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Topics In the News
Same-Sex Marriage Window in Australian Capital Territory
Posted by: Claude J. Summers on 12/03/13
Last updated on: 12/03/13
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On December 7, 2013 and throughout the following weekend more than 50 same-sex couples are expected to marry in the Australian Capital Territory (ACT) in advance of a ruling from Australia's High Court as to whether the ACT marriage equality bill is constitutional. The High Court is expected to issue its ruling on December 12, so the window in which same-sex nuptials are permitted may be brief.

In September 2013, the ACT government announced that it would sponsor a bill legalizing same-sex marriage. The announcement came after several unsuccessful attempts to pass a federal marriage equality bill. At the time Chief Minister Katy Gallagher said that there was overwhelming community support for the measure. "We would prefer to see the federal parliament legislate for a nationally consistent scheme, but in the absence of this we will act for the people of the ACT."

ACT's Legislative Assembly debated the Marriage Equality Bill 2013 on October 22, when it was passed by a vote of 9 to 8. Under the legislation, same-sex marriages will legally be allowed to be performed in the ACT from December 7, 2013.

However, after its passage in October, federal Attorney General George Brandis filed an emergency challenge to the bill before the High Court of Australia.

On December 3 and 4, the full bench of the High Court heard arguments as to the constitutionality of the bill. As reported by the Australian Broadcast Company, the principal question before the Court is whether the ACT legislation is consistent with the federal Marriage Act, which provides only for marriage between a man and a woman.

Justin Gleeson, the Commonwealth Solicitor-General, told the High Court that marriage is the union between a man and a woman and that the Federal Parliament has the right to define marriage in Australia.

Attorneys for the ACT argued that same-sex marriages can coexist with opposite-sex marriages and that the ACT has the right to legislate same-sex marriages. They pointed out that the federal marriage law does not ban same-sex marriages.

Australian Marriage Equality's lawyer Anna Brown said that "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."

After the hearings on December 3 and 4, the court said that it will hand down its decision on December 12, and in the meantime will allow same-sex marriages to take place in Canberra.

ACT Attorney-General Simon Corbell said that marriages can take place this weekend because the Commonwealth did not seek an injunction.

"I'm sure couples will welcome the fact that the law will come into operation and that they can marry under the law, albeit, with the prospect that there is some risk to those ceremonies because of the uncertainty surrounding the High Court case until we receive the court's judgement," he said.

If the Court rules that ACT's legislation is invalid, the marriages performed under it may also be ruled invalid.

If the Court rules that ACT's legislation is constitutional, Canberra is likely to become the marriage destination for same-sex couples all across the country since its law has no residency requirement. Moreover, a ruling in favor of the ACT legislation from the High Court is likely to encourage other states to enact same-sex marriage legislation.

The following clip reports on the ACT marriage-equality question before the High Court.

The video below, from October 22, reports on the passage of the ACT legislation.

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