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In defence of state and territory same-sex marriage laws

By Rodney Croome - posted Thursday, 19 September 2013


The ACT Government has announced its intention to pass legislation within weeks to allow same-sex couples to marry.

NSW is also expected to move forward soon with the blessing of Premier, Barry O'Farrell.

Same-sex marriage legislation, narrowly defeated in the Tasmanian Upper House last year, will soon be re-introduced, as will parallel legislation in South Australia.

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By the end of the year, somewhere in Australia, same-sex couples will begin to marry and the debate will have changed forever.

Images of happy couples and their celebratory families will do more than anything else to dispel the doubts of those unfamiliar with same-sex marriages and undermine the fear-mongering of those opposed to such marriages.

The small minority of Australians deeply antagonistic to marriage equality know the first state or territory marriages will be a turning point so they will do all they can to stop them.

They are already urging the Abbott government to step in and pass overriding legislation through federal parliament.

This could take the form of a) a general amendment to the Territory's Self Government Act limiting its power to make marriage laws, b) legislation specifically overriding the Territory's Marriage Equality Act, or c) an amendment to the federal Marriage Act stating explicitly that the states and territories can't enact same-sex marriage laws because the Marriage Act "covers the field".

My hope is that Mr Abbott respects the ACT Government's mandate on this issue in the same way he expects respect for his mandate.

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The esteem in which he holds the Constitution should see him step aside and allow the High Court to independently umpire the question of whether states and territories can pass laws for same-sex marriages.

The esteem in which he holds traditional institutions like marriage should soften his concern about the marriages of those couples who seek only to share and uphold that tradition.

But if the Federal Government does move against the ACT, or against all the states and territories together, attention will shift to Labor.

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About the Author

Rodney Croome is the National Convenor of Australian Marriage Equality and was made a Member of the Order of Australia in 2003 for his gay rights advocacy. He is co-author of Why vs Why: Gay Marriage.

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