The High Court has ruled, correctly in my view, that the ACT legislation which briefly established equal marriage was in conflict with Commonwealth Law clearly intended to do the opposite, by defining marriage as “between a man and a woman”. We might not like the practical result, but consider how things would be if the court had gone the other way and was then confronted by a state trying to ban equal marriage after a change in Commonwealth law.
And, this is clearly a matter for the Commonwealth to decide. Abbott implied before the election that he would be open to a free vote in the New Year, and Labor should push him on this. The politics of this are pretty awful for Abbott – he’s using his control of the LNP to block a reform supported by the majority of Australians and already in place in most civilised parts of the world. On recent form, he’ll probably try to tough it out for a while, but will cave if enough pressure is applied.
The final question is whether equal marriage would pass on a free vote. The last vote wasn’t encouraging, in view of the number of Labor members who opposed it, but some of them have gone and others, I think, have followed Rudd and Obama in “evolving” on the issue. The Nats will presumably be solidly against, so the real question is: how liberal are Liberals?
fn1. In my view, Rudd should have bitten the bullet after his change of view, and demanded a free vote from Abbott (the alternative being a party line vote with Labor and Greens in favor). But, the same advisers who gave us the early election and the Northern Australia nonsense thought otherwise, with results we now have to live with.