As of last week, Malta has marriage equality, along with a population that is 98% Roman Catholic. In Australia — 30% “no religion” and on every poll at least 65% in support of marriage equality — the “debate” grinds on. And on.
Turgid is the word that comes to mind, each time I contemplate the disgusting mess that our federal politicians have made of this fundamental question of human decency. To see Liberal MP Tim Wilson explain why he might cross the floor to vote for a private member’s bill for marriage equality, but wouldn’t do so for a Labor bill doing the same thing, really drives home how well this issue exemplifies the amoral abyss Parliament has become.
No, ignore those pathetic wheedlers and their endless political machinations. Let’s talk law. This is the case for marriage equality, and it is undeniable.
What is marriage? Unquestionably, it is a religious institution. Every religion celebrates marriage, with infinitely varying ceremonies, vows, traditions and rules. And, with perhaps a few minor exceptions, they all restrict marriage within their faiths to opposite-gender couples: a man and a woman.
But marriage is also a legal institution. It is formalised in all jurisdictions, and certainly in Australia, under law. A marriage cannot achieve any societal recognition otherwise. Australia’s constitution gave law-making power in respect of marriage to the federal Parliament, and the Marriage Act provides the legal foundation for every marriage in this country.
[Matthewson: what’s a guy gotta do to pass marriage equality around here?]
There’s no difficulty with marriage being both a religious and a legal institution. Each has a different foundation and serves a different purpose. The distinction is critical, because it’s where the arguments against equality meet their defeat.
Those arguments base themselves in religious doctrine. They always boil down to one simple proposition: that marriage is traditionally between a man and a woman, as ordained by scripture. It is, one way or another, dictated by doctrine, and that is that.
I have no argument to make against religious belief. There is no need for anyone to deny another’s principles. There is, however, a need to recognise the ground on which those principles stand.
Imagine you speak for a specific faith, let’s choose the Church of England as a generic representative. Within that church, marriage is recognised and regulated by doctrinal boundaries. It is restricted to opposite-gender couples.
The Church of England recognises its own marriages. It also recognises every other religion’s marriages. If you were married under the Catholic faith, or Islamic, Jewish, Buddhist or Hindu, even if you had a civil ceremony outside religion altogether, the Church of England is fine with that and accords no less respect or acceptance of the validity and sanctity of your marriage than it does its own.
That’s the key. Doctrinally speaking, it makes no sense for any religion to recognise the marriage of any other, especially not civil marriages, because they don’t follow the rules. A marriage made without a nuptial mass conducted by an ordained (male) priest cannot be right in God’s eyes, under Catholic doctrine. So how can it be accepted by the Catholic Church at all?
Religions recognise each other’s marriages because they conform to the legal institution of marriage. It is not the institution of the other religion they are recognising, but the legal institution. It cannot be otherwise. I’m sorry to labour the point, but it is the whole point, and it tends to be overlooked.
Once we appreciate the dual nature of marriage, we can get past all the religious/moral debate. That stuff can carry on within each religion’s domains, along with all their other points of doctrinal contention such as whether a woman can be a priest. It’s nobody else’s business or concern.
Most importantly, it is not the law’s concern. The law relating to marriage is simple and clear. Since 2004, when John Howard pushed through amendments to the Marriage Act without whisper of a plebiscite, the law has expressly limited marriage in Australia to “a man and a woman”.
This law, as it presently stands, conflicts with a fundamental principle of law: equality before the law. This rule goes back to Magna Carta and way beyond; it has precedents in Roman law and ancient Greece. It’s enshrined in article 7 of the Universal Declaration of Human Rights, to which Australia is a signatory: “All are equal before the law and are entitled without any discrimination to equal protection of the law.”
That is not to say that the Marriage Act is not valid law; it is. The High Court had no difficulty confirming that federal Parliament has power to define marriage as it wishes, and the current definition is an available option.
Although a law can be made, that is not to say that it should be made. Legal power is one thing; legal principle is another. Equality is one such principle, and a good law is one that conforms to it unless there is a very good reason why it should not.
To put it simply: equality before the law should always be the default. We should depart from it only for a higher purpose. An example is that children are not treated equally by the law, because we accept that they are incapable of the same level of rational decision-making as adults. Thus we draw the arbitrary line at 18, before which the law says you are unequal.
[Marriage equality postal plebiscite plans are much further along than you think]
The law used to treat women as unequal, as it did indigenous Australians and same-sex couples. Marriage aside, gay couples are now given equal legal rights as everyone else, because we recognised that there was no good reason why that should not be so.
The remaining question is whether marriage should continue to be kept aside. To do so, we need a compelling reason why the law should treat couples who want to marry but who are not opposite-gender differently. What is the justification, recognisable by the law, for maintaining inequality in marriage?
I don’t know of any. Tradition is no basis for upholding inequality; slavery, child labour, genital mutilation and so much more once had the same claim. Everything else is distraction. Sure, let marriage celebrants and church halls exercise their right to discriminate against same-sex couples if they wish; even allow homophobic cake bakers to refuse service for a gay wedding. That’s not a reason for not ending the discrimination that prohibits some people from being married.
Equality before the law should be restored. Marriage should be open to any two people (minors and incestuous couples excluded) who want it. It is as simple as this: replace “a man and a woman” with “two people”. It’s time.
Note: Marque Lawyers has launched a campaign to hasten this change, targeting the Australian legal community. We think it’s also time that lawyers spoke up for the law. Check it out at www.twopeople.org.au.
Why only two people? Love is limitless isn’t it? More moving into the marshes.
Because “three or more people” is a fundamentally different (and more difficult) arrangement to “two people”.
But “two people” is more complex than man and woman in natural form.. man and man, woman and woman, same transgendered sex, cross transgendered sex , same/cross transgendered sex. This is the stuff of voyeur television that exhibits marriage as a cheap game.
Marriage is a legal arrangement.
The gender of the participants has – or should have – no bearing or relevance, any more than it would the contract of sale for a house.
I’ve always thought we should follow the French approach – to become married, couples must have a civil ceremony. Then, if they wish, they can have a religious one. Thus gay people could be validly married, notwithstanding what the religious mobs have to say about it.
Perfect solution – everybody happy, nobody “pressured” to go against their conscience!
Nothing good has come out the French anti-clericalism and its hardened secularism. It may be functional, but lack’s depth.
Your comment lacks depth and is dysfunctional too.
And poorly punctuated.
oops..
I must have missed JH’s plebiscite. And I don’t remember getting a fine either.
Good article.
The “cake baker” furor is a furphy.
Couldn’t any baker who didn’t want the custom of same sex couples just say he was too busy etc?
“Sure, let marriage celebrants and church halls exercise their right to discriminate against same-sex couples if they wish; even allow homophobic cake bakers to refuse service for a gay wedding. “
No, (especially) celebrants and cake bakers should not be allowed exceptions.
That’s no different from saying that people who believe in the inherent superiority of the white race should be able to put “no blacks, no asians” signs out the front of their shops.
Your categorisation is wrong – blacks, asians, the races, are like gender – all are specific self-replicating representatives of homo sapiens. Homosexuality is an aberration – a non-pathological minor variant of the norm. It does not lessen the worth or value of the person. The Gay Liberation movement from the late 60’s had a fine purpose and achieved its ends in seeing justice prevail in recognition of such relationships. The attempt to redefine marriage from its deep natural roots, with its carriage of hope in new life from the union, is simply politics for politics sake. There is no call to justice in it. It is materialist – the event. But it does provide a source of emotional self-righteousness to the “believers” as they condemn those who call it out as such.
Your categorisation is wrong – blacks, asians, the races, are like gender – all are specific self-replicating representatives of homo sapiens. Homosexuality is an aberration – a non-pathological minor variant of the norm.
Well if you want to get biological, they’re ALL just random mutations. And the fact that homosexuality just keeps popping up, not only across all of humanity but also in animals, suggests that whatever biological causes it might have do an OK job of “self-replicating”.
Not that it’s relevant, anyway. Why should one person be treated differently by the law and not enjoy the same legal rights as another because of an irrelevant “minor variation of the norm” ?
It does not lessen the worth or value of the person.
Well, apparently it does, since the core argument presented is that those persons should be treated inferiorly by the law.
(Worth noting is that the removal of the Marriage Act completely (and/or replacing it with a “Civil Union”) would have the same effect of producing equality before the law. But I find support for that amongst anti-gay-marriage proponents to be rather thin on the ground. I assume it would be legally much more disruptive as well as many other laws would rely on whether or not people were married.)
The attempt to redefine marriage from its deep natural roots, with its carriage of hope in new life from the union, is simply politics for politics sake.
Marriage – especially its very specific definition that you are talking about (at least, I’m assuming you are OK with women holding full and equal legal rights as people, and the no-fault divorce) – does not have “deep natural roots”. Firstly, because humans do not naturally form into monogamous lifetime pairs, secondly, because monogamous lifetime pairs are required for neither reproduction nor social organisation and, finally but most importantly, because the legal contract of marriage – what we’re actually talking about – is an arbitrary construct, created to deal with property rights (and for most of history, “property” also described the women), inheritance and enforcement of “morality”.
That is why there are plenty of societies wherein the arbitrary construct of marriage divorce is not permitted, women are not treated as equal participants, and monogamy may not be a requirement.
The suggestion that same-sex couples should not be allowed to marry because it’s against “tradition” does not stand up to even a cursory examination, in both legal and social contexts, because in both it not only has a wide spectrum of differing attributes, but changes regularly as well.
Further, the only part of marriage change is being sought for is the legal one. So what you, or your religion, personally define as marriage is as irrelevant to the law as other people’s definitions of it are to you. If you think marriage is lessened because people you disapprove of are able to participate in it, that’s your problem.
Finally, the assertion that changing the Marriage Act by the removal of half a dozen or so words, is something that requires a legislative song and dance on par with changing the Constitution (even though such changes never have in the past and the Constitution says nothing about marriage) and could not be done simply and quickly by our representatives (despite it having been done so only thirteen years ago and the necessary changes only being opposed by a minority of citizens) is legally, ethically and morally, ridiculous on its face.
Or, in summary: bollocks.