Updated: 12/12/2013 18:29 | By Agence France-Presse

Australia's top court overrules gay marriage in capital

Australia's top court Thursday struck down gay marriage in the nation's capital, ruling that parliament must decide on same-sex unions -- to the anguish of dozens who have wed under a landmark law.


Australia's top court overrules gay marriage in capital

A same-sex couple walk past a religious protester (back R) outside the High Court of Australia, Canberra on December 12, 2013

In a unanimous judgment scotching the Australian Capital Territory's new same-sex marriage law, the High Court ruled that only parliament -- not state and territory authorities -- had the power to decide who could wed. 

The ruling dashed the hopes of same-sex couples and campaigners who had banked on the ACT legislation paving the way to a national law permitting gay marriage, a decade after the federal government defined wedlock as strictly between a man and a woman.

Polling commissioned by marriage equality campaigners puts support for same-sex marriage in Australia at 64 percent, but the nation continues to lag behind a growing number of countries on the reform including neighbouring New Zealand, Britain and 16 US states.

"The Marriage Act does not now provide for the formation or recognition of marriage between same-sex couples," the court said. 

"That Act is a comprehensive and exhaustive statement of the law of marriage," it added.

"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."

There were tearful scenes outside the Canberra courthouse as some of the 27 couples who wed under the month-old law learned that their vows were to be annulled.

"In less than a week we've been married and we've been unmarried, at least on a legal level," a "devastated" Ivan Hinton told reporters, fighting back tears. 

Hinton married his partner of 11 years Chris Teoh at Old Parliament House on Saturday, one of the first weddings to be conducted under the ACT law. 

"We're still married. I've made commitments to Chris to spend the rest of my life with him, through sickness and through health, in the good times and in the bad. Today's not particularly good," Hinton said.

Gay marriage was explicitly outlawed under a 2004 revision of the national Marriage Act by the conservative prime minister at the time, John Howard. Since then, the issue has gained increasing national traction. 

'Victory' still at hand

Same-sex couples can have civil unions or register their relationships in most states across Australia, but the government does not consider them married under national law. 

For legal purposes they are considered de facto couples and have exactly the same rights as married couples. Campaigners, however, insist that the right to marry is a more fundamental human right. 

Despite Thursday's court ruling, veteran gay rights campaigner Rodney Croome said social progress could not be undone.

"Although there's been a defeat for marriage equality in the High Court today this week, we've seen a much greater victory," an emotional Croome said.

"For the first time ever same-sex couples have married on Australian soil. That has been a huge step forward and one from which there is no return."

The ruling had also given campaigners a clear path forward, Croome said, putting the ball squarely in the parliament's court, and affirming for the first time that lawmakers "definitely" had the power to legalise same-sex marriage.

"Many people had assumed that until now, but it has never been declared by the court," he said.

Others also took heart from the court's declaration that, while the Marriage Act was restricted to male-female unions, the constitution did not inherently exclude same-sex couples from the definition of "marriage", underscoring that it was a political rather than legal issue. 

But religious groups including the Australian Christian Lobby welcomed the ruling, saying the issue was irrelevant to most Australians and it was "time to move on". 

The conservative government of Prime Minister Tony Abbott is opposed to gay marriage, despite Abbott's sister being a lesbian who hopes to marry her partner.

Attorney-General George Brandis welcomed the decision and urged MPs to "uphold and respect" the ruling, which he said went to the question of uniform marriage legislation. 

"The proceedings in the High Court have never been about the desirability or otherwise of same-sex marriage," he said.

The Labor opposition called on Abbott to allow a conscience vote on the issue, where lawmakers would be free to cast on personal rather than party lines.

A previous ballot in September 2012 failed by 98 votes to 42, after Abbott imposed the party line on his MPs.

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