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It's time to recognise secular same sex marriage

  • 12 July 2013

The US Supreme Court and our newly installed Prime Minister have put their weight behind legal recognition of same sex marriage.

Kevin Rudd before resuming the prime ministership wrote that he had 'come to the conclusion that church and state can have different positions and practices on the question of same sex marriage. I believe the secular Australian state should be able to recognise same sex marriage. I also believe that this change should legally exempt religious institutions from any requirement to change their historic position and practice that marriage is exclusively between a man and a woman.'

Change is still some way off here in Australia and the arguments are still a little confused. But change is coming.

On 26 June 2013, the US Supreme Court gave two decisions impacting on same sex marriage under a constitution which vests in the states, and not Congress, the power to make laws with respect to marriage. Here in Australia, the Commonwealth Parliament, and not any state parliament, has the overriding power to make laws with respect to marriage. So Australian states are not assured the constitutional mandate to go it on their own.

One of the US Supreme Court decisions cleared the way for same sex marriage in California, the 12th state of the union to recognise such marriages, and the other struck down the Congress' Defense of Marriage Act which provided that in all federal rules and rulings 'the word 'marriage' means only a legal union between one man and one woman as husband and wife'. Writing for the majority in US v Windsor, Justice Kennedy striking down Congress' attempt to limit marriage to the exclusive union of a man and a woman said:

It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilisation.

Cardinal Timothy Dolan, president of the US Conference of Catholic Bishops, described the Supreme Court decisions as a 'tragic day for marriage and our nation', saying, 'The Court got it wrong. The federal government ought to respect the truth that marriage is