Same-sex marriage legalization in one Australian district may be short-lived

The federal government is challenging a bill in Australian Capital Territory that legalizes same-sex marriage, contending that it violates the federal Marriage Act. 

Hotel bookings are filling up fast, florists are gearing up for a bumper season, celebrants are in short supply, and venues almost impossible to find.

The Australian Capital Territory (ACT) – Australia’s equivalent to Washington – made history late last month when it became the first jurisdiction in Australia to legalize same-sex marriage. Hundreds of couples are expected to tie the knot in Canberra in early December when the new laws come into force.

But the celebrations may be short-lived. The federal government has challenged the ACT’s Marriage Equality Same-Sex Bill in the High Court. If the top court finds that the bill is inconsistent with the federal Marriage Act, which defines marriage as being between a man and a woman, it is likely to be deemed unconstitutional. A ruling is expected within days of the new laws coming into effect. 

Closely watching the legal tussle are the state governments of New South Wales, which on Thursday began debating gay marriage in its Upper House, and Tasmania, which will reintroduce similar legislation to its Parliament early next year.

For many gay activists the moves at state and territory level are long overdue. Support for same-sex marriage has grown steadily in Australia over the past decade. A 2012 poll by Galaxy, an Australian market research firm, found 64 percent support for same-sex marriage, compared with 38 percent in 2004. There is a greater tolerance for gays in public life, with the former leader of the Greens party, Bob Brown, and Penny Wong, the finance minister under the former Labor government, both openly gay.

But the issue remains divisive. Echoing the views of many conservative Catholics, Sydney’s archbishop Cardinal George Pell last year told a Senate inquiry into amendments to the Marriage Act that it would be a "grave injustice" if children were "deliberately deprived" of a mother and father. "Marriage is a union that is publicly recognized, honored and supported because of its unique capacity to generate children and to meet children's deepest needs for the love and attachment of both their father and their mother," he said.

Others oppose the actions of the ACT and New South Wales governments for setting a dangerous precedent for states to interfere with federal laws. Producing a marriage code suitable to present-day Australian "is best done by the Australian Parliament exercising a conscience vote rather than state and territory legislatures tinkering and then leaving the matter to the High Court," says Father Frank Brennan, professor of law at Australian Catholic University.

According to Dennis Altman, gay-rights activist and author of "The End of the Homosexual?", changing the marriage laws is largely symbolic as Australian legislation already guarantees equality for same sex couples in areas such as immigration, hospital and health costs, retirement funds, pension benefits, adoption, and surrogacy.

"Australia may not have [gay] marriage, but it has a much more developed set of legislation ensuring the equality of same-sex partnerships and there’s no real equivalent to that in the United States," says Altman, who is an emeritus professor in the faculty of humanities and social sciences at Latrobe University in Melbourne. 

For Altman the gay marriage debate is masking far more important issues such as "a sensible discussion about what we in Australia can do to support people who are being tortured and persecuted and, in some cases, killed because of their sexuality."

Altman cites the recent changes to Australia’s asylum seekers laws that mean boat people arriving in Australia are now sent for processing to Papua New Guinea where homosexuality is criminalized. That he says, "is far more significant than if two people can walk down an aisle wearing matching white tuxedos."

Public acceptance of same-sex marriage, however, has failed to sway Australia’s politicians, who normally vote as a bloc rather than being allowed by party leaders to exercise a conscience vote. In 2012 a same-sex marriage bill introduced by the Labor Party was defeated in the federal House of Representatives by 98-42. With a conservative Liberal-National Coalition now in power, there is even less chance of legislation passing through federal Parliament.

The deputy national director of Australian Marriage Equality, Ivan Hinton, is not dissuaded by the obstacles that lie ahead. "The opportunity of having the High Court consider the issue of marriage equality is a wonderful opportunity to remove the politics from this issue," Mr. Hinton told ABC radio.

Constitutional experts say the ACT's case will come down to whether or not the federal Marriage Act is intended to be a comprehensive statement on the definition of marriage, which precludes the states from having anything to say on the matter. 

Upholding the ACT’s case would require amending the Marriage Act, a duty that would typically fall to Parliament. But the High Court of Australia could decide that, as a result of the ACT legislation, the definition of marriage in the Constitution needs to be changed. That would trigger a referendum – a procedure Australians have traditionally been loath to embrace.

(Editor's note: the story was amended to clarify why a referendum would be necessary.)

 If the laws are struck down by the High Court, every same-sex marriage would have to be annulled.

The legalization of same-sex marriage has not only pitted the federal government against the states and territories, it has set the Prime Minister Tony Abbott against his openly gay sister, Christine Foster. In a column for The Guardian Australia Ms. Foster defended the new laws saying the historic decision of the ACT legislature did not threaten the institution of heterosexual marriage.

Mr. Abbott has been at pains to point out that he does not have a problem with his sister’s sexuality.  He said last week he would "do the right thing" and attend with a present if his sister had a "ceremony of some kind." But he emphasized that when it came to same-sex marriage he remained a "traditionalist."