This is the second republication from 2006 to alert readers to the kinds of shifts in the “marriage equality” debate that have taken place since then. Here is a Senate Submission I made to the Federal Parliament on the 2009 Bill seeking an amendment to the definition of marriage in the Marriage Act. Now instead of “gay marriage” it is indeed styled as a movement for “marriage equality” and there is a persistent call for Parliament to pass laws that will redefine marriage. There is now, more than ever, an international dimension to this – are those wanting to vote “No!” willing to support a long-term campaign to persuade Canada, UK, NZ and the USA that they are wrong? And would we be prepared to challenge the neo-liberal and neo-colonial imposition of such “marriage equality” as part of a comprehensive political view of public justice across the predominantly Christian states of the South West-Pacific? Sounds like we would have our work cut out ….
Public Debate and
Nurturing Justice 2006 3 November
In this issue, I want to extend our discussion of the calls for “gay marriage” from the Greens and Judge Michael Kirby by setting forth a Christian strategy to discuss this contentious and problematic issue. By this stage we should not be under any illusions. The possibility that “gay marriage” will be given legal sanction in this country is by no means remote. Perhaps, as time goes on, the likelihood even increases. Mark Shields of the NewsHour recently gave this opinion: “I mean, the tide has turned on this issue. I mean, the next generation is just immeasurably, profoundly more tolerant of gay relationships than are their grandparents. And there’s a movement that’s inevitable” (October 27. 2006). He was speaking of the US. Are we in Australia about to follow the US down this path? It wouldn’t be the first time.
In introducing this topic last time, I drew attention to the emotional aspect of this debate and emphasized the importance of developing an overview of political life and how we need to cultivate “healthy emotionality” in political debate. To make a positive and constructive Christian political contribution to all political debates, and not just about marriage law and related issues, a lot of careful analysis will be required. We will have to sort through issues self-critically and certainly not hide from the possibility that our presentation of the Christian message has hitherto failed to provide any clear alternative to the so-called sexual revolution. The public confusion about sex, sexuality and marriage is all around us. It is a confusion that has to be addressed. With something like 80,000 abortions per year and many, many marriages falling apart, there simply is no ground for Christian triumphalism. In our reflection on this issue we must question ourselves as to whether we are rightly understanding the problems confronting us.
So to start. The question before us is: should a homosexual relationship be granted the legal status of marriage? In a parliamentary vote it may well come down to “Aye” or “Noe” for individual parliamentarians but such one word answers about complex legislation about marriage law only comes after the drafting of a bill, amendments and arguments to and fro. So “Noe!” may be the answer of a Parliamentarian, but “No!”, all on it’s own in public and political debate, certainly doesn’t get very far. If “No!” is to express a genuine political concern for public justice its needs to be preceded by a comprehensive elaboration of the political view of marriage that has brought us to this conclusion. Can we do that?
[ 2016 amendment: Our problem is that Christians are more likely to say “No!” first and only then follow up with the further elaboration of a comprehensive political viewpoint. In this sense we (i.e those seeking to develop a Christian political option) are, in the words of Abraham Kuyper, exposed for our earlier failure to act as we now “find ourselves fighting a rearguard action.”]
We have to explain what our “No!” means politically. OK then let us first explore what “No!” shouldn’t mean. Remember, our aim is to develop political argument to meet the arguments of those whose answer to the question is “Yes!”
First, “No!” doesn’t mean a desire to avoid political debate by merely expounding moral and ethical precepts. The question needs to be taken in its political-legal sense and our “No!” needs to be a political-legal “No!”. It needs more than moral elaboration.
Second. “No!” doesn’t mean that we are making an argument for legally restricting the use of the word “marriage” so that committed couples who might want to refer to themselves in this way are legally forbidden to do so publicly on pain of penalty. That would not be a positive development and besides it would run counter to freedom of speech. If a couple are living together and want to refer to themselves as married, we might have our own views on that, and if asked for our views, we might tell them that they are not really married. But on that level of inter-personal interaction our “No!” to gay marriage is not to suggest that the law be changed to restrict the way people use the word in public or in private communication. To expand the powers of government to control the way the word “marriage” is used (or any other word for that matter) would be to take a path that wanders far from the limits of public justice.
[2016 amendment: see here the perceptive warning of N T Wright.]
Third, to say “No!” doesn’t mean that homosexual couples are being singled out for special negative treatment. The demand for “gay marriage” is often couched in terms of civil rights. Though our “No!” is based on the view that marriage is not a civil right, it is not to suggest that homosexual couples have in some way forfeited their civil rights. Any view that a homosexual couple’s relationship is not marriage needs to be explained in terms of a wider view of law and human relationships. The law doesn’t usually regulate friendships and nor should it. Here are some other dimensions of the issue.
If a mother and son want to be legally recognised as a marriage the law already says “No!”, and so it should. Likewise for a brother and sister who might want to make the same claim. Moreover, in this jurisdiction, polygamous and polyandrous arrangements are not accepted as lawful forms of marriage, even though our legal restrictions do not deny that these arrangements are marriages. What the law says in this instance is that polygamy is not a recognized form of marriage in this jurisdiction.
“No!” means: a homosexual relationship is something other than a marriage and therefore should not qualify as a lawful marriage. Our “No!” means that we will still not accept that it is a marriage even if marriage law is changed to redefine marriage so as to include homosexual relationships within the definition of lawful marriage.
As we have suggested already “No!” also means that Governments sometimes make mistakes on the basis of erroneous legal judgments. In this instance, should a legal judgment decide that homosexual relationships should qualify as “marriage”, it would not only misidentify the committed non-marital relationship that may or may not want to be legally recognised as a marriage, but it would also mean that marriage had been redefined because the law would henceforth consider something that previously was not marriage as marriage. But then the legal judgement needs to be made on the basis of legislation and if a parliamentary vote was to change the law to allow homosexual relationships to qualify as “marriage” such a vote would also encourage the misidentification of marriage. What isn’t being addressed is the underlying dogma that it is the law itself that makes marriage. “No!” in this case means a rejection of the idea that the law makes marriage marriage.
To legally redefine homosexual relationships as “marriage” on the basis of an assumption that the law makes marriage would certainly challenge the view that marriage law is about the lawful recognition of marriage qua institution. What is ignored here is marriage’s ascribed institutional character, having an authority that is established outside the competence of the political community. It seems that advocates of such law assume that marriage is a human creation and so assume that what humans have made they can un-make and then re-make. What humans have enshrined in law about marriage being exclusively a male-female life-long relationship can be deconstructed and reconstructed on the basis of a view that marriage law should be inclusive to include homosexual couples who are wanting their relationship to be interpreted as marriage.
[2016 amendment: this is the point at which the movement for “gay marriage” has morphed into demands for “marriage equality”. Despite Australia’s Federal Parliament having reaffirmed the “conventional” view of marriage in 2004, the LGBTI political cause shows no signs of abating.]
“No!” here also has doubts about whether the just support and regulation of committed, long-term relationships will be enhanced by legally re- defining those relationships (including homosexual relationships) as “marriages”. “No!” views two friends who are living together, committed to supporting each other, without any sexual bonding, as a friendship, not a marriage and for exactly the same reason considers a homosexual relationship to be a friendship. In our complex society there are indeed multiplying ways in which people can live together in supportive relationships. Such diversity of relationships should evoke our (civic) respect and honour and at points there will be need for changes in laws to ensure (distributive) justice. But justice is not served by calling a relationship marriage just because the parties to that relationship want to have their relationship re-made in those terms. More can be said here about the “social constructionist” and “consumerist” assumptions that are strongly evident in our commercialised and post-modern way of “doing politics”.
Fourth, to say “No!” doesn’t mean that only heterosexual lawfully married couples should qualify in law for benefits that are already available for people living in committed (household and child nurturing) relationships. “No!” in this case does not mean any criticism of such provisions like “paid carer’s leave” or hospital visiting rights, and so on that have been duly regulated. Moreover, it may indeed be a matter of justice that laws governing such allowances and access, as well as many financial and contractual relationships (health benefits, superannuation, inheritance), be changed in order not to discriminate against non-married supportive couples. And yet it would in fact be discriminatory to single out one kind of non-marital permanent “couple” relationship for a privilege usually granted to marriage partners while denying that privilege to other kinds of enduring partnerships and committed friendships.
Politics is about open debate. We citizens may disagree with each other. At this point in time those arguing for and against “gay marriage” are certainly going to disagree. But the important point is to find ways by which political debate is developed as we disagree and as we find just pathways for policies and laws. We need to avoid the tendency of treating fellow citizens as of no account because they disagree with us on contentious issues, and certainly we should not exclude their voice from our attention because they are committed to other political causes. We should seek to welcome the opportunity to explain to the prominent public advocates of “gay marriage” why we disagree and why we think the campaign for “gay marriage” or “marriage equality” is misconceived. But we also keep alert to the clash of assumptions that will come when public policy is debated.
[2016 addition: The political complexities of the international dimensions of “gay marriage” are going to have to be addressed, whoever wins the July 2 election and however the issue is resolved in the coming months. Even if the Coalition manages to hold onto the Treasury Benches it is still possible that “marriage equality” legislation will pass through both houses of the new parliament and pre-empt the proposed plebiscite – watch out for the political compromises and the language in which such reneging of previous solemn commitments are framed!]