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High Court did the best it could on same-sex marriage

The fact that marriage isn’t yet equal in Australia is saddening, depressing and annoying. But, given John Howard’s 2004 anti-equal-marriage amendment to federal marriage law and the fact that the Constitution explicitly reserves marriage to the federal government, the High Court made the right decision.

For the Australian Capital Territory’s Marriage Equality (Same Sex) Act to have been legal, the court would have had to have agreed with the wording of that act that same-sex marriage didn’t count as “marriage” for the purposes of the Constitution, and therefore didn’t fall within the Constitution’s designation of marriage as a matter reserved for the federal government.

That would have meant that marriage was recognised inherently as something that could only be between a man and a woman, rather than solely because of the wording of the 2004 law. From a symbolic point of view, this would have been terrible. And given that same-sex couples already have de facto status, which in Australia confers the same rights and obligations as marriage for most practical purposes(*), the purpose of the ACT legislation was solely symbolic.

But the High Court ruling is not just symbolism.

The legal position following today’s ruling, is that

  • all marriages in Australia are real marriages, irrespective of the participants’ recorded gender;
  • it’s only the 2004 federal law that prevents marriage equality; and
  • its repeal will put same-sex (and trans*) marriages in exactly the same position as opposite-sex marriage.

Had the court ruled the other way, it would have found that same-sex marriages didn’t count as real marriages at the level of the constitution, which would have been far harder to fix.

When will the 2004 law get repealed? Well, it was a Conservative government that introduced equal marriage in the UK. Even fusty Tory bigots can’t fight the tide of history forever…

(*) there are some differences between marriage and de facto status, mostly related to property division and alimony. However, an ACT ‘Same-Sex Marriage’, being explicitly not considered as marriage under federal law, would not have changed these, certainly outside the jurisdiction of ACT courts and quite possibly even within it.

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