The Marriage Amendment Act: Can Australia Prohibit Same-Sex Marriage?

By King, Katy A. | Washington International Law Journal, January 2007 | Go to article overview

The Marriage Amendment Act: Can Australia Prohibit Same-Sex Marriage?


King, Katy A., Washington International Law Journal


I. INTRODUCTION

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. President Bush desired a constitutional amendment to ban same-sex marriage at the federal and state levels, whereas Australia's constitution already gives Parliament the express authority to pass binding laws on the topic of marriage. This difference may affect the impact of federal legislation defining marriage.

The actual effects of these two laws are similar in many ways. In Australia, states can allow de facto relationships that grant unmarried couples state benefits equal to those granted married couples; states also potentially can pass civil-union laws.15 These couples, however, will be excluded from federal laws that cover superannuation,16 immigration, and taxation.17 There is debate over whether Australian states, like U.S. states, have the authority to pass same-sex marriage laws.18 In the United States, states can authorize same-sex marriage, but those couples are denied federal benefits to which other couples are entitled.19

Due to differences between the two countries' constitutions, however, the strategy that same-sex marriage proponents use to attempt to legalize same-sex marriage should be different. In the United States, a ruling upholding the legality of DOMA from the Supreme Court will continue to limit federal benefits for same-sex couples and the right to have a same-sex marriage recognized in another state. DOMA does not, and cannot, prevent states like Massachusetts from legalizing same-sex marriage; the U.S. Constitution does not expressly authorize Congress to pass laws regarding marriage. On the other hand, because the Australian constitution does expressly authorize Parliament to pass laws regarding marriage, it is riskier for proponents of same-sex marriage in Australia to force a decision by the High Court; a judicial determination that the Marriage Amendment Act is constitutional would allow Parliament to exercise its express constitutional authority to regulate marriage at both the federal and state levels. …

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