Members of a group of same-sex couples who suffered “an indignity no Australian should have experienced” when the federal government petitioned the high court to annul their marriages in 2013 say they want an apology.
As the speeches supporting same-sex marriage legislation continued into a third day in the parliament in Canberra, 31 Australian couples could not help but notice how few of those voices spoke up when their marriages were annulled by the high court four years ago.
It was four years ago on Friday that Veronica Wensing and her partner, Krishna Sadhana – along with 30 other couples – were married “legally, although briefly” in Canberra under the ACT Marriage Equality Act.
“Every year the anniversary comes around it’s bittersweet because we celebrate the time we celebrated our love in front of our family and friends but at the same time we know it’s not valid,” she said.
The marriages only lasted a week. After a challenge by the Abbott government, the high court ruled the act was constitutionally invalid because it was inconsistent with commonwealth law and the marriages were annulled.
“We were gutted,” Wensing said. “Although we knew that would be the verdict, so I guess we were prepared in a way, but it still was gutting and a lot of tears were shed.
“It was very difficult. There were a lot of us in the 31 couples who were, in a way, a bit surprised by how different we felt being married ... I finally felt like a legitimate citizen and it enabled me to walk more proudly, with my head held higher.
“So it was pretty gutting when that was taken away.”
Wensing and the others in the group would like to see some kind of recognition for the pain caused by the decision. An apology, or to have the date of their marriage returned to the original day in 2013.
Wensing and Sadhana do plan to marry again – “we’ve worked so hard for marriage equality, it would be like fighting for the vote and not voting” – but would like to keep 8 December as their anniversary.
The Abbott government challenged the laws in the high court, with prominent same-sex marriage advocate George Brandis, the attorney general, welcoming the judgment at the time because it avoided having inconsistent state-by-state marriage laws.
But Ivan Hinton-Teoh, who married his husband, Chris, four years ago today, described it as one of “the thousand cuts inflicted upon LGBTI Australians along the way” to marriage equality and said it had “denied dignity” to the married couples.
“These Australians only wanted to be married, something politicians across the political spectrum in recent times loudly celebrate,” he said.
“But four short years ago these couples found few champions and a government that not only denied dignity but was willing to revoke it.
“There has been no single act of contempt greater than the federal government asserting marriage equality was its sole right to enact, then denying its parliament the opportunity to do so, and extinguishing the marriages of 31 couples.”
The couple will be unable to get married in Australia if legislation eventually passes through the parliament because they have previously wed in Canada. But Hinton-Teoh said he would like some recognition for the 31 couples who had their marriages overturned.
“These couples suffered an indignity no Australian should have experienced and I would call on this government or the next to recognise the injustice of the delay in achieving this reform and the lengths previous governments have gone to, to deny or extinguish that dignity,” he said.
In its unanimous judgment in 2013, the court held that the federal parliament “has power under the Australian constitution to legislate with respect to same-sex marriage and that, under the constitution and federal law as it now stands, whether same-sex marriage should be provided for by law is a matter for the federal parliament”.
The University of Sydney constitutional law expert Anne Twomey said that before the ACT decision there had been some doubt over whether the high court would take an “originalist” position on the meaning of marriage in the constitution.
If it had, and ruled that marriage under the constitution was between a man and a woman, it would have made it necessary to hold a referendum to legalise same-sex marriage.
“As it turned out the high court interpretation is quite odd for that particular judgment because it didn’t take an originalist position but it didn’t take a contemporary one either,” she said.
“Basically it took meaning from the way marriage has been determined internationally, which is a very odd thing to do to.
“The irony is that in this debate often people are quite offended if any comparison is made between same-sex marriage and things like polygamy but that’s exactly what the high court did in [the] ACT case and that was key to the court actually accepting marriage could be used to extend to same-sex couples.
“For the high court, the existence of polygamy and other forms of marriage meant that it had a broader meaning than the sort of Judeo-Christian definition.”
