Australian gay couples had their marriages declared void this week by the country’s High Court. So, what’s next for marriage equality rights in Australia?
Around 27 same-sex couples have married since the Australian Capital Territory (ACT) put into force its marriage equality legislation just over a week ago. At the time, the federal government warned that it would challenge the law in the High Courts, arguing that only federal lawmakers have the power to legalize marriage equality and that the local law does not tally with the federal Marriage Act, which was amended in 2004 to ban same-sex marriages.
In a unanimous decision, Australia’s High Court agreed with the federal government. The Court summarized its findings in a short statement:
“The Marriage Act does not now provide for the formation or recognition of marriage between same-sex couples. That Act is a comprehensive and exhaustive statement of the law of marriage. Under the constitution and federal law as it now stands, whether same-sex marriage should be provided for by law is a matter for the federal parliament.”
Prime Minister Tony Abbott has made no secret of his opposition to same-sex marriage. His presiding party and the coalition of which they are a part has worked to block two previous attempts at a federal marriage equality amendment.
The ACT government’s legalizing same-sex marriage was seen as a test for whether the federal government would attempt to oppose the law, and how far state and territory rights might extend. Obviously, the High Court has made it clear that federal action will be needed before same-sex marriage can be legalized. Given that the federal government is opposed to marriage equality, it raises the question what’s next for the civil rights fight?
What’s Next for Same-Sex Marriage in Australia?
Rodney Croome of the leading Australian gay marriage advocacy group Australian Marriage Equality, argues the loss is only a minor setback.
“But in many ways the finding is less important than the images and personal stories from last weekend’s same-sex marriages in Canberra, which have taken the Australian public’s understanding of marriage equality to a new level,” Croome writes. “The ideological conflicts and political protests that often turn Middle Australia away from an issue were removed. Instead, the values at the heart of marriage equality — love, commitment, family — were finally visible for all to see and share.”
Croome points to the fact that the coalition will need to hold a conscience vote to decide whether to bring marriage equality legislation before Parliament.
He is joined in calling for the conscience vote by Labor state governments in New South Wales, Queensland, Western Australia and Victoria, who all believe that their federal counterparts in the Abbott government should do the same.
Of particular importance is West Australian Premier Colin Barnett’s statement on the issue, saying he doesn’t support same-sex marriage but that a vote should be brought. “I think the mood of the Australian people is changing and I have no doubt that at some stage we will have same-sex marriage,” he is quoted as saying. “I think the Australian people need to get to that point. When it comes to a vote, my view is yes, it should be a conscience vote.”
There’s also reason to think that the 30 or so couples who were married and have now had those marriages declared void could attempt a lawsuit regarding the injustice they have faced. However, a federal legislative vote is much preferred and the High Court has already shown it wants to rule conservatively on this issue.
Perhaps the best perspective on this issue comes from Darlene Cox, who married her partner Liz Holcombe on Saturday and whose marriage was also voided by the High Court ruling. She says she is not angered by the High Court ruling, but that it’s time for the government to recognize they have to act.
“Laws are put up and people change them, it’s fine, it’s actually part of the democratic process,” she said. “You’ve got to respect the process. I think the responsibility is now on the federal government. If they were so sure that they needed to challenge the legislation, let’s make sure marriage equality is on the national agenda.”
Christian lobby groups who wanted the marriages overturned have called the High Court ruling a “common sense” one and have said it is now “time to move on” from same-sex marriage, which they believe is irrelevant to most Australians.
Not only does that seem unlikely, the High Court’s confirmation that only the federal government can make marriage equality a reality appears to have concentrated campaigners’ minds and put pressure squarely on federal lawmakers. One thing is for sure: the fight is not over yet.
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