How will the challenge to the ACT gay marriage laws fare?

This week we have seen the enactment in the ACT of its equality marriage laws. It is expected that the laws will take effect in 2 weeks, meaning that same sex couples can get married there in 6 weeks, as there is a requirement to give 4 weeks notice before getting hitched.

With absolute predictability, the Abbott government will challenge the laws in the High Court. What is uncertain is whether the laws will survive the challenge in the High Court, as I have blogged before. There has been a lot of speculation in the media, as long ago, in respect of mooted Tasmanian laws on this point, as 2008. The reality is that we don’t know. It will be up to the seven members of that court to decide. I thought the position was summed up well by one academic, who said: 50/50.

Commonwealth Attorney-General George Brandis is seeking that the High Court deal with the matter urgently. He will no doubt be concerned that delays might not prevent the inevitable (at least in a political sense): the longer that it might take the High Court to decide as to the laws, the potential for more and more people to get married. It is then a bad look for any politician to be removing the rights of hundreds of people who that they had engaged in a valid marriage.

We saw that happen in California.

If for some reason the challenge does not get up, then the Abbott government still has a political fix. If it can persuade the Senate after Clive Palmer controls it in July to pass legislation to override the ACT’s laws- then voila!- the laws can be overcome.