Australian High Court Denies Same Sex Marriage

[DesDownunder]

Please be aware that it is the court that did this, not the Australian people.

Over 70% of Australians are in favour of same sex marriage.

http://www.theaustralian.com.au/national-affairs/high-court-strikes-down-act-gay-marriage-law/story-fn59niix-1226781474406

http://www.abc.net.au/news/2013-12-12/high-court-decision-on-act-same-sex-marriage-laws/5152168

I received an email from the local Greens senator which, in part stated:

"In a big step forward for the movement, we formed a Cross-Party Working Group on Marriage Equality yesterday. A Liberal Senator, a Labor Senator and I have pledged to do everything we can to get marriage equality over the line, for all Australians. Click here to call on Tony Abbott to allow the members of his party a conscience vote on marriage equality. "

[Chris James]

What a loss for several dozen couples who joined in marriage before the ax fell. Articles like this leave me with nothing but questions:

It seems that the Australian "states" have no inherent rights to govern themselves or pass laws when such things are said to be illegal. If only the national legislature has the power of lawmaking then how does anything get done on a local level? Sounds like too much centralized power and those of us in the U.S. understand how well that doesn't work.

Whereas the gay marriage fight here is strictly a result of religious intolerance and bigotry by the Bible thumpers I don't see that touted in the Australian press. I wonder if the Australian's have a constitution or bill of rights as we do which has been interpreted to give religious institutions the freedom to do anything they damn well please. Rather than see a constitutional amendment against gay marriage I would like to see one that disavows religious freedom that suppresses gay rights. Even our founding fathers understood that religion was a dangerous tool in the wrong hands. Too bad they didn't spell it out better and look at the mess we now have. I could say the same about gun rights.

Just saying that 70% of Australian people support gay marriage is a far cry from getting it legislated. Politicians are not very responsive to polls unless it is an election year. Gay marriage is not about to change until someone tosses out that damn Christian book and allows people to think without all that garbage in their heads. Marriage is not a religious institution, it is a taxable government function. Religion has stolen the idea when in fact no two religions seem to agree on what it means.

[Cole Parker]

Very well said, Chris. I never will understand why allowing two loving individuals to get married is of any concern to any church. It hurts on one and helps the community. Preventing it doesn't help anyone.

C

[DesDownunder]

Australia does not have a Bill of Rights.

Australia has a 3 tier system of government,

1. Local government councils which basically look after the trash removal and suburban streets funded by taxes and charges on property, along with grants from Federal and State government.

2. State governments which are similar to U.S. State Governments.

3. The Federal government consists of representatives from all states in two Houses; the House of Representatives, and the Senate. It operates out of the ACT (Australian capital Territory) which has its own administrative elected body similar to a state.

Unlike the U.S., Australia uses the Westminster system of Parliament, so direct comparisons are somewhat deceiving. Our Head of State is the Governor General who represents the Queen. We still part of the Commonwealth of Nations.

The head of the Federal Government is the Prime Minister and is selected by the party who holds the controlling majority of the House of Representatives.

Under the Australian Constitution, marriage is a Federal concern, not the states.

It is this issue which was confirmed by the High court when it ruled that the ACT could not grant same sex marriage.

It should be understood that the Constitution stipulates the legislative areas of the Federal government, and the various State governments under the guidance of the the original 1901 Federation and its following amendments.

There are many anomalies and most Americans fall for thinking that Australia's laws are the same or at least similar to the U.S. They're not, even though the founding documents of the U.S. did influence the thoughts behind the Aussie constitution. We are cousins in democracy, not siblings.

There's good and bad in both nations' systems.

To summarise, Australian politicians generally act like they are elected to rule the country, instead of govern the affairs of state. Every now and again we elect someone who understands that he is a servant of the people, but it doesn't happen very often...in my opinion.

Whilst the two major parties align with the political Left or Right, I should point out that the Liberal and National coalition, now in power in the Federal government, is parallel to the U.S. Republicans, and the Labor party parallels the U.S. Democrats. (The Greens are further Left again.) The major difference is that the Aussie parties are much more likely to agree on the basics of a certain need for the people, but not on how it would best be achieved or implemented.

Religious influence, in Australian politics, transcends party barriers, and it would be a mistake to think that the rabid religious right is confined to the right wing political parties.

Voting in State and Federal elections is compulsory, and this tends to ensure that the religious cults cannot form a tea party of influence outside of the will of the majority.

Sorry this is so long...just take away that we are different but allies to democracy and human rights, with a tendency to taking our time.

[Graeme]

I was reading an analysis of the High Court's decision (that still hasn't been published in full, but a summary is available on their website) and there's one huge positive for gay rights in it.

The High Court has declared that under the constitution, the term "marriage" refers to the union of two natural people. It does not refer to the union of a man and a woman. That means that if the Federal Marriage Act is ever amended to remove the constraint (added in 2004) about marriage being between a man and a woman, same-sex marriage will become legal in Australia without any recourse to a High Court challenge.

This was a unanimous High Court decision. That puts the issue firmly back in the politicians' court. The High Court has essentially said that same-sex marriage is legal under the constitution -- it's only the Federal laws that are current preventing it.

It was because of they decided that same-sex marriage is legal under the constitution that they had to invalidate the ACT laws. Under the Australian constitution, marriage is a federal responsibility, not a state (or territory) one.

So, in some ways this is a win for gay rights. There is no longer a potential constitutional issue with same-sex marriage. It is now purely a political issue, and the political trend is in favour of same-sex marriage. It's just a question of when.

Link: http://www.canberratimes.com.au/comment/high-court-paves-the-way-for-samesex-marriage-20131212-2z8kk.html

[Alien Son]

It seems that the Australian "states" have no inherent rights to govern themselves or pass laws when such things are said to be illegal. If only the national legislature has the power of lawmaking then how does anything get done on a local level? Sounds like too much centralized power and those of us in the U.S. understand how well that doesn't work.

Under the Australian Constitution, marriage is a Federal concern, not the states.

It should be understood that the Constitution stipulates the legislative areas of the Federal government, and the various State governments under the guidance of the the original 1901 Federation and its following amendments.

Under the Australian constitution, marriage is a federal responsibility, not a state (or territory) one.

Chris, as Des and Graeme point out, under our constitution marriage is a federal responsibility.

That, however, does not mean that only the federal parliament has the ability to govern or to legislate. In fact, the federal parliament has only limited powers - those powers conceded to it by the colonies during the lead-up to federation in 1901. In practice that means that the feds can legislate only in areas permitted under the constitution.

The colonies (which became states upon federation) retained the power to legislate on anything not listed in the constitution as the prerogative of the federal parliament. It just happens that the power to legislate on marriage is one of those given to the feds. If I recall correctly, the territories (which were created after federation) don't have quite as extensive powers as the states

The problem with the ACT gay marriage legislation, as I understand it, was that it tried to take over the right vested in the federal parliament. Inevitably the High Court (which is - in my view - not beholden to anyone) ruled against the ACT on this occasion. A new gay marriage bill is about to be introduced in the Western Australia parliament. This one seeks to create a new category of relationship, with the aim of bypassing the federal prerogative to legislate on marriage.

John

[Graeme]

The legal argument from the ACT, as I understand it, was that when the federal government changed the Marriage Act in 2004 to explicitly define marriage as being between one man and one woman, this potentially opened the way for the states to pass same-sex marriage laws because, in effect, the federal government had ceded the concept of same-sex marriage as being not applicable at the federal level.

The High Court ruling squashed that legal theory and has stated that the term "marriage" in the constitution covers both heterosexual and homosexual relationships.

Relationship registries other than marriage are allowed in the states, and several states have the equivalent of civil unions as a result. Federally, civil unions are recognised in many parts of the law, but not in all (as I understand it). There's been moves over recent years to change the federal laws to recognise same-sex relationships and treat them as equal to current defacto relationships, and that's been progressing well. I'm not personally sure of where the points of differences in the legal treatment of a defacto or same-sex relationship vs a marriage still lie, but I believe the number is decreasing.

I don't know what the WA proposal will do, but I suspect that legally it'll be the same as the existing same-sex relationship registries that exist in various states.

[Alien Son]

Gay marriage is not about to change until someone tosses out that damn Christian book and allows people to think without all that garbage in their heads.

Chris, if by "that damn Christian book", you mean the Bible, I'd like to point out that the problem lies not with the book, but with the interpretations some people put on it (or read into it).

Taken in its entirety the Bible is a wonderful resource and guide (and, dare I say, instruction manual?). It's when people pick and choose which bits to believe, or when they place emphasis on one portion and neglect others, or when they take verses out of their context, that the problems set in. That sort of selective interpretation often results in skewed thinking and extreme views. In the US it seems to lead to the belief that God is a Republican.

A lot of Christians do not share the views of the so-called "Christian Right"; Christians are no more a homogeneous group than the Roman legion was. A good pastor/teacher will encourage his or her congregation to read and study the Bible for themselves and reach their own conclusions - not take someone else's word for it. The Bible itself does not create or foster the "herd" mentality apparent in some groups - that's the fault of the leaders of those groups and the laziness of the members, and Christians are as susceptible to that mentality as any other group. A letter on The Age website a few days ago said:

Not in my name

The right-wing fundamentalist Australian Christian Lobby should stop claiming to be the Christian voice on moral issues. My church and my many, many Christian friends, of all ages, have no problem with two people who love each other getting married.

I agree wholeheartedly (except that I believe gay relationships are a human rights issue, not a moral one). The ACL has worried me for years with its strident pontificating. What's worse is that, as the letter's author said, they claim to act for all of us.

Through that "damn Christian book" Jesus himself tells me that I need to (first) love God, and (second) love my neighbour as I love myself. The command to love my neighbour is eclipsed only by the command to love God - and, he adds, "All the law and the prophets hang on these two commandments." In other words, all of the laws and all of the teaching set out in the Bible are subject to those two commands. If the lack of love shown by Christians is any indication, there must be a large number of us who have missed that bit!

Sorry for the sermon, but I wanted to make it clear that we're not all bigoted - and some of us can even think! :)

John

[Nigel Gordon]

Through that "damn Christian book" Jesus himself tells me that I need to (first) love God, and (second) love my neighbour as I love myself. The command to love my neighbour is eclipsed only by the command to love God - and, he adds, "All the law and the prophets hang on these two commandments." In other words, all of the laws and all of the teaching set out in the Bible are subject to those two commands. If the lack of love shown by Christians is any indication, there must be a large number of us who have missed that bit!

Unfortunately a large number of those who claim to be Christian (though their behavior does not support their claim) don't seem to know that the New Testament exists. At least that is my experience when they trap me in town a Saturday asking if I am saved. Every time I give them a quote in response to whatever bit of the Bible they are quoting at me they seem lost, I have found that Corinthians 13:4-8 is a total puzzlement to them.

Nigel

[Cole Parker]

Through that "damn Christian book" Jesus himself tells me that I need to (first) love God, and (second) love my neighbour as I love myself. The command to love my neighbour is eclipsed only by the command to love God - and, he adds, "All the law and the prophets hang on these two commandments." In other words, all of the laws and all of the teaching set out in the Bible are subject to those two commands. If the lack of love shown by Christians is any indication, there must be a large number of us who have missed that bit!

Sorry for the sermon, but I wanted to make it clear that we're not all bigoted - and some of us can even think! :)

John

I think the problem is the ones who don't think, either can't or won't, and allow themselves to be led astray by charismatic preachers whose purpose is anything but divine. Then these non-thinking people use the Bible to justify their behavior. So in that regard, I can certainly see why people, tired of those justifications and even more tired of the bad behavior, find reasons to dislike the book.

Yes, the Bible says to love thy neighbor. It also say stoning to death a woman who's strayed is the right and proper thing to do. And while we can condemn those who pick and choose from the Bible, they will do so. So in that regard, while the Bible may be a good book with good intentions, if it's not used for good -- if indeed it is used to justify evil -- then is there anything amiss in finding fault with it?

I agree that people should be held accountable for their behaviors, and blaming the Bible is a cheap trick that won't hold up in either a legal court or one of popular opinion. But this is still happening today in an age of more enlightenment than at any time in history. The Bible gets thrust in the face of congregations and used to further the power of the ministers, which is a wrong use, just as it's wrong to justify beheadings in the name of Allah because some people miss the spiritual basis of the Koran. But these things happen.

I personally feel organized religion causes more problems than it prevents, and the people among us who say every word in the Bible is the word of God and must be followed explicitly are a problem.

C

[colinian]

Are there Domestic Partnerships anywhere in Australia? If so (or if not, too) are they under the purview of the Federal Constitution or could the States create them on their own?

Before the US Supreme Court declared same-sex marriage valid, California created Domestic Partnerships with most benefits of marriage (except divorce; Domestic Partnerships have to be dissolved by a court). Of course, Federal income tax had to be filed separately by each of the partners listing themselves as single. California state income tax allowed filing as Married Filing Jointly or Married Filing Separately.

Now that the Federal law allows same-sex marriage, we can file our Federal income tax as Married Filing Jointly or Married Filing Separately and it's going to be much easier to file our Federal and state taxes. Until we married Doug and I had to create three complete Federal tax returns: two (one for each of us) to file our Federal taxes, and one as a 'fake' Married Filing Jointly or two as Married Filing Separately (depending on how we were filing) that we used to generate our state return(s) and that had to be attached to our state return(s) and would not be filed with our other Federal tax returns.

I've read that we can file amended Federal returns for the years we were able to file California state taxes as Domestic Partners. It means going back to our 'fake' Federal returns and see if there's a difference in our favor. If it's not much of a difference (in our favor, of course) we won't bother; filing an amended Federal return is complicated, and we'd have to file amended state returns as well. Ugh!

Colin

[Graeme]

Colin, Australia has two levels of identification of same-sex relationships, one federal and one state.

The equivalent of Domestic Partnerships is a state-level legal entity. Most states have something in place, though I personally am not sure of what legal rights it gives. The difference between the USA and Australia is that marriage is a state issue in the USA but a federal issue in Australia. Registries of same-sex relationships allow the fact to be recorded, but the legal rights they give is less clear to me. According to this federal site the states that have a relationship registry are the ACT, Tasmania, Victoria, NSW and Queensland (essentially the entire east coast).

The other level of identification is a defacto relationship. This is recognised in law at the federal level and in many cases is treated the same as marriage. Same-sex defacto relationships are, I believe, recognised to the same level as heterosexual defacto relationships. Over the last few years, the Federal government has been expanding the scope of defacto relationships so they come closer and closer to the same legal status of marriage. There's been a commitment from both sides of politics to remove injustice in treatment of relationships, but it's not perfect and there's a lack of commitment when it comes to "marriage."

There are still parts of the law where defacto or registered are not treated the same as marriage. Some of those are important to some people (eg. adoption) which is why the push continues to allow same-sex marriage. There is also the societal recognition of a difference between marriage and a defacto relationship, which is another driver to allow same-sex marriage.

[Alien Son]

Unfortunately a large number of those who claim to be Christian (though their behavior does not support their claim) don't seem to know that the New Testament exists. At least that is my experience when they trap me in town a Saturday asking if I am saved. Every time I give them a quote in response to whatever bit of the Bible they are quoting at me they seem lost, I have found that Corinthians 13:4-8 is a total puzzlement to them.

Nigel

There's an old song that has the line, "They'll know we are Christians by our love, by our love" and immediately repeats the line. Sadly many of us show just the opposite - including me: there have been many times when my behaviour has been anything but Christian, leading me to make restitution or ask forgiveness. It seems that it wouldn't matter how many times the song repeated that line for all the notice those singing it take of it.

I think you mean First Corinthians 13. And you're right - many Christians habitually forget those verses.

John

[Alien Son]

I think the problem is the ones who don't think, either can't or won't, and allow themselves to be led astray by charismatic preachers whose purpose is anything but divine. Then these non-thinking people use the Bible to justify their behavior. So in that regard, I can certainly see why people, tired of those justifications and even more tired of the bad behavior, find reasons to dislike the book.

Yes, the Bible says to love thy neighbor. It also say stoning to death a woman who's strayed is the right and proper thing to do. And while we can condemn those who pick and choose from the Bible, they will do so. So in that regard, while the Bible may be a good book with good intentions, if it's not used for good -- if indeed it is used to justify evil -- then is there anything amiss in finding fault with it?

I agree that people should be held accountable for their behaviors, and blaming the Bible is a cheap trick that won't hold up in either a legal court or one of popular opinion. But this is still happening today in an age of more enlightenment than at any time in history. The Bible gets thrust in the face of congregations and used to further the power of the ministers, which is a wrong use, just as it's wrong to justify beheadings in the name of Allah because some people miss the spiritual basis of the Koran. But these things happen.

I personally feel organized religion causes more problems than it prevents, and the people among us who say every word in the Bible is the word of God and must be followed explicitly are a problem.

C

Cole, although my first reaction was to disagree with a couple of things you say, when I thought it through I realised that I pretty much agree with you.

However, I think you've misunderstood the bit about stoning the adulterous woman. The story is told in John chapter eight. The Jewish leaders, hoping to catch Jesus out, said "Teacher, this woman was caught in the act of adultery. In the Law Moses commanded us to stone such women. Now what do you say?" They misquoted, and selectively quoted, Leviticus 20:10, which says the penalty for adultery is death - of both the man and the woman; why did they not also bring the man to be punished? - but it doesn't mention stoning (I might be splitting hairs here, because stoning was the ordinary form of capital punishment, but it seems to have been reserved for offences against God himself). Jesus replied, "If any one of you is without sin, let him be the first to throw a stone at her." One by one the leaders went away, until only the woman was left. "Has no one condemned you?" he asked. "No one, sir," she replied. "Then neither do I," Jesus declared. "Go now and leave your life of sin." In other words, Jesus was saying (to quote the old saw): "Those who live in glass houses shouldn't throw stones."

Many times I've seen critics of Christianity and the Bible misquote scripture. I don't know whether that's wilful or simply lack of knowledge (more often the latter, I'd guess), but it seems apparent that Christians aren't the only ones who misuse/misinterpret the Bible.

[Nigel Gordon]

I think you mean First Corinthians 13. And you're right - many Christians habitually forget those verses.

Sorry John, your right I did mean First Corinthians, I suppose I could have quoted 1 Corinthians 13:13 as well but that depends on the translation you are reading. I still have the King James which translates the Greek text as .. faith, hope and charity..., however, my Christian friend who is also a Greek Scholar advises me that it should read ... faith, hope and love.