I have read with interest a number of tweets and comments on Facebook that now that US Supreme Court has found same-sex marriages to be constitutionally valid that the High Court of Australia should follow this precedent and do the same here.
Unfortunately, it is just not possible for the High Court to do this as the law presently stands in Australia. Here’s why:
- The Commonwealth government in Australia has enacted the Marriage Act 1961 in which marriage is limited to (to use the terminology in Obergefell v Hodges) opposite-sex marriages. In fact, the Marriage Act provides that a marriage overseas between a same-sex couple MUST NOT be recognized as a marriage in Australia. That law has been found to be within the power of the Australian Constitution and thus valid.
- The Australian Capital Territory attempted to enact laws to allow for same-sex marriage in 2013 and, indeed, weddings did take place under those laws. The High Court of Australia considered these laws in The Commonwealth of Australia v The Australian Capital Territory and held it to be unconstitutional (unanimously) because the ACT legislation conflicted with the Marriage Act and section 109 of the Constitution does not allow that. That decision is only 18 months old.
There is glimmer of hope though for those wishing to see same-sex marriages recognized in Australia. In The Commonwealth of Australia v The Australian Capital Territory the High Court held that:
- The Federal Parliament DOES have the power under the Australian Constitution to legislate with respect to same sex marriage if it wants to; and
- Whether same sex marriage should be provided for by law is a matter solely for the Federal Parliament.
The High Court of Australia does not have the ability legally at the moment to do anything about same-sex marriage but the Federal Parliament does. It is as simple as that.
The Armchair Jurist 