A Collaboration with the University of Pittsburgh

Australia judge rejects challenge to same-sex marriage ban

An Australian judge ruled [judgment] Thursday that the nation's ban on same-sex marriage [JURIST news archive] does not amount to gender discrimination, dismissing a challenge to the law. The ruling upholds the decision of the Australian Human Rights Commission (AHRC) [official website] to terminate the complaint of sex discrimination under the Sex Discrimination Act of 1984 [text] on the grounds that it was "misconceived and/or lacking in substance." Justice Jayne Jagot of the Federal Court of Australia [official website] held that there was no gender discrimination in this policy, because men and women were both equally denied the right to marry a person of the same sex:

The inescapable fact is that s 5 [of the Sex Discrimination Act] defines sex discrimination in a manner which depends on a comparison between the treatment of the person of one sex with the treatment of a person of the opposite sex. In the present case, the alleged discriminatory treatment results from the fact that the relevant agencies of the State can register a "marriage" which is defined by s 5(1) of the Marriage Act 1961 [text], ... as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. It follows that the union of a man and a man or a woman and a woman to the exclusion of all others, voluntarily entered into for life, is not a "marriage" as defined in the Marriage Act and cannot be registered by the State agencies as a marriage. In the terms of s 5 there cannot be discrimination by reason of the sex of a person because in all cases the treatment of the person of the opposite sex is the same. Hence, a man cannot enter into the state of marriage as defined with another man just as a woman cannot enter into the state of marriage with another woman as defined. ... The redress for these circumstances lies in the political and not the legal arena because what would be required is a change to the definition of "marriage" in s 5(1) of the Marriage Act.
Legislation aimed at allowing same-sex marriage was rejected [JURIST report] by the Australian Parliament in September, despite polls [SMH report] showing that most Australians support same-sex marriage.

Same-sex marriage remains a controversial issue around the world. Earlier this month lawmakers in both France and the UK [JURIST reports] approved bills that would legalize same-sex marriage. Same-sex marriage is currently recognized in nine US states and the District of Columbia, and lawmakers in Illinois and Rhode Island [JURIST report] have recently given approval to same-sex marriage legislation. In December Uruguay's lower house of parliament approved a same-sex marriage bill that would make Uruguay only the second Latin American country to allow same-sex marriage, following Argentina [JURIST reports]. Same-sex marriage has been legal in Mexico City since 2009, and last year the Supreme Court of Mexico struck down [JURIST reports] Oaxaca's same-sex marriage ban, which could pave the way for legalization across the country.

About Paper Chase

Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

© Copyright JURIST Legal News and Research Services, Inc., 2013.