(Closed) Canberra – Austrialian High Court Overturns Same Sex Marriage Law

posted 7 years ago in LGBTQ
Post # 17
1344 posts
Bumble bee
  • Wedding: January 2014

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@Lollybags:  Sorry, I see you already answered my question while I was typing 🙂

Post # 18
2268 posts
Buzzing bee

@paula1248:  “Though I support same sex marriage, I believe the High Court did exactly the right thing. Marriage is a federal issue, not a state/territory (i.e. Canadian province) issue, so the ACT (Australian Capital Territory) was passing a law in an area it had no jurisdiction over.

I suspect most ACT politicians knew this, and their real reason for passing the bill was to put gay marriage back on the political agenda. In that, they succeeded.


My opinion exactly.

Post # 19
7976 posts
Bumble Beekeeper
  • Wedding: July 2013 - UK

I have a slightly different take on this… don’t know if it’s relevant to Australia though…

We don’t have a constitution in Britain… we have a mish-mash of laws, some of which are common law and some of which are statutory law.

In 2004, we passed a piece of legislation called the Civil Partnership Act. This meant that same sex couples could obtain the same legal rights as married couples. They could adopt each other’s children, receive pension and employment benefits from each other, be legally considered next of kin… etc etc. But we didn’t call it marriage. Why not?

Because of our mish mash of laws, calling it marriage would have had various knock on legal consequences for equality legislation (amongst other things, but especially equality legislation). It would effectively have meant that all religious groups would have been forced to perform same sex marriages.

It has always been up to the religious celebrant in question whether they would bless a same sex union, and many of them did. From 2004 onwards, many same sex couples had a civil partnership, followed by a religious blessing ceremony (it was illegal to call it a marriage blessing due to rules on sham marriages, but you could call it a “blessing of the union of X and Y”, for example.

Immediately after this law was passed, it was challenged by two groups.

– Gay rights groups who wanted it to be called marriage.

– Same sex non-religious couples who argued that marriage was religious by definition, and that they wanted to be able to have an opposite gendered civil partnership rather than a marriage.

We recently passed a new law allowing opposite sex couples to have civil partnerships, and same sex couples to have marriages. IMO, this was an unwieldy piece of legislation which was hurridly passed to give legitimacy to a failing government, and try to win back popular support. Because it was forced through for the wrong reasons, there was no proper parliamentary debate about the legal details. In order to prevent religious groups from being sued under equal opportunity legislation, the government effectively made it illegal for religious officiants to be involved in same sex marriage (unless their umbrella organisation had explicitly opted in). Any same sex blessing within the Church of England was also made explicitly illegal.

Same sex couples gained the right to call their unions by a different name, and the right to extend noble titles to their same sex partner (so, for example, Lord Smythe’s husband/wife’s title is Lord/Lady Smythe, but his civil partner’s name is Mr/Mrs Smythe). Hardly much of a gain.

Same sex couples effectively lost the right to have their unions blessed religiously in the majority of faiths in the UK.

I don’t know if this might also be in issue in Australia, but I felt like I was a lone voice opposing gay marriage legislation in the UK… or at least opposing it for the right reasons. (Disclaimer: I fully supported the 2004 Civil Partnership Act, which I thought was a timely and important piece of legislation).

Post # 20
235 posts
Helper bee
  • Wedding: January 2015

I was lucky enough to be at one of those weddings last weekend (and the husbands made it into quite a few papers!). It felt like everyone knew it would be overturned but so great to be able to be part of what is hopefully a big push towards marriage equality in Australia. I’m not “officially” engaged yet but planning on a wedding mid 2015, and I would hate to have to have the “man and woman only” part in my ceremony with so many friends who aren’t currently able to express their love the same way as me. 

Post # 21
7976 posts
Bumble Beekeeper
  • Wedding: July 2013 - UK

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@Lovemelovemyhorses:  “I can not think of ONE reason it shouldn’t be legal”

Again… maybe not relevant to Australia… but my post above details why I was not a fan of UK 2013/2014 legislation, but was a huge fan of our 2004 legislation…. for the right reasons, I hope!

Post # 22
9184 posts
Buzzing Beekeeper

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@Rachel631:  It is kind of similar here. Sam sex relationships are considered as de facto relationships and as such are entitled to the privilleges afforded to everyone in a de facto relationship. It covers such things as custody, taxation, superannuation (401K/retirement funds), immigration & citizenship, assests under seperation situations, social security, aged care and veterans affairs. These rights are almost identical to those of married folks. Anyone who has a same sex marriage outside of Australia has it recognised under this category (de facto).

There is really only one big legal difference between de facto and marriage in Australia and that is that with marriage you are automatically entitled to the benefits of being a couple whereas for de facto relationships there is a 2 year minimum of being together as a couple (so cohabitating). the other big plus is that you have a legal document to quickly and easily prove your relationship status.

A lot of systems work differently in Australia. For example you can appoint anyone to have medical power of attonery, it does not have to be a spouse or relative. You nominate on your superannuation who the beneficary is and it can be anyone you like 9though it can be challenged in court).

So basically the only thing that same sex couples are being denied at the moment is the right to call their union a marriage. Which seems pretty silly when you think about it right!Frown

Post # 23
7976 posts
Bumble Beekeeper
  • Wedding: July 2013 - UK

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@j_jaye:  “So basically the only thing that same sex couples are being denied at the moment is the right to call their union a marriage. Which seems pretty silly when you think about it right!”

Weeellll…. only if they can gain that right without completely shafting someone else… or accidentally shafting members of their own community, for that matter, which was exactly what happened in the UK… but nobody talked about it!

I can definitely see the legal advantages to offering exactly the same rights, but calling it something different. I mean, the key is that everyone is treated the same in law, not that they call everything by the same name…

Post # 24
473 posts
Helper bee
  • Wedding: November 2013

This article puts a bit of a positive spin on things:


If you can’t be bothered to click:

As it happens, the 1961 Federal Marriage Act restricts marriage to unions between a man and a woman, but the court held that it would be open to the Federal Parliament to change that and legislate for same-sex marriages under the marriage power in the Constitution.

Hitherto the point was unresolved. It was thought that if ever the Federal Parliament did legislate for same-sex marriage it would invite a constitutional challenge on the basis that the word “marriage” in the Constitution meant only unions between a man and a woman.

That argument will now no longer run and any future Federal law providing for same-sex marriages would be within the Commonwealth Parliament’s power and a challenge would be futile.

So in the long run, the case improves the prospect of a national law for same-sex marriages and has put paid to any move by any other state or territory to provide for them.

In a way the result is a good one for marriage equality. Having same-sex marriages under state and territory law and other marriages under federal was never going to be satisfactory.

Thursday’s decision paves the way eventually for a national law.

Before Thursday’s decision no-one knew whether the word “marriage” in the 1901 Constitution would enable the Federal Parliament to make laws for same-sex marriages.

We now know that it does.

The court has not yet published its full reasons, but the summary put up on the court’s website on Thursday indicates at least some of its reasoning.

The court went beyond what the Commonwealth had sought at the hearing. At the hearing the Commonwealth Solicitor-General, Justin Gleeson SC, had argued that it was unnecessary for the court to decide the question of the meaning of the word “marriage”. He said it did not matter whether it had a wide meaning or a narrow meaning. The Commonwealth Marriage Act covered the field either way and left no room for any state or territory marriages.

He said the Commonwealth Marriage Act provided who was eligible to change their marital status from unmarried to married and it provided the comprehensive means of determining which people in Australia had the status of being married and which had the status of being unmarried.

There was no room for any state or territory law to alter that line.

There is no telling what Mr Gleeson’s instructions from the Commowealth Government were. Perhaps they were to run neutral of the question of whether the word “marriage” in the Constitution included same-sex marriages.

In any event, the court did not run neutral on the question. It has clearly found it necessary to determine the issue of the meaning of the word “marriage” in the Constitution in order to work out whether the ACT law is invalid or conflicts with the Federal law.

If it conflicts (which the courts said it did) then it is of no effect while ever the Federal law stays on the statute book.

The decision was unanimous. Six of the seven judges sat on the case. They found that the word “marriage” in the Constitution means the union of any two natural persons.

This will be a major blow to religious groups who would have no doubt challenged any Federal same-sex marriage law. Now they have no grounds to do so.

The case is not what it seems at first. It is in fact a major step forward for marriage equality in Australia.

I had a “commitment ceremony” on the 30th of November with my partner of 4 years. Our (fantastic) celebrant explained that she legally could not use the words “wedding” or “marriage” to describe what we were doing, but we certainly went ahead and did. It’s a whole lot of bullshit that Australia is still so behind, but I’m looking forward to the day that we can make it legal. For one, it’s another excuse to wear my wedding dress Tongue Out

Post # 25
9831 posts
Buzzing Beekeeper
  • Wedding: April 2019

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@crookedframe:  thanks for sharing that article, looks like there might be a positive change in federal marriage law very soon! Hopefully you and your partner will be able to legalize your union in the not too distant future! 🙂

Post # 26
2868 posts
Sugar bee
  • Wedding: August 2013

Nooo! My cousin was one of the first women to get married a few days ago in Canberra when it was legal – makes me really sad to hear that her marriage will be invalidated at least for now… 🙁

ETA: glad to read the info that says this might not be as bad as it sounds on the surface!

Post # 27
1247 posts
Bumble bee
  • Wedding: April 2014

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@Rachel631:  just a short response because I’m on my iPhone but the proposed laws here are purely relating to civil marriage and in no way would require a religion to be forced to conduct same sex marriages.  Our discrimination legislation also provides many exceptions for churches and religious institutions which exempts them from certain laws. Eg. A church could legally refuse to hire a Sunday school teacher because they are openly gay. Any other business could not do that. 

Post # 28
754 posts
Busy bee
  • Wedding: October 2014

That’s sad:( they will get there though. Look how far the US has come. Ill be going to a wedding in a few weeks. The couple has been together over 20 years and has 2 kids and it just became legal in their state earlier this year.

Post # 29
7976 posts
Bumble Beekeeper
  • Wedding: July 2013 - UK

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@Lollybags:  Ah, right. Because church based communities must comply with equal rights legislation here. You can’t refuse to hire a lesbian secretary to work at your Catholic church, for example. Which I’m absolutely fine with… the only problem is when it comes to things like marriage. For example, Catholic charities no longer run an adoption service because UK law does not allow them to refuse to give children to single people, gay couples, or people living polyamorously.

The law in the UK regarding marriage is also a real mess. Currently:

– If you are Church of England, you can’t be refused a marriage license on purely legal, procedural grounds (not religious grounds).

– If you are of any other Christian persuasion, you can be refused a license on purely legal, procedural grounds (even if the church has already consented to marry you). These grounds could be as minor as the location of your house in relation to your church. You would then have to marry civilly and have a marriage blessing immediately after your civil ceremony.

– Christians must register their religious marriages legally, but other religious groups are not obligated to do so.

Those are just some of the wonderful gems which result from having held onto various laws which are hundreds of years old!

But if civil and religious marriage are separate in Australia, and religious objections are protected, I don’t see why not.

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