A Defeat For LGBT Rights in Australia. Or Is It?

A law legalizing same-sex marriage in Australia has done a flip-flop: The only five-day-old law, applicable in the country’s Washington, D.C.-like Australian Capital Territory, has been overturned by the federal government. The government holds that the country’s 2004 Marriage Act, defining marriage as heterosexual, takes precedence. During the five days that the law was valid, 27 couples were married, most of them in the Australian capital city of Canberra. The high court’s unanimous ruling Thursday said that same-sex marriage was a federal issue — not one for the country’s territories to decide.

The Marriage Act does not now provide for the formation or recognition of marriage between same-sex couples. That Act is a comprehensive and exhaustive statement of the law of marriage. 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 27 newly-married couples will now have their marriages annulled.

“This is personally devastating,” newlywed Ivan Hinton said. “In less than a week we’ve been married, we’ve been unmarried — at least on a legal level. As one of the absolutely beautiful couples behind me said, we’re still married. I’ve made a commitment to [partner] Chris [Teoh] to spend the rest of my life with him.”

But ACT lawmakers were expecting the ruling, considering it part of a long game to play for same-sex marriage legalization in the country. They also perhaps anticipated the furor that would erupt over reversing the ruling.

Because Australians are largely pro-gay-marriage, activists knew that the outcry — and the fact that the court would look pretty evil with this decision — would reignite the national conversation about same-sex marriage and put pressure on the government for a conscience vote legalizing it. It was a bold move: while it was painful for the 27 couples who got married, the strategy might just pay off in the long run.

The main obstacle right now seems to be the Prime Minister, Tony Abbott, who is actively against same-sex marriage, calling it the "fashion of the moment." But Australians largely favor gay marriage, with a Galaxy Research poll (an Australian marketing firm) finding that 64 percent of Aussies support it, up from 38 percent in 2004. The numbers are likely to continue going up, as 81 percent of Australia’s Millennials are in favor.

“This is just a temporary defeat,” said Australian Marriage Equality national director Rodney Croome. "What is far more important is that the ACT's law facilitated the first same-sex marriage on Australian soil and showed the nation the love and commitment of same-sex couples."