From letters sent to the government by business leaders, to the introduction of special rings, proponents of “marriage equality” seem to take another step in their campaign each week.
We are told that we have had a long debate about “marriage equality” in Australia and that Parliament should get on with legislating the inevitable. But has there actually been a debate about “marriage equality”? If there has, we must now all be clear on what we mean by “marriage” and be sure that redefining marriage in the Marriage Act will remove “discrimination” and achieve “marriage equality”.
Finally, wedding vows that, like. totally don’t discriminate:
“Do you, entity, take this entity (or these entities) for your lawfully
wedded entity (or entities), … ?”
I suggest that that is just not the case. There has been no such debate. I argue that while the Western tradition and Australian law have always give preference to one form of marriage – (marriage between one man and one woman entered into voluntarily for life)– doing so is not discriminatory. I also want to point to the fact that no thought has been given to the message that would be sent to the families and children of those minority groups in Australia with different understandings of marriage and whose marriages would remain unrecognised were the state to recognise marriages between two persons of the same sex under the Marriage Act.
Overlooked in the “debate” has been the fact that differing cultural and religious traditions in Australia have always had some different ideas about marriage. These include traditional marriage, the traditional cultural marriages of Australia’s Aboriginal peoples, marriages involving more than one man and one woman, marriages with a fixed term, arranged marriages with an element of compulsion, and relationships in which one or more of the parties are too young to marry under Australian law. Australia’s Aboriginal peoples have celebrated some of these forms of marriage for at least 40,000 years, and parts of Australia’s Islamic communities have done so for at least a hundred years.
Australia has only ever recognised traditional marriage, apart from the brief appearance of same-sex marriage in the Australian Capital Territory before the High Court of Australia found it to be unlawful. As a result people of the same sex who wish to marry each other and have their marriages recognised in the Marriage Act cannot do so.
One feature of same-sex marriage which is unique is its very brief history outside a few traditional societies. While marriages between two men appear to have occurred in Ancient Rome, they were rare, were not regarded favourably by contemporaries and were outlawed in 342 AD.
While known in some traditional African and Native American societies, marriage between two persons of the same sex appears to have first emerged in the West in 1970, when Hennepin County, Minnesota, refused to grant Jack Baker and James McConnell a marriage licence. Proponents of “marriage equality” seek recognition only of this most recent form of marriage. It is said that this step will remove discrimination.
While married men and women alone once benefited from various superannuation, taxation, social security and other financial benefits, this is no longer the case in Australia.
Today non-married relationships, at least between any two persons irrespective of their sex and sexual orientation, enjoy the same legal, social, civil and welfare benefits as married couples. A range of relationship registers also exist.
As a result, in the context of same-sex relationships, discrimination and equality arguments are confined to calls for state recognition of marriages between two persons of the same sex. Understanding what discrimination and equality means is therefore critical.
According to the High Court, discrimination is giving “different treatment … to persons or things by reference to considerations that are irrelevant to the object to be attained”. If that test is applied to state recognition of marriage, preferring one form of marriage over another is not necessarily discrimination.The question involves a consideration of the meaning of the term “marriage”, the objectives that the state seeks by regulating marriage, and whether the state has taken irrelevant considerations into account in so doing.
These issues are also central to demands for “marriage equality”. As with “discrimination”, without context – without understanding the sense in which two persons, relationships, objects or ideas are relevantly the same or different – the term “equality” is meaningless. When that term is added to the term “marriage”, the foundational question that must first be answered is how the term “marriage” is being used. Without a clear understanding of the answer to this question, the issue of whether there are relevant differences in conceptions of marriage cannot be resolved and demands for “marriage equality” have no substantive content.
If there is no recognised meaning of the term “marriage” when equality is being discussed, it is not possible to identify the nature of the equality in “marriage” that is sought, nor whether such an equality would be possible, or to test whether (or how) redefining the term “marriage” in the Marriage Act is necessary to achieve “marriage equality”.
Some argue that a preference for traditional marriage is foisting a uniquely Christian or religious view of marriage on the country. That is ahistorical. Traditional marriage existed well before Christianity and it has existed in societies which are not and never have been Christian.
What interest has the state in marriage?
Focusing on marriage as a religious institution could also lead to the erroneous view that marriage is a purely personal or private matter of significance only to those persons entering the marital relationship and of no concern to the state. Were that the case it would be difficult to identify any legitimate basis for state involvement in marriage. But Australian law has always dealt with marriage and it was considered so important that it was included in the Constitution.As Justice Kenneth Jacobs observed in Russell v Russell in 1976: “The nurture of children by, and in recognised and ordered relationship with their parents, is thus integral to the concept of marriage as it has been developed as an institution.”
The creation of families and the raising of children are matters of public concern: this recognition of the centrality of procreation to marriage pre-dates Christianity and is assumed in most cultures and religions. It has long been recognised as forming part of the natural law.
Although some marry without the aim of bearing children, or believing that they unable to do so, the majority marry expecting to have at least one child and the majority of married couples do procreate. As Elizabeth Abbott observes in A History of Marriage: “Today as in the past, children – wanted and unwanted – have always been at the heart of marriage.”
An understanding of marriage as intimately connected with procreation and family has been called a “conjugal view”. It is a view of marriage in which the intimacy between the spouses is inextricably linked with their complementarity as physical, spiritual and emotional beings. Marriage, on this view, is not just friendship or sexual gratification – it is a complete giving by one spouse to the other which, on this view of marriage, is only possible for one man and one woman to give to each other. This is because sexual union between a man and a woman is potentially life giving in and of itself. Only one man and one woman can by their own sexual act conceive children who are biologically associated or related to each.
As traditional marriage has a lengthy pedigree, it has been the subject of large-scale empirical studies for many years. These studies show that statistically traditional marriage benefits both the couples who marry and their children and supports the view that society has an interest in supporting this form of marriage. As a consequence, if the traditional or conjugal view is society’s objective in regulating marriage, it is not discriminatory for the state to consider formally traditional marriages only in the Marriage Act.
Some might argue that this conjugal view of marriage is obsolete. It might be said that the primary focus of marriage now is the happiness of the people getting married, respecting and reaffirming their personal autonomy, equality and choice. If that is so, by what criteria ought the state decide which marriages to recognise and which not to recognise? Why is the state involved in marriage at all? Why does the state care who people love or care for? On what basis ought the state limit marriage to two people?
These are critical questions that are not being asked let alone answered. If they are not answered and marriage is redefined as is sought at present, the motives for the state’s continuing involvement and its exclusion of other forms of marriage will be unclear. In that case those whose marriages remain unrecognised may have legitimate grounds to argue that the new definition of marriage – recognising the most recent form of marriage but leaving unrecognised marriage forms with deep religious, cultural and historical roots – treats them unequally and is discriminatory.
Tradition and empirical evidence support the view that the state continues to have an interest in regulating and supporting traditional marriage. This form of marriage has been shown to benefit the spouses and their children and to provide their children with the statistically best prospects of being cared for and reared in the best possible environment for producing healthy new citizens to ensure the survival of the state.
This remains a compelling interest which is best secured by the preservation of the present definition of marriage in the Marriage Act.