Australian High Court Shuts Down New Marriage Equality Law, Gay Marriages Declared Invalid

In extremely upsetting and infuriating news, Australia’s High Court has overturned legalization of same-sex marriage in Australian Capital Territory (ACT).

In October, the territory was the first part of Australia to legalize same-sex marriages. However, the national government challenged the law, claiming that it contradicted federal law, which specified in 2004 that marriage was between a man and a woman.

The High Court ruled unanimously against the same-sex marriage law, saying in a statement:

Whether same-sex marriage should be provided for by law is a matter for the federal parliament. The Marriage Act does not now provide for the formation or recognition of marriage between same-sex couples. The Marriage Act provides that a marriage can be solemnised in Australia only between a man and a woman.

The High Court went on to say that any change in marriage equality reform would have to come from the Federal Government. ACT legislation allowed all Australian gay couples to marry inside the ACT, which includes Canberra, Australia’s capital. The 27 couples who have been married since the law came into effect last weekend are being stripped of their marriages.

Teoh and Hinton via {ABC}

Teoh and Hinton
via ABC

Ivan Hinton, who was married last Sunday to his partner Chris Teoh, said, “In less than a week we’ve been married and we’ve been unmarried, at least on a legal level. We’re still married. I’ve made commitments to Chris to spend the rest of my life with him.”

Rodney Croome, the National Director for Australian Marriage Equality said, “This is devastating for those couples who married this week and for their families.”

The Australian Christian Lobby said in a discriminatory and ultimately objectively incorrect statement:

Marriage between a man and a woman is good for society and beneficial for governments to uphold in legislation. It is about providing a future for the next generation where they can be raised by their biological parents, wherever possible. It is now time to move on.

Last year, a bill that would have allowed same-sex marriage was voted down in both houses of Parliament, but civil unions are legal in some Australian states.

Polls from last April suggest that almost two-thirds of Australians support same-sex marriage, compared to only 38% in 2004. About 81% of young people are in favor of same-sex marriage.

Reform is still possible, and maybe even inevitable. Greens leader Christine Milne said,

What the court has decided has made it very clear that the Federal Parliament has the power to legislate for marriage equality…. [The ruling is] a clarion call for everyone in the country who supports marriage equality to now put pressure on the Federal Government and the Federal Parliament to change it.

Darlene Cox and Liz Holcombe via {ABC}

Darlene Cox and Liz Holcombe
via ABC

Darlene Cox, who married partner Liz Holcombe on Saturday, said “I have to say the weekend was so fabulous that it’s taken the shine off, but we’re still walking on air… We were legally married for five days and that’s terrific.” She’s not angry with the High Court ruling, instead arguing that laws are enacted and people change them, which is part of the democratic process. Now the responsibility is on The Federal Government. She said, “If they were so sure that they needed to challenge the legislation, let’s make sure marriage equality is on the national agenda.”

feature image via feminspire.com

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Hansen is the DIY & Food Editor of Autostraddle.com and likes to spend most days making and cooking and writing. She is an MFA candidate in Creative Writing at Colorado State University in her free time.

Hansen has written 164 articles for us.

31 Comments

  1. Thumb up 7

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    This type of backwards motion makes me so scared, and really makes me keep questioning when people write off social justice of any kind as “well on its way”. My state is trying to change our constitution to ban gay marriage and civil unions, and I just read an article on Al Jazeera about the recent re-criminalization of gay sex in India… what is going on?!

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      Unfortunately the more progress made the more the anti crowd in a society will attempt to push back and/or find a legal loophole to promote the typically stifling status quo. A ‘two steps forward and one step back’ lurch towards equality. It will be considered a sudden sea change when the younger generation comes of voting age in Australia … same as it will be for marriage / trans equality in the States.

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      I don’t know. Tbh, in context of the legal situation in Australia, this is a predictable and not entirely devastating ruling.

      First — (most)* of the rights associated with marriage are ALREADY extended to any two people who live together in a domestic relationship for a year or more. So what is being debated is the right to stand up and affirm your relationship in public and have it be called a marriage.

      Second — what was promised would have been the former, but the way the law was phrased tried very hard to create the separate institution of same sex marriage. You would have to go to a different office to get the forms, it would not be necessarily linked to adoption rights.

      Third — although at present it is not possible for any thing other than M or F to be listed on official documents, if that were to change in the future, intersex and genderqueer peeps would probably be excluded. Trans people might be able to marry, but they might have to write their name in the wrong box in order to do so, depending on what their ID says.

      What this has done is started the conversation. It put a lot of pressure on the conservative government (confusingly called the Liberal Party) to actually TAKE action to retain the backward state of the laws. And that was harder to justify than just not amending the marriage act.

      *In my backwards state, only married couples are allowed to adopt, but the ACT law wouldn’t have changed this.

      • Thumb up 1

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        The sad thing is I knew this! I’ve been saying for ages Abbott is a tremendous a-hole paticularly with regard to his scummy racist immigration policies. And somehow I found myself just allowing a total blind spot because you want the place you’re going to be amazing. I’m excited though :)

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      Sorry. I apologise on my Prime Minister’s behalf. We’re decent people and if that homophobic ex-priest doesn’t learn compassion quick smart he’ll (hopefully) be a one term wonder.

      SERIOUSLY! He actually cut programs for the homeless. I’d like to imagine that chat with his priest.

      “Bless me father, for I have sinned. I have let my prejudices control me and valued cutting taxes to big business and going backwards on climate change over actually FEEDING THE HOMELESS!”

      How is that Christian charity?

      • Thumb up 0

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        My family is religious and I grew up going to Catholic schools. One of which is run by the same order which runs the elite conservative breeding ground that Abbott sprung from, and they would be disgusted. These were good men who spent their lives trying to make a difference, in their own way, although I disagree with the church’s politics.

        But I only just discovered about his politics re homelessness and I can’t understand how someone taught by those good men can possibly justify that.

  2. Thumb up 5

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    I think it’s important to remember that Australia has a very different division of powers between state and federal government than the US. What this decision says is that a state or territory doesn’t have the authority to create separate legislation on marriage. It means they can’t allow same sex marriages, but nor can they ban them. It means that when (not if) the federal government passes a marriage equality bill, it will be for the whole country. Is that taking too long? Yes, but it’s coming.

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      Thank you. As much as this decision saddens me, the responses also frustrate me, because the High Court legally could not have upheld the ACT’s law, and in fact, the people who made it law would definitely have known it.

      It’s because marriage laws in Australia are a shared power between state and federal, but the Constitution provides for federal law to take precedence in any inconsistencies…such as between man/woman (fed law) and between whatever/whatever (state). The push on a state level to legalise it was more symbolic than anything, but in that sense it was a success.

      I would just like to clarify that any outrage against the HC decision should actually be directed at federal parliament who have all of the responsibility for changing the marriage laws.

      • Thumb up 1

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        yeah, agreed. after reading more into the analysis the outcome is actually a no-brainer legally but also makes a strong position going forward in terms of the definition of marriage, which is a very positive outcome i was pleasantly surprised by.

  3. Thumb up 5

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    Exactly. Also the Court addressed the definition of “marriage” as between two natural persons, not specifically one man & one woman. This means when the bill is eventually passed there will be no grounds for opposers to launch a High Court challenge against it.

    It was never expected (by most people) that the Court would uphold the ACT’s legislation, so having that issue addressed as part of this action is actually a win for the long-term goal of changing the law.

    I highly doubt we’ll see it pass under the current government, but in the next decade for sure. Ask me that question a few years ago & I would not have been so hopeful.

  4. Thumb up 1

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    This is one of the many reasons why i left Australia, completely backwards politics.

    I mean Queensland why do you still have the gay panic defense?
    Why do you have a lot of your screwed up laws and take away funding for ridiculous reasons.

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      I know! It’s absolutely crazy the way that decision was spun.

      The original case was involved a man who had been molested as a child and was seriously triggered by a friend of his coming on to him drunkenly in a really persistent and threatening manner.

      BUT everyone didn’t actually look into why the decision was made and instead of having an awesome precedent about how we should take people being triggered into account when looking at provocation, we have this bigoted mess.

  5. Thumb up 4

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    Another thing to consider – the Federal government extends defacto status to same-sex couples, which is basically like a common-law marriage. This means that even though my wife and I aren’t legally married in Australia, we are considered defacto partners and get most of the same right anyway.

    Which begs the question WHAT WOULD BE SO BAD ABOUT GETTING THE WORD “MARRIAGE”, but you know.

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      I’m just as mystified about this as you are, and have been ever since “domestic partnerships,” “civil unions,” and various combinations and permutations thereof entered public discourse here in the States. I felt as though Alan Dershowitz and I were the only two people who realized that state-recognized marriages were already civil unions. The battle over the word marriage, which, as @alioh incisively pointed out in a post on Chris Christie’s doublespeak—which, to be fair, is hardly unexpected from someone who has the same name twice—has grown increasingly absurd over the years. Of course, now that the relevant article of DOMA has been struck down, there is a matter of substance at stake; during the preceding decade, though, proponents of “domestic partnerships,” “civil unions,” and whatnot seem to have held, at least implicitly, some kind of magical, medieval view of language that cannot seriously be maintained in our post-Saussurean world.

  6. Thumb up 1

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    ew autostraddle quoted Rodney Croome gross

    but not as gross as overtuning of same-sex marriage in the ACT. Even the the same-sex marriage act was flawed in itself (it was rewritten just before it went through to exclude trans* and intersex folk).

  7. Thumb up 3

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    Yeah – totally agree with the other Australians who’ve posted here. Yeah, it sucks we don’t have equal marriage yet, but the fact is:

    - the high court took the modern view of marriage as ‘between two consenting adults’ (as in, homos too). this will stop later high court challenges to federal equal marriage bills (once federal parliament gets their sh*t together). this is actually a huge win.

    - pretty well everyone knew this was test legislation to test the commonwealth powers… it was pretty predictable that the court would confirm that marriage is a federal issue.

    - we have really good de facto laws, which mean there isn’t such a gap w/r/t rights etc. between married people, non-married couple (whether same sex or opposite sex).

    So maybe just because I’m trying to find any scrap of good news coming out of Australian politics at the moment, but overall this is more of a win than not, because of the high court’s definition of marriage.

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      Remember that in Australia, the Liberals aren’t interested in liberating queer people—or any people, for that matter. Instead, they focus on liberating large, faceless corporations from things like taxes, environmental protection laws, safe working conditions for employees, nondiscriminatory hiring policies, and so on.

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          Whoops, I just threw Liberal with a capital “L” out there completely unmarked. Well there’s something to learn from. And “septentriocentric bias”, is that like the bias of a Global North perspective? Fun word.
          Indeed, I am highly uninformed/uneducated about global politics, especially those in/of the Global South. I did not know that about Liberals in Australia. And actually, I don’t find it counter-intuitive when you take into consideration that American Liberals have some similar agendas (maybe they just work towards those a little more..insidiously than others).

        • Thumb up 1

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          It can be used in a global sense, in which case our culture is full of both overt and covert instances of septentriocentrism: the use of the North Star for navigation; the quest for the Northwest Passage; the construction of the Panama and Suez Canals just to avoid Cape Horn and the Cape of Good Hope, respectively; our negative reactions to the taste of Vegemite and the scent of koala urine; our dreaming of a white—i.e., wintry—Christmas.¹

          However, septentriocentrism can also be used to refer to more local phenomena, like how northern Indians look down on their sourthern countrymen; how Canadians look down on U.S. Americans, how (U.S.) Northerners look down on (U.S.) Southerners, and how the last of these look down on Latin Americans; or how northern Europeans look down on southern Europeans, who, in turn, look down on the Arabs of North Africa, who look down on the northern Berbers, who look down on the Tuareg, who—along with everyone else, unfortunately—look down on sub-Saharan Africans.

          Note also the derived term phalloseptentriocentrism ‘the ideological position that the center of the Universe lies, either literally or metaphorically, at the North Pole’; compare phal(lo)logocentrism. It can be used to refer to the absurd, but, nevertheless once widely held belief that the speakers of Proto-Indo-European inhabited North Pole. It can also be used to refer to the centrality of Santa’s workshop, as it were, to the global economy; in other words, the importance of the holiday retail season; of toys, games, and other products designed for and marketed to children and adolescents who somehow manage to have a large amount of disposable income without having had to work for it; and of cheap child labor.²

          ¹ Though, before 1973, a re-recorded version of the song with lyrics modified so as to refer to the White Australia policy enjoyed modest success down under.

          ² After all, what is an elf if not a child whose growth has been stunted by malnutrition and long hours of hard work?

  8. Thumb up 0

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    This was so exciting for the time that it was real and so heartbreaking to be hit with the reality that nothing is real until it’s fed-real.
    I’m really challenged by wanting so badly to properly marry my fiancé, like my sister and her husband did, vs not wanting to wait forever for it to become “legal”. I feel that even with the language change “commitment ceremony / wedding” and legal rights, there is still a larger then 20% quoted in the above stats who won’t treat it as equal socially. That’s where the real change needs to happen.

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