The Marriage Amendment Act: Can Australia Prohibit Same-Sex Marriage?

Both the United States and Australia have federal legislation, the Defense of Marriage Act and the Marriage Amendment Act 2004, that defines marriage as a union between a man and a woman. Australia has an express provision in its constitution granting Parliament the authority to pass laws on the subject of marriage. The United States, however, has no such constitutional provision. Consequently, Australia’s express constitutional provision may lead the High Court of Australia to rule that the Marriage Amendment Act 2004 is constitutional, which would likely preclude Australia’s states and territories from passing local same-sex marriage acts. This is fundamentally different than in the United States, where powers regarding marriage are reserved to the states. Therefore, even if the U.S. Supreme Court upholds the Defense of Marriage Act, laws that authorize same-sex marriage remain valid in states such as Massachusetts. Passing a law legalizing same-sex marriage in an Australian state, however, may force the issue before the High Court. A ruling upholding the constitutionality of the law may give Parliament the incentive to use its expressly granted constitutional authority to tighten restrictions on marriage and marriage-like entities even further. Therefore, same-sex proponents in Australia should approach the issue more gingerly than same-sex proponents in the United States. Instead of attempting to pass state same-sex marriage provisions and forcing a decision before the Australian High Court, supporters of commonwealth or state same-sex marriage laws should indirectly pressure Parliament to overturn the Marriage Amendment Act. In addition, they should continue to push for domestic-partnership protections at the state and commonwealth level