The Legal Evolution of Same-Sex Marriage Rights

With the US and other nations finally legalising same-sex marriage and the potential for a plebiscite in Australia’s near future, the tide appears to be turning towards same-sex marriage rights globally. So what has been the legal evolution of marriage rights and the push for equality in Australia and abroad?

Love and marriage, horse and carriage

It all began with the Marriage Act 1961 (Cth).

Until 1961, marriage had been regulated by state and territory law and there were nine separate and diverse systems of marriage law in Australia. Upon introducing the federal legislation, the Attorney-General Sir Garfield Barwick stated the main purpose was to: “Produce a marriage code suitable to present-day Australian needs, a code which, on the one hand, paid proper regard to the antiquity and foundations of marriage as an institution, but which, on the other resolved modern problems in a modern way.”

The Act now defines marriage to mean “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”, although it’s interesting to note that the definition was only inserted in 2004, its stated purpose being to reflect “the understanding of marriage held by the vast majority of Australians”.

Given 2014 polls show 72 per cent of Australians support gay marriage, the question remains: does the law still reflect our understanding of marriage?

The push for reform

As the push for reform becomes stronger every day, it seems clear that Sir Barwick’s marriage code is no longer suitable for Australian needs.

Since the enactment of the 2004 amendments to the Marriage Act, the issue has resurfaced several times with both the Australian Democrats and the Australian Greens introducing private member’s bills to allow same-sex marriage.

Wide-ranging 2008 and 2009 reforms resulted in equal entitlements for same-sex couples in areas like social security and superannuation, but that didn’t extend to the right to say “I do”.

Legal uncertainty: Constitutional matters

Section 51(xxi) of the Commonwealth Constitution provides that the federal parliament has power to make laws with respect to “marriage”. That power is not further defined by the Constitution and the High Court has not said what this term means.

The key question is whether federal power is limited by the view of the 19th century constitution framers that “marriage” means a union only between a man and a woman, or whether it has evolved to encompass other relationships.

George Williams, professor of law at the University of New South Wales, says the bottom line is that whichever parliament first legislates for same-sex marriage, a High Court challenge will likely follow. But perhaps the highest court in our nation should address this issue, as well as our parliament, given the public sentiment.

What the rest of the world is up to

A growing number of countries have allowed same-sex marriage, including New Zealand, the Netherlands, Argentina, Canada, South Africa, Sweden, England and Wales, France, Ireland and the US. With Australia now lagging behind, what options are available to us? If the government is so determined not to pass these laws, why not just bypass the Commonwealth?
Can the states do it?

According to constitutional lawyer Anne Twomey, the states could pass laws to legalise gay marriage but that law may be inoperative (until the High Court decides) because it is inconsistent with the Marriage Act.

Let’s decide once and for all, shall we? Perhaps an Australian state can run the gauntlet like South Australia did in 1894 when the Adult Suffrage Bill was passed and women (with the exception of Aboriginal women, who had to wait until 1962) were granted the right to vote. It wasn’t long before the federal government changed its tune.

If a law is passed to introduce same-sex marriage rights, the new definition could likely be this: “Marriage means the union of two people, regardless of their sex, sexuality or gender identity, voluntarily entered into for life.”

Has a pretty nice (and non-discriminatory) ring to it, doesn’t it?

Jacqueline Jubb is a Sydney-based lawyer, freelance writer, copywriter and entrepreneur. Jacqueline’s legal career has allowed her to enjoy diverse roles such as In-House Legal Adviser for the Law Society of London and Wales, criminal prosecutor at the Office of the Director of Public Prosecutions in Sydney and corporate litigator in Newcastle.

In 2015, Jacqueline launched her copywriting consultancy, Florence in Heels, to help transport brands from ‘blah’ to ‘beautiful’. Jacqueline now writes for a range of online and print publications such as Mamamia and White Magazine as well as a host of corporate clients including Owners Collective, LinkedIn, Thomson Reuters and Travel Your Way.

You can connect with Jacqueline at or on Instagram @florenceinheels.


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