Abstract: Both the United States and Australia have federal legislation, the Defense of Marriage Act1 and the Marriage Amendment Act 2004,2 that defines marriage as a union between a man and a woman. Australia has an express provision in its constitution granting Parliament the authority to pass laws on the subject of marriage. The United States, however, has no such constitutional provision. Consequently, Australia's express constitutional provision may lead the High Court of Australia to rule that the Marriage Amendment Act 2004 is constitutional, which would likely preclude Australia's states and territories from passing local same-sex marriage acts. This is fundamentally different than in the United States, where powers regarding marriage are reserved to the states. Therefore, even if the U.S. Supreme Court upholds the Defense of Marriage Act, laws that authorize same-sex marriage remain valid in states such as Massachusetts.1 Passing a law legalizing same-sex marriage in an Australian state, however, may force the issue before the High Court. A ruling upholding the constitutionality of the law may give Parliament the incentive to use its expressly granted constitutional authority to tighten restrictions on marriage and marriage-like entities even further. Therefore, same-sex proponents in Australia should approach the issue more gingerly than same-sex proponents in the United States. Instead of attempting to pass state same-sex marriage provisions and forcing a decision before the Australian High Court, supporters of commonwealth or state same-sex marriage laws should indirectly pressure Parliament to overturn the Marriage Amendment Act. In addition, they should continue to push for domestic-partnership protections at the state and commonwealth level.
February 2004 was an exhilarating month for gay and lesbian couples in both Australia and the United States. On February 12, Mayor Gavin Newsom of San Francisco, California, authorized the city clerk to begin issuing marriage licenses to same-sex couples.4 Similarly, on February 15, approximately three hundred gay and lesbian couples tied the knot in Melbourne, Australia, in what organizers claimed was the world's largest same-sex commitment ceremony. On February 22, two thousand people crammed into San Francisco's Hyatt Regency for a giant wedding reception honoring the thousands of same-sex couples that had been married over the past eleven days.6
What started as a flurry of hope and an attempt to draw attention to the lack of legal recognition for same-sex couples7 ended with disappointment for many. On February 24, President George W. Bush called for an amendment to the U.S. Constitution to ban same-sex marriage.8 On May 27, Prime Minister John Howard introduced legislation into Parliament to ban same-sex marriage in Australia.9 While on July 15 the U.S. Senate defeated the Bush administration's attempt to ban same-sex marriage, on August 12, the California Supreme Court voided the 3,955 marriages that had taken place in San Francisco during the previous February and March.10 On August 13, Australia's Commonwealth Parliament approved legislation defining marriage as a union of a man and a woman.11
Both the United States and Australia have federal legislation defining marriage as a union between a man and a woman. In 1996, the Defense of Marriage Act ("DOMA") became law in the United States.12 DOMA both defines marriage as between only a man and a woman for federal purposes, and asserts that no state shall be required to recognize same-sex marriages from other states.13 Similarly, in 2004, the Commonwealth Parliament passed the Marriage Amendment Act 2004 ("Marriage Amendment Act"). The Marriage Amendment Act inserted language into the Marriage Act 1961 defining marriage as a union between a man and a woman.14 While the plain language of these laws appears similar, the U.S. Constitution differs from the Australian Constitution. …