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Australia’s First Same-Sex Marriages Ruled Invalid by Court

Same-sex Marriage
Chris Teoh, third left, and Ivan Hinton, third right, with marriage celebrant Roger Munson, center, and their parents witnessing, exchange vows during their marriage at Canberra's Old Parliament House in Canberra on Dec. 7, 2013. Photographer: Andrew Taylor/AFP/Getty Images

Australia’s first same-sex marriages are invalid and unconstitutional, the nation’s top court ruled today in a lawsuit driven by Prime Minister Tony Abbott’s government.

The High Court ruled the legislation passed by the Australian Capital Territory was “inconsistent” with federal marriage laws, effectively nullifying ceremonies performed in the capital, Canberra, in the past week.

“This is personally devastating,” said Ivan Hilton, 38, who married Chris Teoh, 34, on Dec. 7, the same day they were legalized in the territory. “In less than a week we’ve been married and we’ve been unmarried, at least on a legal level.”

Abbott, whose sister is gay, and his Liberal-National coalition argued that the legislation was unconstitutional because the federal government has the responsibility to define marriage and ensure the definition is uniform across the country. About 30 same-sex weddings were performed in the capital territory in the five-day window between the law being passed and today’s ruling.

“This result seemed inevitable because Australian laws dictate that marriage laws are created by the federal government,” said Malcolm Mackerras, a political analyst at the Australian Catholic University in Canberra. “It’s possible that in the future the Commonwealth parliament will enact laws to legalize same-sex marriage but it doesn’t seem likely under Tony Abbott’s prime ministership.”

Canada, France

With Australia’s major political parties currently declining to back same-sex marriages, the ruling means it may be years before Australia follows nations including Canada, France and South Africa in allowing such unions. Gay-rights’ lobbyists were hoping a positive ruling would lead to other states and territories passing similar laws and put pressure on federal lawmakers to pass legislation.

While no other Australian state or territory allows such ceremonies, Tasmania recognizes same-sex marriages performed in other jurisdictions. U.K. Prime Minister David Cameron’s bill to allow same-sex marriage in England and Wales passed in July, after France enacted similar legislation in May. Canada and South Africa made gay marriage legal in 2005. In the U.S., 15 states and the District of Columbia recognize same-sex unions.

India’s top court delivered another setback to gay rights yesterday by upholding a 153-year-old colonial-era law that criminalizes homosexual sex in the world’s second-most populous country.

First Ceremonies

Australia’s first same-sex marriages took place on Dec. 7 at 12:01 a.m. Stephen Dawson, Labor party member of Western Australia state’s legislative council, and his partner Dennis Liddelow were among the first couples tying the knot outside Parliament House in Canberra, the Canberra Times reported.

Today’s ruling was important because it showed the federal government could determine and change marriage laws, said Rodney Croome, the national director for lobby group Australian Marriage Equality. He called on federal parliamentarians to legalize same-sex marriage at a national level.

“There is no going back from here,” Croome said. “For the first time ever, same-sex couples have married on Australian soil. That has been a huge step forward and one from which there is no return.”

Federal Law

Australia adopted the federal Marriage Act in 1961 to provide uniformity and rid itself of a patchwork of state laws that regulated marriage, divorce and other matrimonial causes.

“A lawful marriage for the purposes of Australian law must have the essential characteristics as determined by Commonwealth law from time to time, including presently of being a union between a man and a woman,” the federal government argued at the High Court.

David Hay, a 50-year-old Canberra carpenter and evangelist, took time off work today to protest against same-sex marriages outside the court.

“I feel sorry for them because they must be hurting,” Hay said of the same-sex couples whose marriages were ruled invalid. “The majority of Australians want to keep marriage the way it is, between a man and a woman. That goes beyond religious lines.”

The case is The Commonwealth of Australia v. The Australian Capital Territory. C13/2013. High Court of Australia (Canberra).

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