State-based Marriage Equality Legislation – No Commonwealth challenge

The majority voted against a motion to ask the Gillard Government to “rule out a Commonwealth challenge of any state-based marriage equality legislation”. This means that the majority believe that the Government should be able to challenge state same-sex marriage laws in the High Court.

Greens Party Senator Sarah Hanson-Young introduced the motion.

###Background to the motion

Two weeks ago, the Tasmanian Legislative Council voted against a bill that would have made Tasmania the first state to recognise same-sex marriage in Australia. Members who opposed the bill were concerned that it may not be constitutionally valid because it was inconsistent with Commonwealth marriage law. And their main concern was the potential cost of a Commonwealth challenge against the bill (see ABC News).

Professor Anne Twomey gives a good discussion of the bill's constitutional issues.