Same-Sex Marriage Ban Challenge Tossed by Australia Judge

An Australian judge threw out a challenge to the nation’s ban on same-sex marriage, ruling it doesn’t amount to gender discrimination.

Neither gay men nor lesbians are allowed to marry under the legislation and thus both sexes are treated equally, Federal Court of Australia Justice Jayne Jagot said in her ruling in Sydney yesterday.

“A man cannot enter into the state of marriage as defined with another man just as a woman cannot enter into the state of marriage with another woman,” the judge wrote. “The redress for these circumstances lies in the political and not the legal arena.”

A private member’s bill that sought to amend Australia’s marriage act to allow gay and lesbian couples to marry was defeated in the nation’s parliament in September, with Prime Minister Julia Gillard and Treasurer Wayne Swan among governing Labor party members joining the opposition coalition in defeating the legislation by 98 votes to 42. U.K. Prime Minister David Cameron earlier this month won a vote to legalize gay marriage in England and Wales, splitting his Tory party in the process, while France’s lower house voted in favor of legalizing gay marriage on Feb. 12.

In her ruling, Jagot upheld the Australian Human Rights Commission’s decision to terminate a complaint from Simon Margan, a gay rights activist who sought an order directing the states of New South Wales and Queensland to register same-sex marriages.

Opposite Sex

Sex discrimination depends on a comparison between the treatment of the person of one sex with the treatment of the opposite sex, Jagot wrote in her ruling.

“There cannot be discrimination by reason of the sex of a person because in all cases the treatment of the person of the opposite sex is the same,” she wrote.

In Australia, the Marriage Act defines marriage as the union of man and a woman to the exclusion of all others, Jagot wrote.

“By statutory definition, persons of the opposite sex may marry and persons of the same sex may not,” the judge said.

In the U.S., every New England state except Rhode Island as well as Iowa, Maryland, Washington and District of Columbia allow gay marriages. Canada’s Supreme Court approved same-sex marriage in 2005. In the U.K. the same-sex marriage bill must still be approved by the upper House of Lords to become law.

The French vote was preceded by a Jan. 13 protest that drew about 340,000 opponents under the Eiffel Tower, according to police. Organizers said more than 800,000 people protested the law.

The case is Simon Margan v. President, Australian Human Rights Commission. NSD1203/2012. Federal Court of Australia. (Sydney).