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 the beginnings of 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 is 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. To make a positive and constructive Christian political contribution to all political debates, 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 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? “No!”, all on it’s own, doesn’t get very far. If “No!” is to express a genuine political concern for public justice its needs to be followed by an elaboration of the political view of marriage that has brought us to this conclusion. Can we do that?
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 on pain of penalty. That would not be a positive development. If any 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 until they have “gone through” a marriage ceremony to make it public. 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. And anyway there are many male and female “partnerships” that refer to themselves as married. Conventionally they were referred to as “common law marriages”.
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 any “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 living together is not a 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.
So, “No!” in our case 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 include homosexual relationships within the legal definition of lawful marriage. Our “No!” in that instance will expand to saying “No!” to the lawful definition even when the lawmakers who are redefining marriage in the way proposed go ahead . Our “No1” will mean that in our view a legal error based upon an empirical mistake is not corrected simply by legislation that incorporates the mistake into its erroneous definition.
As so our “No!” also means that Governments sometimes make mistakes on the basis of erroneous legal judgments. And there is a wider question here about how we should then live as citizens in the context of error.
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. 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 widely held view that marriage law is about the legal recognition of marriage. 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 re-make.
“No!” here also doubts 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 and loving relationships. But love does not equal sexual love, and ongoing complaint on behalf of “same-sex marriage” about “equal love” is not only blurred, it is blurring.
Such diversity of relationships should evoke our (civic) respect and honour and at points there will be need for changes in laws to ensure 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) relationships. “No!” in this case does not mean any criticism of such provisions like “paid carer’s leave” or hospital visiting rights, superannuation entitlements, and so on. 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 it would in fact be discriminatory to single out one kind of non-marital relationship for a privilege usually granted to marriage partners while denying that privilege to other kinds of enduring partnerships and committed friends.
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 tell the prominent public advocates of “gay marriage” why we disagree and why we think the campaign for “gay marriage” is misconceived. But we also keep alert to the clash of assumptions that will come when public policy is debated.
BCW 31.3.17 Edited version of 3rd November 2006.