Australia Highest Court says no to same sex marriage

The world where same sex marriage is allowed as a matter equality is getting bigger.

The world where same sex marriage is allowed as a matter equality is getting bigger. The travel options for gay honeymooners and tourists is also getting larger, but some regions where tourism is important are closing their door to the GLTB market. After Hawaii said YES, Croatia said no. Yesterday India made gay sex a crime, Uganda wants gay tourists to go to jail, and now Australiaโ€™s High Court struck down Thursday the Australian Capital Territoryโ€™s same-sex marriage legislation, contending that only federal parliament could amend the nationโ€™s marriage laws.

The unanimous ruling found that the Marriage Equality (Same Sex) Act 2013 passed in the Australian Capital Territory (ACT) in October could not go into effect concurrently with the Marriage Act 1961 – a federal law outlawing same-sex marriages. ACT is a small, self-governing territory in southeast Australia which includes the countryโ€™s capital city, Canberra.

About 30 couples have married under ACTโ€™s law, enacted in November. Their unions will be considered invalid, as the entire legislation was struck down.

The federal government challenged the law, saying it was inconsistent with Australian law.

Indeed, the High Court found that only the federal parliament can legislate same-sex marriage, according to the Australian Constitution.

The court said that Marriage Act 1961 was comprehensive and definitive on the issue of marriage as a union between a man and a woman.

There were tearful scenes outside the Canberra courthouse as some of the 27 couples who wed under the month-old law learned that their vows were to be annulled.

“In less than a week we’ve been married and we’ve been unmarried, at least on a legal level,” a “devastated” Ivan Hinton told reporters, fighting back tears.

Hinton married his partner of 11 years Chris Teoh at Old Parliament House on Saturday, one of the first weddings to be conducted under the ACT law.
“We’re still married. I’ve made commitments to Chris to spend the rest of my life with him, through sickness and through health, in the good times and in the bad. Today’s not particularly good,” Hinton said.

Gay marriage was explicitly outlawed under a 2004 revision of the national Marriage Act by the conservative prime minister at the time, John Howard. Since then, the issue has gained increasing national traction.

Same-sex couples can have civil unions or register their relationships in most states across Australia, but the government does not consider them married under national law.

For legal purposes they are considered de facto couples and have exactly the same rights as married couples. Campaigners, however, insist that the right to marry is a more fundamental human right.

Despite Thursday’s court ruling, veteran gay rights campaigner Rodney Croome said social progress could not be undone.

“Although there’s been a defeat for marriage equality in the High Court today this week, we’ve seen a much greater victory,” an emotional Croome said.

“For the first time ever same-sex couples have married on Australian soil. That has been a huge step forward and one from which there is no return.”
The ruling had also given campaigners a clear path forward, Croome said, putting the ball squarely in the parliament’s court, and affirming for the first time that lawmakers “definitely” had the power to legalise same-sex marriage.

“Many people had assumed that until now, but it has never been declared by the court,” he said.

Others also took heart from the court’s declaration that, while the Marriage Act was restricted to male-female unions, the constitution did not inherently exclude same-sex couples from the definition of “marriage”, underscoring that it was a political rather than legal issue.

But religious groups including the Australian Christian Lobby welcomed the ruling, saying the issue was irrelevant to most Australians and it was “time to move on”.

The conservative government of Prime Minister Tony Abbott is opposed to gay marriage, despite Abbott’s sister being a lesbian who hopes to marry her partner.

Attorney-General George Brandis welcomed the decision and urged MPs to “uphold and respect” the ruling, which he said went to the question of uniform marriage legislation.

“The proceedings in the High Court have never been about the desirability or otherwise of same-sex marriage,” he said.

The Labor opposition called on Abbott to allow a conscience vote on the issue, where lawmakers would be free to cast on personal rather than party lines.

A previous ballot in September 2012 failed by 98 votes to 42, after Abbott imposed the party line on his MPs.

The decision comes on the heels of other discouraging news for marriage equality advocates worldwide.

On Wednesday, the Indian Supreme Court struck down a 2009 ruling by a lower court to decriminalize gay sex and will uphold the ban.

And earlier this month, the majority of Croatians voted to outlaw same-sex marriage in a referendum held by the newest European Union member state.

About the author

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Linda Hohnholz

Editor in chief for eTurboNews based in the eTN HQ.

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