Australian Court Strikes Down Marriage Equality in a ‘Lost Opportunity,’ Says Atheist Group December 13, 2013

Australian Court Strikes Down Marriage Equality in a ‘Lost Opportunity,’ Says Atheist Group

Twenty-seven newlywed couples in Australia will have their marriages annulled just days after tying the knot, thanks to a recent decision by Australia’s High Court.

For five days beginning last weekend, same-sex couples could marry in Canberra after the city’s legislative assembly, called the Australian Capital Territory, passed a law in November legalizing marriage equality. But on Thursday, the Australian High Court ruled that the locally-passed law did not comply with the Federal Marriage Act — which doesn’t recognize same-sex marriages — and deemed the ACT law unconstitutional.

“The Court held that the Federal Parliament has power under the Australian Constitution to legislate with respect to same-sex marriage, and that under the Constitution and federal law as it now stands, whether same-sex marriage should be provided for by law is a matter for the Federal Parliament,” the court said in a summary of its judgement.

“The Marriage Act does not now provide for the formation or recognition of marriage between same-sex couples.

Not at all surprisingly, the Australian Christian Lobby and other Christian groups are at the center of the movement to take down marriage equality. Lobby member Lyle Shelton told Australia’s ABC1 that same-sex marriage is essentially a lost cause and he wants a referendum to take it completely off the table.

“If you redefine marriage you’re saying yes to the proposition that it’s okay for some children to be denied their natural mother and father,” he said. “I think that’s an injustice.”

He says same-sex couples should give up on marriage.

“They’ve pretty much exhausted all avenues through the democracy and the courts and I think it’s time to move on,” he said.

The Atheist Foundation of Australia released a statement denouncing the Court’s decision, calling it a disappointment and a “lost opportunity” that continues to treat LGBT people as second-class citizens. AFA President Michael Boyd rightfully commented that the decision perpetuates systemic inequality:

“Equal treatment under the law is a fundamental principle of a fair society. There is no rational reason to discriminate against same-sex couples and deny them the legal and social benefits of marriage. History rightly calls those who opposed other major steps towards legal and social equality — such as voting rights for women and Aboriginals, the decriminalisation of homosexuality — bigots. History will do the same with those who now oppose equality for GBLT Australians.”

As many advocates have pointed out, this roadblock doesn’t mean marriage equality is an impossibility in Australia. Some, like constitutional lawyer Anne Twomey, have even gone as far as to say this could ultimately help the movement in Australia. It simply means activists have to bring their efforts to the federal government in order to overturn the Marriage Act and achieve marriage equality nationwide. Plus, more people than ever are talking about marriage equality in Australia.

“I think most people would not want to turn our system into the American Supreme Court where all decisions on social issues are ending up in the High Court,” she said.

“It’s much better that the elected representatives of the people are the ones who get to decide on those sorts of issues.

“That’s the appropriate forum for this, not the High Court.”

The AFA also commented:

The ACT’s Marriage Equality Act was a welcome step towards equality, even though it was ultimately not successful. However, even if the Act had been declared valid it would not have been enough. Even in the ACT there would have been one law governing same-sex marriage and one law governing opposite-sex marriage. This cannot be true marriage equality. True marriage equality will only occur when the federal government amends the Marriage Act 1961 so it refers to a union of two people rather than a union of one man and one woman. The AFA looks forward to that day.

The most striking element of this story, though, is how the newly married couples are undeterred by the Court’s decision. While obviously disappointed, many have said that they still consider themselves married (one would hope!) and how they’ll continue fighting to have their relationships and those of their LGBT peers recognized. One such couple are Ivan Hinton and his partner Chris, who were married Saturday.

Ahead of the High Court’s decision Mr Hinton said they do not regret a thing. “The amazing thing for us, the unexpected thing for us is the community,” he said.

“The love that we’ve received from Canberra — and this is something that regardless of what happens here in the High Court — it was a celebration in this past week.

“We’ve been pulled up in the streets. We’ve been shaken by the hand, congratulated by people that we’ve never met before.”

There’s also this touching reaction from Michelle Stockwell and Anabel Scholes, who also married Saturday.

“We are quite disappointed that it hasn’t gone through now, but we’ve got our piece of paper, as far as we’re concerned we are married and we shall be for life,” they said.

“If we have to renew our vows then we can have another party.”

Though the timing of the decision is certainly a downer, this should spark a major call to action in Australia. As others have said, this is a perfect opportunity to strike while we’re all paying attention. Inequality is inequality, whether it’s local or federal, and it’s time to abolish it.

(Image via Shutterstock)

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What Are Your Thoughts?leave a comment
  • Castilliano

    What? Nobody’s denying them their parents!
    If anything, there will be more parental options to take in children. Not steal.

    That’s the same tactic Santorum pulled on Colbert, who, yes, brought up the kids who might not have their parents, which Santorum dodged.
    Do they not know the statistics? Divorce rates? Anything? (Rhetorical)
    Shutting out the real world so they can build their castles of sugar, as if prayer ever made the rain go away.

    But, actually, if it serves as a wedge to get it allowed for the whole country, all the better.

  • David

    The reason the opponents are increasingly calling for a referendum is because they know that most referenda in Australia fail – especially when the government of the day does not support the proposition, as is the case here. There simply is no legal or legislative need to hold a referendum on this topic.

  • Quintin van Zuijlen

    I am perfectly ok with kids being denied their natural parents. It’ll inevitably happen to some, so why worry about it? Ultimately natural parents are of no value to a child, loving, caring parents are. If a child can’t have natural, loving, caring parents, any other loving caring parent should do.

  • RJ (TO)

    At this point I’m sick of the whole “marriage equality denies children a mother and father” bullsh*t. (A) What about gay couples who have no interest or intention of raising children? and (B) Gay couples who want to raise children will raise children with or without marriage, just like they’re currently doing in places where there is no marriage equality. In other words, the “family values” warriors are not protecting kids from anything except not having their families humiliated by second-class status.

  • Guest

    At this point I’m sick of the whole “marriage equality denies children a mother and father” bullcrap. The obvious: (A) What about couples that have no intention of or interest in raising children? and (B) Couples that do want to raise children will raise children with or without marriage, just like they currently do in places that have no marriage equality. So the only things these “traditional values” warriors are protecting kids from is not having their family shunned as second class citizens.

  • MichaelNewsham

    Polls show that most Australians support marriage equality, yet politicians are afraid of the power of the churches.

    Given the current government, who knows how it would be framed.
    Like the referendum on the abolition of the monarchy, they’d probably put in several choices to split the pro-equality vote and then claim that plurality against should prevail over a majority for.

  • cameronhorsburgh

    I don’t think this is bad news for marriage equality at all.

    First, this particular legislation didn’t provide for full equality. It simply set up another system, also called ‘marriage’ that could only be enjoyed by same-sex couples. In other words, separate-but-(sort of but not really)-equal.

    Second, the High Court headed off a possible challenge should marriage equality ever be enacted federally. I got the impression that the Court was pretty well winking at the marriage equality movement, suggesting that they have no problem with the idea, provided it’s enacted in the appropriate jurisdiction.

  • MichaelNewsham

    Sorry, misremembered the 1999 referendum. What the government, which was opposed to the abolition of the monarchy, in fact did was put an unpopular alternative in the referendum question.

    The majority of Australians supporting a republic wanted a directly-elected president, so instead of asking “do you want to abolish the monarchy and establish a Republic” the government wording was:

    “To alter the Constitution to establish the Commonwealth of Australia
    as a republic with the Queen and Governor-General being replaced by a
    President appointed by a two-thirds majority of the members of the
    Commonwealth Parliament.” ,
    knowing that many Republc-supporters opposed having the choice of Head of State left to Parliament.

    The current Government would probably ask something like “Do you think the law should be amended from “marriage is between a man and a woman” to “anybody can marry anything, including wallabies and wichety grubs.” “

  • fry

    The court’s ruling was purely about jurisdiction & legally correct. So counter to that atheist group’s claim, there was no opportunity to be lost in this case. Aussies are generally quite liberal on social issues and disdainful of Bible thumpers. Sooner or later I expect marriage equality will happen.

    Agree that New Zealand has nicer mountains, but half their population have moved here – I guess jobs and beaches win.

  • AxeGrrl

    Bob Newhart headlining an anti-gay group’s event (appearing with Mr Frothy-Mix, Rick Santorum AND Bill Donahue) Why Is Bob Newhart Headlining A Conference Run By An Anti-Gay Christian Group? ….and this……

    Talk about a deeply disappointing week 🙁

  • Posted this before and I’m going to post it again. My daughter with her two gay Aunts who she was raised around and those two awesome gay women raised a son who turned out like any other kid would.

    Thankfully these two can get married if they desire, which should happen in 2014.

  • Anna

    “If you redefine marriage you’re saying yes to the proposition that it’s okay for some children to be denied their natural mother and father,” he said. “I think that’s an injustice.”

    Sigh. When are these people ever going to get it through their thick skulls that denying same-sex couples marriage licenses will not stop them from having or raising children? Have they even bothered to think through their argument? It makes no sense. Children of same-sex couples exist and will continue to exist regardless.

    Obviously, they prefer to see the children of same-sex couples stigmatized and delegitimized, all in the name of it not being “okay” for them to be denied their “natural” mother and father. But how is that in the best interests of such children? Even if they believe these children are disadvantaged, how would it benefit them for the government to make their lives harder?

  • Anna

    Of course, even if they hadn’t raised a son who “turned out like any other kid,” denying them a marriage license wouldn’t have changed anything. Their son would have grown up in a same-sex family regardless of whether his parents’ union was sanctioned by the state.

  • Finn Nicolas

    If you guys are so against bible thumpers, how come you only fucking elect catholics.

  • Anna

    These people think that if a child is intentionally conceived and then raised by anyone other than the man who provided the sperm and the woman who provided the egg, then that child being discriminated against.

    I’ve never understood how they can think that way. They would obviously prefer for people like me (conceived by sperm donor) not to be created in the first place. That the world would be a better place if we simply didn’t exist? That it’s unfair to me that I exist, even though I had a good childhood and am more than happy to be alive? Aside from everything else, it’s hideously arrogant of them to proclaim that my conception was such an “injustice” that I just shouldn’t have been born at all.

  • fry

    You mean elect fucking Catholics? Until very recently we had an atheist, female Prime Minister. More research required.

  • I wonder how long until Lyle Shelton comes out of the closet.

  • Brodestar

    Well thats a shame. I thought they were more progressive in Australia. I hope the LGBT community continues their fight for equality.

  • Robster

    He’s only in there because he’s a nasty piece of work and as a result is highly undesirable.

  • momtarkle

    The Australian court did exactly the right thing. Now those 54 members of the 27 same sex marriages will go find 54 opposite sex “mates” (Hey, it’s Australia!), and marry them. Then, all of the other non-hetros in Oz (if there are any) will see the error of their ways and do the same. Things will go back to normal, as God intended. Problem solved.

  • I’m appalled by the court’s decision, and I’m voting with My wallet. Australia’s not getting a single wine purchase from Me until the Marriage Act has been amended or dumped, and SSM is legal everywhere in Oz.

  • [Lobby member Lyle Shelton] says same-sex couples should give up on marriage.

    When your opponent begins to suggest that you should give up, he’s inadvertently telling you that he’s running out of ammo and strength. Take it as encouragement, and fight on!

  • indorri

    Y’know, at some point, we really have to fix this flaw with humans fucking up abstractions and being susceptible to meaningless key phrases because they happen to trigger some area of the brain that happen to share the same words. Because frankly, the exploitation of this flaw either by malicious bastards or useful idiots is turning me into a misanthrope, which isn’t helped by this piece of trash.

  • trj

    As for point B, rest assured opponents to gay marriage would love to make it harder for the couples to adopt, conceive, and raise children – all in the name of protecting the children, of course.

  • Finn Nicolas

    The current prime minister and the one before him were both Catholics. The one before that was an unmarried, female atheist who lived with her boyfriend, and who was still against gay marriage. Then you decided that she wasn’t good enough and you got a Catholic in. That Catholic did actually change his mind on gay marriage and said that he had no problem with it. Then you decided that he wasn’t good enough and you elected a conservative Catholic who wants to use his religion to bully people. You can’t really say that you are a very liberal country, disdainful of bible thumpers if you vote out the liberals and the atheists and vote in the conservative theocrats.

  • fry

    So you hate Catholics and those who might vote for them? each to their own I guess.

    Anyway, reverting to relevance, you may find the following educational, but I suspect your “mind” is made up.


    Extract as follows. For several years a majority of Australians have supported marriage equality.

    Galaxy Research polling (2009-2012) shows:

    – 64% of Australians support marriage equality,
    – A majority of Christians (53%) support marriage equality,
    – 76% of Coalition voters want Abbott to allow a conscience vote,
    – 75% believe the reform is inevitable, and
    – 81% of young people (18-24 years) support marriage equality.

  • Muddy Mudskipper

    Australia is in the clutches of nationwide apathy, especially among the youth. It’s rather depressing.

  • Finn Nicolas

    I don’t “hate Catholics and those who vote for them”. I hate many of the teachings of the RCC and believe that anyone who is properly following its teachings should not be the head of any modern, secular democracy. I’m glad that you’re optimistic about the possibility of marriage equality in your country, but I also think that polls are really, really bad at showing public opinion. There are so many factors that must be taken into account. But I guess what I think doesn’t really matter in the long run. You actually live there, I’m just some douchebag on the internet, shouting at you from New Zealand. And if you think that Australia can do it, then that’s just fucking great.

  • RJ (TO)

    I hear ya. Fortunately “would love to” isn’t the same as “done deal”.

  • JT Rager

    Children have a right to a mother AND a father! Because as we all know, the effectiveness of a pair of parents is a function of the diversity of genitalia in the pair.

  • Ibis3

    And yet, and yet, they don’t advocate that pregnancies of single mothers conceived in the traditional way be terminated so as to avoid the “injustice” that *they* should be born at all. Instead, those children should be the woman’s punishment for having sex. It’s hypocrisy and warped thinking all the way down.

  • Spuddie

    Say it ain’t so Bob.

  • Kevin R. Cross

    I’d be interested to see what would happen if one of the STATES made marriage equality laws. The ACT is only a territory, and thus beholden to the federal government, but the states are much less so.

  • I hadn’t even thought of that. Not only are they denouncing adoption and out of wedlock pregnancies, but unplanned pregnancies. “Accidents” probably account for the majority of our species!

  • Mogg

    Last time I checked, Rudd was an Anglican.

  • Mogg

    The states all defer to the federal Marriage Act explicitly. This could only have been attempted in one of the Territories.

  • Mogg

    We are un the unfortunate position of having a federal government much, much more conservative than the population as a whole. Polling consistently shows public support of same-sex marriage is very strong, and a lot of people were extremely disappointed that the previous government didn’t alter the Act whilst in power. Unfortunately, as it was a minority government it probably would have lost, which may be a reason why they didn’t.

  • Anna

    I think that’s the reasoning behind many religious conservatives’ harsh attitudes towards the poor, particularly single mothers. It’s sort of like “those sluts made their own bed, now they have to lie in it.” That’s why a lot of them pressure young women to place their babies for adoption, too. The idea is that a single mother is inferior, so the baby should clearly be raised by a “superior” married heterosexual couple instead.

    They don’t care about actual children, not poor children, and not children from same-sex families. I really think it’s more about punishment and vengeance than anything else. They can’t stop single women from having and keeping their babies. They can’t stop gays and lesbians from having and raising babies. So they just want to make their lives as difficult as possible, to let them know that they made a “bad” choice and shouldn’t expect any help or recognition. Never mind how that adversely affects the children involved.

  • Anna

    Many of them dodge the implication that they are condemning single mothers by focusing on the intentional part. So a single mother who got herself “in trouble” is excused because at least she didn’t do it on purpose. But a gay or lesbian couple who decides to bring a child into the world, well, they knowingly did an “injustice” to their child, and therefore they shouldn’t expect any sort of legal recognition for making a “bad” choice.

  • Guest

    Its all part of the notion that their phony sense of smug moral superiority is more important than what happens to actual people in real situations.

    Single mothers, women who want abortions and gays are somehow morally inferior so they have no rights worth considering. Their decisions don’t matter compared to the upright finger pointing Christian types.

  • Spuddie

    Its all part of the notion that their phony sense of smug moral superiority is more important than what happens to actual people in real situations.

    Somehow Single mothers, women who want abortions and gays are somehow morally inferior so they have no rights worth considering. Their decisions don’t matter compared to the upright finger pointing Christian types.

  • Kevin R. Cross

    Yes, but I seem to recall that deferance being voluntary (as with the firearms legislation). I doubt any of the states would have the courage to do it, I just wonder what the High Court would say if they tried.

  • Brodestar

    That sounds like how it is in here in the U.S. Polls are much stronger then they were even 10 years ago for equality at least for the LGBT community. Eventually we may get to true equality if we just keep working towards it.

  • Brodestar

    First of all being gay is not a choice or some affliction or disease as science has clearly shown. Second what makes you think that their feelings toward the ones they love can be changed simply because the law currently disagrees with them? I find your comment highly offensive despite not being homosexual myself. It should not matter who they choose to love they deserve equal rights as citizens of that country.

  • UWIR

    When has a government ever failed to alter reality through legistlative fiat? Not everyone subscribes to the same understanding of reality as you. I find your intolerance towards those who choose to live in a reality different from the one that you inhabit to be offensive.

  • allein (Vombatiformes)

    momtarkle was being sarcastic.

  • Mogg

    I doubt they would either. And I would in many ways prefer that they didn’t – I think it would be better to have it done under federal law, and uniform across the country.

  • UWIR

    I find your last sentence a bit odd. I’m not very familiar with Australian politics, but I don’t see why there would be any need for “winking” for it to be understood that the Court would not have any basis for striking down an act made by the highest legislative body in the land. I don’t see any reason to suppose that the basis for the ruling was that the territorial act violated the national one, rather than any personal animus that the Court has for SSM.

  • UWIR

    Don’t forget the clause abolishing all age-of-consent laws!

  • Brodestar

    Legislating morality has never worked out for everyones benefit. Suppressing who people choose to spend their lives with is wrong no matter what reality you choose to live in.

  • UWIR

    There’s also the word “okay”. “Okay” in the sense of “no concerns whatsoever”, or “okay” as in the sense of “not such a serious problem that we need the government stepping in and having regulations that are only tangentially related to ‘fix’ this supposed problem”? It’s a fascist strain of thinking, that disapproval cannot be properly conveyed without the force of law.

  • momtarkle

    Damn, you’re on to me. What was it that gave me away?

  • momtarkle


  • Brodestar

    I wasn’t quite sure where you were going with Oz but I stand by my statement that it’s offensive to me to think that people will simply change how they feel just because a law is not currently on their side.

  • momtarkle

    I don’t know of anybody that does that, but my heart has a tiny ache for your offense.

  • Mogg

    I find the idea of a basic human right being put to referendum rather disturbing on several levels, but not as disturbing as the idea of marrying a witchety grub.

  • cameronhorsburgh

    You’re probably right. I don’t really know how these judgments are written. The finding that the word ‘marriage’ doesn’t have to mean the same now as it did when it was first put in the constitution is relevant to the case, so I might just be thinking wishfully.

    Still, it’s interesting that the Court was so clear about this point, given it seems to be the main legal argument against Federal legislation for same-sex marriage. There are politicians who aren’t against same-sex marriage per se, but are genuinely concerned it won’t hold up. This judgment will give them a lot more confidence next time it comes up.

  • Castilliano

    Is this to me? I guess so.
    I agree, this is one where the government should more step back, then step on.

  • Kevin R. Cross

    Undoubtedly. But If we can’t have that, a state by state basis for marriage equality would at least be a good start.

  • Pseudonym

    The previous Catholic was in favour of marriage equality, and the previous atheist was against it.

    Not all Catholics are bible thumpers. Just this one.

  • Pseudonym

    The court’s ruling was purely about jurisdiction & legally correct.

    Correct. However, one rather important detail has been lost in the discussion.

    Remember how the ACT government was all on about “we have a brilliant legal strategy but we’re not going to tell you what it is before the court hearing”? Well, it happened.

    Under the constitution, the federal government has the power to regulate marriage. In order to overturn the ACT’s legislation, the federal government had to argue that same-sex marriage is “marriage”, under the constitution. They had to do this because nothing else would give them the power to regulate it. And the court found that this is indeed correct.

    So the next time someone tries the “changing the definition of marriage” argument on you, you can tell them that they are legally incorrect and both Abbott’s government and the High Court said so.

  • Pseudonym

    I thought they were more progressive in Australia.

    The majority are. Australia is undergoing a bit of a weird time politically at the moment. Support for the major parties is at an all-time low, and the current government only made it in because of the way preferences flowed from a new (and so far, relatively sane) centre-right party.

  • Pseudonym

    Oh, and that’s why it would take a referendum to redefine marriage as being only between a man and a woman.

  • Pseudonym

    To the Australians around: Is this the first time you’ve heard of the AFA?

    Yeah, me too. I’ve been following the marriage equality debate very closely, since it’s quite personal to me. This is the first time I’ve heard anything from any atheist organisation, and it was one I’ve never heard of.

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