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

By King, Katy A. | Pacific Rim Law & Policy Journal, January 2007 | Go to article overview

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


King, Katy A., Pacific Rim Law & Policy Journal


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.

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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.