Neil Foster*, 13 March, 2015 (Law and Religion Australia): For many people in Australia the “battle” over recognition of same sex marriage seems, in popular opinion at least, completely over. Tim Dick in the Sydney Morning Herald on 1 March tells us that the “public argument is won” and we are now just up to the stage of deciding whether or not to allow “latecomers” to join the party. This, along with many other pro-gay marriage statements seem to barrage conservatives and traditionalists as ‘anti-gay’ and irrational in their reasoning. In this post, I want to put forward reasons why a sensible, rational human being might hold the view that changing the law to “legalise” same sex marriage is not a good idea.
I would challenge those who think the debate is intractable; that there can be reasons offered to oppose the introduction of same sex marriage which do not stem simply from irrational hatred or religious belief. The reasons I want to offer here could be shared by any person who thinks carefully about human society.
1. Isn’t recognition of same sex marriage simply a matter of “Marriage Equality”?
The first and in some ways one of the strongest arguments is framed under the deceptively simple heading of “equality”. If heterosexual couples in Australia are entitled to be married, then isn’t it simply a matter of basic equality and non-discrimination that homosexual couples should also be allowed to marry?
Perhaps one of the first things to note here is that it is odd, if this change were simply a matter of non-discrimination, that the Australian Federal government’s law on discrimination doesn’t already do the job. The Sex Discrimination Act 1984 (Cth) already makes it unlawful to discriminate against persons on the basis of their sexual orientation.
But s 40(2A) specifically provides that this law does not impact the law on marriage. The Federal Parliament doesn’t seem to think the debate is concluded simply by reference to “discrimination” as a category.
Indeed, a Federal Court decision on the question, decided under the law as it stood before there was a prohibited ground of discrimination based on “sexual orientation”, held that State Registrar-General’s offices did not “discriminate” on sex or marital status grounds by refusing to register same sex marriages- see Margan v Australian Human Rights Commission  FCA 612 (18 June 2013).
To put it simply, it is not “discriminatory” to not allow same sex marriage, because for there to be unlawful discrimination in denying a status or benefit to somebody, the person who seeks to gain such needs to fit the standard criteria for that status or benefit.
Similarly, under our current law it is not discriminatory to refuse to marry a same sex couples to each other, because they do not currently satisfy the criteria set out in the law of Australia, which is, as Griffiths J notes, that under s 5 of the Marriage Act 1961, they be a “man and a woman”. So the question is this: should the law of Australia be changed to allow same sex couples to marry each other? (For more exploration of the “discrimination” argument see the author’s previous paper)
2. Shouldn’t we allow same sex marriage on the basis of “equal love”?
One of the most plausible justifications for changing the law to allow same sex marriage is the argument that all persons are entitled to have their love for their partner celebrated by a marriage ceremony. However, it seems clear that we can’t accept this argument unless we know what purpose the law of marriage serves. It can’t simply be about celebration. There must be some reason why the marriage ceremony is the celebration we choose for a particular couple. After all, discrimination is only wrongful if it is on irrelevant grounds; so to know what is irrelevant, we need to know what is relevant.
Most people would agree that possible functions of marriage at least include:
- A celebration of the love that two people feel for each other.
- “Authorisation”, in some sense, of a sexual relationship between the parties, under community standards.
- A commitment of those people to be faithful to each other, and only each other, in their sexual relationships, with the aim that this commitment will last for a lifetime.
- A joining together of the two separate families of the parties, so that they are now connected in ways that they weren’t before.
- Providing a stable committed partnership within which children of the parties can be nurtured, by their biological parents, until they are ready to stand on their own as adults.
Sadly, in recent decades in the West (even before the movement towards same sex marriage) the first function of marriage seems to have been given higher priority and, in some eyes, to have completely eclipsed the others. The expense and pomp of the wedding ceremony have become for some the most important part. The second has become less important as the community has come to accept the idea of “free love” and the principle that sex is now widely available to all.
The day is now said to exclusively be “the couple’s day”, and so the role of other family members is downplayed or ignored. The importance of the commitment to lifelong monogamy is diminished to “lip service”, and there is now a social expectation that faithfulness is too demanding, and that minor problems may provide a ground for quick divorce.
The role of children in a marriage can sometimes be seen as a secondary, purely optional, issue. So it is not perhaps surprising that, if marriage has mainly become “celebration of love”, a fulfilment of the goals of the bride and groom, that we now see the calls to extend the institution to same sex relationships. Yet as many commentators have pointed out, if all that marriage does is provide a formal record that two parties, on a particular day, felt that they loved each other- what interest does the State have in this? Why is it formally recorded and accompanied by legal requirements?
The institution of marriage, though, is indeed a “package deal” which functions in all these five areas. The main interest the State has in marriage is that it provides a framework within which human experience tells us that children will be best cared for. A secondary goal is that marriage in its traditional form provides support for women, particularly those who choose to leave the external workforce to devote themselves to caring for their babies as they grow into mature human beings.
3. Is marriage really all about the children? Don’t children of same sex marriages do just fine?
There is evidence pointing in both directions here, which is highly contested. But as I read some recent studies, there is solid, peer-reviewed data showing that overall children do best when they are raised in a stable married family with a husband and wife who are the children’s biological parents. (And part of this study shows that earlier, contrary findings are often based on small, self-selecting samples.) Of course there are many exceptions to the general rule, heroic single parents and hard working same sex couples who provide fine care for their children. But when the research shows that other models are not ideal, one has to ask how we are justified, keeping the interests of children in account, in conducting what will amount to a decades-long “social experiment” when the preliminary data is not encouraging.
Indeed, it has to be said that in Australia we have already seen what happens when children are deliberately removed from their biological parents (as will have to happen for same sex couples to “have” children), in the interests of a public policy agenda. These days we call it the “Stolen Generations”. Already there is clear evidence that children brought into families through artificial insemination, embryo donation, and other techniques are, like a previous generation of adopted children where no records were kept, experiencing the pain of being cut off from their biological heritage. At least with those earlier social structures we thought that we were doing these things in the interests of the children, however misguided we were. But the current social experiment seems to be being conducted mainly in the interests of same sex couples, in some situations partly to fulfil a social expectation that a same sex marriage “ought to” have children so that it resembles a traditional heterosexual marriage.
4. But how will my same sex marriage have any impact on your traditional marriage? Can’t we all live and let live?
As noted previously, what is at stake is a radical redefinition of the whole institution of marriage. Most of the five characteristics traditionally thought to characterise marriage will be taken away. This, it should be noted, is not simply about the removal of children as a major goal of marriage (and incidentally the further downplaying of wider family involvement) and the change to a homosexual couple. It has to be conceded that very few homosexual relationships are long-lasting or intended to be “monogamous”. Research shows that there is an expectation in the homosexual community of a number of sexual partners.
Once sexual fidelity and the intention to create a life-long partnership are removed, along with the possibility of children who are biologically related to both partners – the word “marriage” is reduced to little more than a shell. What remains is a celebration and authorisation of sexual relationship.
One would be more prepared to accept that “live and let live” would work if it was were in evidence in other jurisdictions around the world where same sex marriage had already been introduced. But in fact one of the serious challenges to religious freedom that is developing in the West (there are much more serious elsewhere, of course, but the West is where many of us are), is the fact that once a jurisdiction has authorised same sex marriage, it becomes increasingly difficult for believers to be a part of public life. A teacher at a school, a public servant, even those who are part of the “wedding industries” such as flower sellers and photographers and bakers- all may be required to put aside their serious moral objections to homosexual behaviour in the interests of avoiding “sexual orientation discrimination”, and to not be heard to suggest that same sex marriage is in any way different to traditional marriage. (Nor will they be allowed, in many cases, to respond that their objection is not to the persons, but to their behaviour.)
This post is far too long, and it has not scratched the surface of what can be said as rational reasons for opposing a change of the law to allow “same sex marriage”. Reasons stem from, among other things, views about the fundamental purposes of marriage, the interests of children being raised in same sex relationships, and the impact of the move on religious freedom. For further reading on this topic let me recommend some other sources:
- Girgis, Anderson and George What is Marriage? (Encounter Books, 2012) – a careful philosophical defence of traditional marriage
- Samuel (ed) No Differences? How Children in Same-Sex Households Fare (Witherspoon Institute, 2015)- a collection of recent sociological research, reviewed here
- McDowell & Stonestreet Same-Sex Marriage (Thoughtful Response): A Thoughtful Approach to God’s Design for Marriage (Baker, 2014).
This is a debate that will continue for some time. Don’t cut it off by assuming those you disagree with are simply irrational.
*Dr.Neil Foster is an Associate Professor of Law. This post originally appeared on https://lawandreligionaustralia.wordpress.com/
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