first same-sex marriage law, revoking the legal status of a handful of such weddings since last weekend.

Same-sex marriage advocates expressed their disappointment at the short life of the Australian Capital Territory (ACT) law, but highlighted another significant aspect of the ruling: a clear finding that the federal parliament has the constitutional power to introduce a national law allowing same-sex couples to marry.

Several dozen couples solemnised their relationships under a recently introduced ACT “marriage equality” law that defined marriage as a union of two people of the same sex, which attempted to avoid overlap with the federal Marriage Act. The marriages that took place under the ACT law since it came into force on Saturday no longer have legal effect.

The development is a setback for campaigners who hoped for action from state and territory parliaments after the federal parliament voted against a national same-sex marriage law last year.

The high court ruled unanimously on Thursday that the ACT law could not sit concurrently with the federal provision that marriage is between a man and a woman, and the entire ACT law “is of no effect”. The court said the federal parliament had the power under the constitution to legislate on same-sex marriage and the federal Marriage Act was a “comprehensive and exhaustive statement of the law of marriage”.

“The court held that the object of the ACT act is to provide for marriage equality for same-sex couples and not for some form of legally recognised relationship which is relevantly different from the relationship of marriage which the federal law provides for and recognises,” the court said in its summary of the judgment.

“Accordingly 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.”

Same-sex couples who had married under the ACT law, and religious campaigners opposed to gay nuptials, attended the high court in Canberra to hear the decision. The groups were divided about whether the ruling increased pressure on Tony Abbott and the federal parliament to legislate same-sex marriage nationally.

Glenda and Jennifer Lloyd, who married under the ACT law, said they had tried to prepare for the disappointment of their marriage being ruled void by the high court. Regardless of the legal outcome, they said they still felt married, having made a genuine commitment to each other.

Ivan Hinton, who wed his partner Chris Teoh last weekend, said it was “personally devastating” to be legally “unmarried” less than a week after their vows but was confident the momentum and public support for marriage equality was unstoppable.

The constitutional law expert George Williams said the ruling meant the couples “were never married, in effect”.

“It obviously adds a personal dimension to the issue, because the the ceremonies they went through have been found to have no legal foundation,” Williams said.

The federal government – which launched the legal challenge against the ACT law – was always in a stronger position in arguing its case, he said. The high court noted the problems with the way the ACT law was drafted, including the use of the title “marriage equality” which indicated an intention to operate within the same domain as the federal Marriage Act.

Williams said it was significant that the high court made clear the federal parliament had the power to legislation for same-sex marriage nationally. He had not expected this to be spelled out in the ruling.

“That’s a very significant finding and it’s significant because when the federal bills have come into the parliament the ‘no’ people have argued strongly it would be unconstitutional … This clears the way for a federal law.”

A small band of opponents of same-sex marriage held signs quoting the Bible and one that included “Mum & Dad” in a love heart above the words “God made Adam & Eve”. Another anti-gay-marriage placard said: “Father, forgive them.”

One woman was euphoric at the high court ruling, walking around the forecourt declaring: “God bless Australia, hallelujah … God is love; God is love.” She was challenged by several supporters of same-sex marriage who questioned why she was so happy at the removal of a law that celebrated love.

Rodney Croome, the national convener of the Australian Marriage Equality lobby group, said the ACT marriages were a “huge step forward, from which there is no return”. Contrary to claims about undermining of the institution of marriage, Croome said couples that had married in the ACT had shown they valued marriage so highly that they were willing to risk a high court ruling invalidating it a short time later.

Croome said marriage equality was not really about laws or the constitution, but were mainly about love, commitment and family. The high court confirmed the assumption of many people that the federal parliament had the power to legislate for same-sex marriage. “There is no going back from it.”

The Australian Christian Lobby’s managing director, Lyle Shelton, characterised the “clear decision” against the ACT law as a win for common sense. Shelton – a key critic of efforts to legalise same-sex marriage – voiced sympathy for the couples who held ceremonies since Saturday.

“I think it’s really sad for those people who have taken the decision over the weekend,” he said. “It is unfortunate for them and I do feel for them.”

Shelton also did not endorse the “pretty awful” signs held by some critics of same-sex marriage outside the high court. But Shelton restated his opposition, arguing the rights of children should be placed above the needs of adults. He said about 10 attempts had been made to legislate same-sex marriage in Australia in the past few years and he was concerned it would be legalised “by fatigue”.

“I think this issue has had a pretty good go,” he said.

But the Greens flagged a fresh push to pass same-sex marriage at a federal level and demanded Abbott allow his Coalition colleagues a free vote on the issue.

The court said the section of the constitution allowing the commonwealth to legislate for “marriage” should not be interpreted as being limited “only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation” in 1901. It noted that other legal systems now provided for marriage between persons of the same-sex and concluded that the constitution’s reference “includes a marriage between persons of the same sex”.

The court said the federal parliament had not made a law permitting same-sex marriage but the absence of such a provision did not mean the ACT could make one. The high court asked why the federal parliament amended the federal Marriage Act in 2004 – under John Howard’s government – if not to demonstrate that the federal law “was to be complete and exhaustive”. This amendment made it clear that same-sex marriages were not to be recognised in Australia.

Meanwhile a bill to allow same-sex marriage in Western Australia was introduced to state parliament by Greens MP Lynn MacLaren, Australian Associated Press reported.

MacLaren said Williams and Greens MPs in other states had advised her, and her bill could survive a high court challenge.

“This bill builds on momentum across Australia to close the gap of inequality once and for all,” MacLaren said.

She said she believed it would have enough support to pass the WA parliament.

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