The Exclusivity of “Marriage”: State Stagnating Debate - Exclusive Week


By Nicole Stinson

Photo courtesy of Mike Licht.

Prominently debated since the ‘70s, the same-sex marriage debate has steamrolled in the last decade with legalizations across the world including England, Canada, and New Zealand.

What do they all have in common? Well, as countries they were unified in their legalization of same-sex marriages. Something the US and Australia are struggling to do.

Earlier this year England and Wales passed the Marriage (Same Sex Couples) Act, while Canada has allowed same-sex marriages since 2005.

On the other side of the world, 100 New Zealand same sex couples tied the knot since it was legalized in April this year.

The same cannot be said for the US and Australia, where federal changes to marriage laws are being held up by their states and potentially the capitol territory in the case of Australia.

Fourteen states and Washington, DC have legalized same marriage. Meanwhile for Australia it is just the Australian Capital Territory (ACT) — their equivalent of the American capitol — and even their lone allowance for marriage equality is under fire by the Australian federal government. The first state to allow same sex marriage in the US was Massachusetts in 2003.

According to Richard Carlbom, director of state campaigns for Freedom to Marry, there are three possible paths in securing this legalization.

“We saw successful ballot measures in Maine, Washington, and Maryland in 2012,” he tells BTR.

Changes to state legislation and litigations through courts of law are also used, he says. The legalization of same sex marriage in Massachusetts was achieved through court order and similarly, last month the same was done in New Jersey.

One of the greater victories in the campaign for equal opportunity to marry, according to Calborm, occurred in June when the US Supreme Court struck down clause three of the Defense of Marriage Act (DOMA).

“This means that if a same-sex couple gets married in New Jersey where it is now that legal and then they travel to a state that doesn’t have the freedom to marry like Florida, that couple can still get some federal freedoms like immigration status for a spouse or federal health care benefits.”

“Anytime we can increase the presence and support for same-sex couples who are legally married, no matter the state, the more we create a climate of national resolution,” he explains.

While the US federal government does not have complete control over how states define marriage, only allowing states to legalize it on their own, in Australia it is a different story. This might explain why changes to federal laws on marriage are moving slightly faster in the US.

“Marriage is deemed in the Constitution to come under the jurisdiction of the federal government in Australia,” explains Christine Forster, a member of the City of Sydney Council and advocate for marriage equality.

“The states and territories such as New South Wales, Tasmania, and the Australian Capital Territory, which have introduced their own Acts, are trying to circumvent that restriction by legislating specifically for same-sex marriage,” she tells BTR.

In layman’s terms, they are trying to bypass federal law on marriage by independently creating their own legislation on same sex marriage.

An issue that is close to home for Christine Forster, as she hopes to one day marry her girlfriend-now-fiancée of four years, Virginia under federal law some day. Ironically, her brother is the Australian Prime Minister Tony Abbott who is seeking to prevent it.

Since the ACT became the first jurisdiction in Australia to allow gay marriage, the legislation will come into effect this week. However, marriages cannot begin until next month as part of the one month notice of intent clause.

This has outraged the Australian government led by Abbott, as it is inconsistent with federal law. They will be challenging the Marriage Equality (Same Sex) Act in Australia’s High Court next month.

Current Australia federal law defines marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life,” in an amendment made by the administration under Prime Minister John Howard in 2004.

“We’ve decided to insert this into the Marriage Act to make it very plain that that is our view of a marriage and to also make it very plain that the definition of a marriage is something that should rest in the hands ultimately of the parliament of the nation,” Prime Minister Howard said upon passing the law seven nine years ago.

The constitutional challenge currently before the Australian High Court could lead to the nation voting to change how the nation defines marriage if they rule in favor of the ACT’s Marriage Equality (Same Sex) Act.

“In order to achieve marriage equality in Australia, however, we need to have reform of the federal Marriage Act, and we are still a long way off that happening, unfortunately,” Forster says.