The Marriage Debate

What is the meaning and purpose of marriage? This is the question central to the debate in Australia and elsewhere about the future of marriage. A number of recent books seek to answer this issue.

Paul Ritchie puts the conservative case for same-sex marriage in Faith, Love & Australia. His argument is that legalising same-sex marriage “is good for the institution of marriage because it means that all Australian will be responsible for upholding it; it’s good for gays and lesbians because it gives access to an institution that strengthens relationships; it’s good for families because it affirms their gay and lesbian members; it’s good for the children of same-sex parents because marriage strengthens the home; and its good for our country because it expands the freedom of its citizens.”

The counter argument is made by David van Gend in Stealing from a Child: “Our legislative duty is to protect the one institution that gives a child her mother and her father.

“When marriage and family gets so radically reordered that the ‘natural and fundamental group unit of society’ is unrecognisable, then all that remains to order society is the State. Repeal the natural and fundamental relationship of man and woman and you repeal the natural and fundamental relationship of parent and child along with the broader kinship bonds.”

As I wrote in Maybe ‘I do’, instead of a pro-child, social institution, as it has been regarded historically, some now propose that marriage be based on the gratification or betterment of (two) consenting adults. The self- fulfilment of adults is to replace the social institution centred on the wellbeing of children.

This emphasis on adult gratification has a number of profound consequences. First, it overturns the age-old understanding that marriage protects vulnerable children by placing on their biological parents the responsibilities for their moral and practical education and upbringing. It also ignores the overwhelming social science evidence that such as arrangement is optimal for the wellbeing of children and the welfare of society. Seana Sugrue notes the consequences of the state undermining the duty-based and child-focussed nature of marriage: “It increases the likelihood that marital duties, especially to children, will be abdicated and that adults will place their sexual desires above the responsibilities to their children.” Don Browning – a liberal in the American sense – wrote:

“Same-sex marriage does not simply extend an old institution to a new group of people. It changes the definition of marriage. It reduces marriage primarily to a committed affectionate sexual relationship. It goes further. It gives this new and narrower view of marriage all of the cultural, legal, and public supports that accrued to the institution when it functioned to hold together this complex set of goods.”

Professor Browning argued that same-sex marriage changes the purpose of the law. It would no longer serve in cooperation with other parts of society to channel behaviour and socialisation to achieve this synthesis of goods: “It will function to extend marriage privileges to a particular group of sexual friendships while excluding many other independent care givers.”

At the core of this debate is a central question: What is marriage? The proponents of a revisionist approach seek to appropriate the name ‘marriage’ for something different: an affectionate, sexual relationship. The apogee of this approach in which the protection of children is minimised and the associations of individuals is maximised was the assertion of the Canadian Law Commission:

“The state’s interest in marriage is not connected to the promotion of a particular conception of appropriate gender roles, nor is it to reserve procreation and the raising of children to marriage.”

The emphasis was underscored in the sub-title of the Commission’s report, ‘Recognising and supporting close personal adult relationships.’ The approach downplays the evidence about the protection of children, while appropriating the language of marriage to almost every other type of human relationship, all done in the cause of ‘relational equity’. Stephen Heaney observes: “If sexual intercourse between a man and a woman always and naturally led to the same outcome as genital contact between two people of the same sex – that is, pleasure, increased feelings of closeness, even affirmation and love, and nothing else – no one would have ever come up with the ideal of marriage.”

Redefining marriage will lead to a further weakening of marriage, because the core understanding of the institution would have been changed in the eyes of many people. The law would reinforce the idea that marriage is an emotional union, not a bodily union directed towards the begetting and protection of children. This will tend to increase marital instability. Moreover,

“Because there is no reason that primarily emotional unions any more than ordinary friendships in general should be permanent, exclusive, or limited to two, these norms of marriage would make less and less sense. Less able to understand the rationale for these marital norms, people would feel less bound to live by them. And less able to understand the value of marriage itself as a certain kind of union, even apart from the value of its emotional satisfactions, people would increasingly fail to see the intrinsic reasons they have for marrying or staying with a spouse absent consistently strong feelings.”

Redefining marriage also politicises the institution in a novel and dangerous manner, and extends the role of the state beyond its rightful place. Marriage exists independent of state power. It does not require the state to do anything. However, a redefinition of marriage can only occur by state decree. Marriage is no longer a fundamental institution of civil society, but a right, granted by the state. Instead of recognising and supporting the reality that a particular man and woman are parents of a particular child, the state usurps it. It indulges in what Tocqueville described as a “soft despotism” that undermines liberty and freedom. The libertarian, atheist writer, Brendan O’Neill, observes the consequences:

“It’s bad for those who are already married because it is part of an inexorable drive to throw open the institutions of marriage and the family to state snooping and bureaucratic remodelling … From the ferocious patriarchy of the Roman family to the idealised notion of the nuclear family in the 20th century, the institution of marriage and the units it gave rise to were considered deeply private. They shielded people from the scrutiny of the state; they were ‘havens in a heartless world’, as Christopher Lasch put it. Where we’re all subject to moral regulations in the public sphere, through marriage, a public expression of commitment that gives rise to a private unit, people could fashion an institution which they themselves created morality and forged relationships, free from state exertions.”

Once marriage becomes a creature of the state, the state can define marriage in any way. If same-sex unions are recognised by civil law, other arrangements can also be recognised. Once the state can no longer insist that marriage involves a commitment to a member of the opposite sex, there is no ground (other than superstition) for insisting that marriage be limited to one person rather than several.

A consequence will be greater state intrusion into family life. The state will be called upon also to create the social conditions to protect such unions. If the state can define marriage as something new and novel, it can define other arrangements. It can ‘educate’ people to accept this new arrangement, as has occurred in a series of cases in Canada. Freedoms, including religious freedom, subsequently come under attack. Even the understandings of ‘mother’ and ‘father’ are replaced by ‘parent 1’ and ‘parent 2’ or some similar language, as the normative foundation of marriage is destroyed.

It has been argued in Australia and elsewhere that people in other relationships, including same-sex relationships, were discriminated against, particularly in relation to their superannuation or pension entitlements. Such discrimination has been removed in Australia.

As superannuation is a new form of property, people should be able to dispose of it according to their individual choice. This did not require a redefinition of marriage. The appeal to international human rights conventions has been rejected by a number of tribunals. The European Court of Human Rights, for example, has upheld the view in two cases that there is no right to same sex marriage under the European Convention on Human Rights.

The idea that marriage must be radically redefined in order to protect other forms of relationships is mistaken. Continuing claims of discrimination are spurious, as are attempts to appropriate civil rights language to the cause of same-sex unions. The claims of discrimination fail to address the very nature of marriage.

The case for the legal recognition of same-sex unions is overwhelmingly based on emotive appeals to equality without defining any real inequality. The assertion that redefining marriage will not affect other marriages is misplaced. If the meaning of marriage is centred on adult affection and gratification, to the detriment of raising and protecting children, the new culture would affect all marriages. Otherwise the law has no normative influence. This does not mean that same-sex affection is less than other affections, but it is to recognise the difference between affection and marriage. The case for recognising as marriage, same-sex unions, rests almost entirely on the legal recognition of a committed, affectionate relationship. Neither this affection, nor the desire for community comity is a sufficient basis for re-ordering marriage.

Books

Andrews, Kevin (2014) Maybe ‘I do’ – Modern marriage and the pursuit of happiness [Connor Court]

Ritchie, Paul (2016) Faith, Love & Australia – The conservative case for same-sex marriage [Connor Court]

van Gend, David (2016) Stealing from a Child – The injustice of ‘marriage equality’ [Connor Court]