Australia’s Same-Sex Marriage Vote May Proceed, Court Rules

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MELBOURNE, Australia — The Australian government’s highly contentious proposal to put the question of same-sex marriage to a nationwide postal vote is legal and may proceed, the country’s High Court ruled unanimously on Thursday, eliminating the last hurdle before ballots are to be mailed out next week.

The survey — which is voluntary, unlike in-person elections in Australia — was challenged in two separate cases brought by advocates of same-sex marriage and members of Parliament. Run by the Australian Bureau of Statistics, the vote will be unique in Australian history: Nothing in the law requires it to take place before Parliament may act, and lawmakers are not bound by its results.

Though the court has announced its decision, it could be weeks before it releases the reasoning behind it. Legal experts suggest that the core argument was whether the government unlawfully appropriated funds for the postal vote without parliamentary approval. The government used an appropriations clause that allows its finance minister to spend up to 295 million Australian dollars — or around $236 million — if the expenditure is “urgent” or “unforeseen.” The plaintiffs’ case against the government centered on those two words, claiming that the postal vote did not fulfill either obligation.

“That’s really the core argument — whether this can nonetheless be authorized by this other provision,” said George Williams, dean of law at the University of New South Wales. “The High Court has said that the federal government can’t spend taxpayers’ money without the approval of Parliament,” he said, referring to another recent decision by the court. “The government twice sought that approval for a national plebiscite, but Parliament rejected those attempts.”

The High Court, which regularly deliberates on cases for months, announced its decision less than 24 hours after hearings finished. The decision was expedited because of the government’s desire to start mailing the survey to registered voters next week.

The ruling brings a little relief to the conservative government of Prime Minister Malcolm Turnbull. The decision to conduct the survey has been deeply unpopular on both sides of the issue, birthing a national debate that has been, at times, tumultuous. Advocates of same-sex marriage have pushed for Parliament to vote on the issue directly. The postal vote will cost 122 million Australian dollars, or around $97 million.

The national debate resumed swiftly after the ruling.

“Will the prime minister now accept my invitation to write a joint letter to all Australians recommending voting ‘yes’ to marriage equality?” Bill Shorten, the opposition leader, asked in Parliament.

“Mr. Speaker: I’m interested in the assumption that the leader of the opposition makes that joining his signature to mine will actually increase the ‘yes’ vote,” said Mr. Turnbull, deflecting the question to jeers.

“Much to his disappointment,” said Mr. Turnbull of his counterpart, “now every Australian will have their say.”

Eric Abetz, a senator with Mr. Turnbull’s party, the Liberals, quickly urged his Twitter followers to “help us say NO to political correctness.”

Mr. Abetz linked to a sign-up page for the Coalition for Marriage, a group opposing any changes to the Marriage Act. That group’s spokesman, Lyle Shelton, described the postal ballot as a referendum on freedoms and “radical” sex education.

Australia’s attorney general, George Brandis, dismissed that characterization of the vote, saying, “It is a survey to determine the opinion of the Australian people on the question that is asked, and that question is, ‘Should the law be changed to allow same-sex couples to marry?’ That is the only question to which the Australian people are being asked their advice.”

“The postal survey is going ahead, but whatever the outcome, Parliament should uphold rights and allow same-sex marriage,” Elaine Pearson, the Australia director for Human Rights Watch, said in a statement. “Fundamental rights should never be put to a popular vote.”

“This postal plebiscite is completely unnecessary,” said Anna Brown, the director of legal advocacy at the Human Rights Law Center, before the hearings began on Tuesday morning. “It’s costly, divisive and already causing harm to our community. The rights of any group of Australians being subject to a public vote sends a terrible message to our community.”

The court’s decision places the vote into sharp focus. During the last federal election, Mr. Turnbull said that Australian voters would be able to have a direct say on the issue, before any laws were enacted.

But it is likely that he will face continued pressure to take the issue to a parliamentary “free vote,” letting lawmakers vote their conscience on same-sex marriage, rather than requiring them to decide along party lines. Such a free vote has been endorsed by Bill Shorten, head of the opposition, and some liberal members of the prime minister’s coalition.