The Court Hurts: Commonwealth v Australian Capital Territory (Same Sex Marriage Case)

By Brad Jessup

Commonwealth v Australian Capital Territory Case Page

On 12 December 2013 the High Court revealed its decision in Commonwealth v Australian Capital Territory [2013] HCA 55 (Same Sex Marriage case) on the Commonwealth’s challenge to the Marriage Equality (Same Sex) Act 2013 (ACT), and at the same time it reduced the possibilities for other state and territory proposals for so-called ‘marriage equality laws’.

This blog post presents an alternative way of understanding the case and judgment in the Same Sex Marriage case. I use my interests in the case, my background exposure to the jurisprudence of same sex marriage, and my experiences following the decisions of the High Court of Australia throughout 2013 as an editor of the Opinions on High blog to support my autoethnographic analysis.

I will try to articulate why, despite being reluctant to engage with the issue of same sex marriage for so long, I was surprised and hurt when I learnt of the decision of the High Court.

From Canberra to California
Soon after I began my academic career in Canberra one of my new colleagues entered into Australia’s first public same sex civil partnership. Other new Canberra friends registered their relationship in accordance with the Civil Partnerships Act 2008 (ACT) over the counter while paying their vehicle registration. My boyfriend and I had been ACT residents for about six months and together for over two years. So we could have done the same. We didn’t. We didn’t even discuss it.

My scholarly interests remained elsewhere. Others had been productive, provocative and persuasive in the space. This was so especially following the passage of the Marriage Amendment Act 2004 (Cth), which asserted the federal Parliament’s intent that marriage be a union of a woman and a man. Moreover, I had ‘troubles’ with marriage; let alone ‘gay marriage’, as an exclusionary, archaic institution. Nevertheless, I was not entirely agnostic. I had responded to queries from curious friends about the requirement of celebrants to pronounce the meaning of marriage at their weddings. I also became intrigued by the constitutional, and more so the geographical and sociological, battles over same sex marriage within the States of the US. Continue reading