By later this year Australia could become the only major English-speaking country in the world where marriage equality is not legalised …
Whether this embarrassing situation will come to pass will depend on the outcomes of:
- the Irish Marriage Equality Referendum, to take place on 22 May, which, if successful, will insert a specific provision in the Irish Constitution providing for marriage equality; and
- the judgment of the Supreme Court of the United States of America (SCOTUS) in Obergefell v. Hodges, Case No. 14-556, with oral hearings scheduled for 28 April, which is expected to be delivered by the middle of the year, and could bring Constitutional recognition for marriage equality in the entire United States.
Currently, the Irish referendum is expected to be successful with the Government, the Irish Taoiseach (Prime Minister) and all other major parties supporting a ‘Yes’ vote, and pre-referendum polling consistently showing over 70% public support.
It is also anticipated by many that, following a long and arduous fight against intolerance and prejudice in the US, SCOTUS is likely to give Constitutional recognition for marriage equality in light of their previous decisions in:
- United States v. Windsor, 570 U.S. (2013) (Docket No. 12-307) (also known as the Defence of Marriage Act (DOMA) Case); and
- Hollingsworth v. Perry, 570 U.S. (2013) (Docket No. 12-144) (also known as the ‘Proposition 8’ or ‘Prop 8’ Case), and
their consistent refusal over the past year or so to stay Federal Court decisions that overturned State bans on marriage equality.
The story of the lead plaintiff before SCOTUS, Jim Obergefell, and his partner, John Arthur, is particularly beautiful and, at the same time, heartbreaking.
It’s worth highlighting that in Australia we do not need a referendum to change the Constitution to legalise marriage equality, nor does the matter need to go before our highest court, because in The Commonwealth v Australian Capital Territory  HCA 55 the High Court of Australia already held that:
- ‘s51(xxi) [of the Australian Constitution] gives the federal Parliament power to pass a law providing for same sex marriage’ [at paragraph 10]; and
- ‘[w]hen used in s 51(xxi) [of the Australian Constitution], “marriage” is a term which includes a marriage between persons of the same sex’ [at paragraph 38]).
Whatever the outcome may be in Ireland or in the United States later this year, it’s time Australia!