According to some experts, writes Lionel Grant, the ACT’s new marriage equality laws stand a real chance of survival against the Federal Government’s High Court challenge next week.
NUMEROUS ATTEMPTS by all recent Prime Ministers, excluding Kevin Rudd mark II, to prevent marriage equality from becoming law in Australia ‒ despite surging public support ‒ may soon become distant memories according to experts who think the high court may have scope to make history on the unceasing subject.
Prime ministers John Howard, Julia Gillard and Tony Abbott have all taken steps, of varying forms, in their leadership roles to prevent same-sex marriage or civil equality from being realised in Australia. John Howard and Tony Abbott’s moves both involved interventions with laws passed by the Australian Capital Territory. Julia Gillard’s was to call for conscience vote on the issue in December 2011, which she surely knew would not only fail in parliament but would also damage its immediate prospects of returning to the legislature. Even Kevin Rudd, in his first tenure as prime minister, failed on act at a time when other progressive nations were moving quickly.
This year, conservative governments in New Zealand and the United Kingdom have overseen the legalisation of equal marriage. Spain and Argentina, with populations that are over 90 per cent Catholic, as well as Portugal and Belgium, with populations that are over 70% Catholic, have all passed marriage equality in recent years. Canada, The Netherlands, Sweden, Denmark, Norway and South Africa are all on the list of countries which have acted at a national level, while the United States is among those countries whose States have driven legislative change.
In Australia, no states have as yet passed marriage equality into law. However, the tiny enclave jurisdiction of the Australian Capital Territory did make the historic change in October this year. It’s this new territorial law that is under threat from the High Court challenge recently triggered by the Abbott government, which will be heard on December 12.
Hoping to draw an injunction before any marriages could take place under the new law this Saturday, the Abbott Governments bid was more widely aimed at invalidating with laws on the basis that they conflict with federal ones. And while there is a chance the High Court may find the ACT law invalid, constitutional law expert George Williams is reported as saying the law has a real chance of survival, because the Federal law:
“…only deals with heterosexual marriage and so it leaves room for a state or territory to pass a law on different forms of marriage.”
Australian Marriage Equality's lawyer Anna Brown has also reportedly made comments that echo those of Professor George Williams in relation to how the ACT laws could sit alongside the federal ones:
“The ACT sought to argue that the ACT marriage laws should be held to be valid because it governed only same-sex relationships and that wasn't in conflict with the Federal Marriage Act.”
The good news for those Capital Territorians planning to tie the knot this weekend is that no injunction occurred. Not only does this mean the first 12 marriages set to go ahead on Saturday in the ACT will change the lives of 24 people, but it will create an unremitting platform of living, breathing cases upon which the decade-long battle for marriage equality can continue.
(Image via the Charlotte Observer)
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