Court throws out marriage discrimination challenge

Following a Federal Court decision late last week to throw out a legal challenge to the current ban on same-sex marriage, equal marriage advocates say it is even now more pressing that politicians act to remove marriage discrimination.

On Thursday, February 21, Federal Court of Australia Justice Jayne Jagot upheld a decision by the Australian Human Rights Commission (AHRC) last July to dismiss a class action brought by gay rights activist Simon Margan on behalf of 64 complainants that alleged a lack of equal marriage laws amounted to gender discrimination against LGBTI people.

Margan had first brought the case to the AHRC’s attention in November 2010 but the Commission terminated the complaint almost two years later as it believed it “was misconceived and/or lacking in substance”.

In her ruling, Jagot (pictured) found the federal Marriage Act which states marriage is “the union of a man and a woman to the exclusion of all others” was not discriminatory as it treated both genders equally with neither gay men nor lesbians able to marry their same-sex partners.

“It is clear that the facts are legally incapable of satisfying the statutory tests of discrimination on the grounds of sex or marital status,” she wrote.

“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.

“The statutory regime makes plain that the only redress for Mr Margan, if he or others wish to marry a person of the same rather than the opposite sex, is to be found in the political and not the legal arena, by amendment of the definition of ‘marriage’.”

Australian Marriage Equality national convener, Rodney Croome, said, Jagot’s finding that that the current ban same-sex marriages was not gender discrimination because gay men and lesbians are discriminated against equally was unnecessarily narrow and may have also failed to take into account legal restrictions upon trans and intersex people.

“Marriage remains one of the few key legal and social institutions in this country that imposes a gender qualification on those who seek to enter it,” he said.

“A good marriage is about what’s in the partners’ hearts not what’s between their legs and it is wrong for the law to ignore this.”

Croome said if the courts did feel powerless to remove discrimination that polls clearly showed the majority of Australians oppose then it was up to politicians to act.

“This issue has become a test of the capacity of Australia's democratic institutions to respond to popular and overdue reform,” he said.

Margan intends to appeal the ruling to the full bench of the Federal Court. 

To read the judgement in full, click here.