In defence of state and territory same-sex marriage laws

It's not the role of legislators to second-guess the High Court. If they did, no marriage equality law, indeed few laws at all, would ever be passed.

The second fact is that laws for personal relationships have always been made first by the states and territories, and only later by the Commonwealth.

All heterosexual marriages were performed under state laws until the federal Marriage Act was passed in 1961.

The recognition of opposite-sex and same-sex de facto unions occurred first at a state and territory level before their recognition in national law.

Civil partnerships were established at a state level first, and were only later acknowledged in federal law.

Not only can the states and territories be the first to make laws for same-sex marriage, according to the logic of federalism it would be anomalous if they weren't the first.

The third fact is that couples don't care what statute they marry under.

My parents didn't know or care that when they married in 1959 it was under a state law.

Neither do same-sex couples today care about the details of the law they marry under, who has enacted it, or where it is recognised.

All they care about is that they can make solemn, legally-binding vows of life-long commitment before their families and friends.

The aspiration at the heart of the marriage equality movement is for same-sex couples to have the option of legally marrying.

State and territory laws do this just as well as federal law.