Why state marriage is worse for marriage than gay marriage

My last post led to a war of words with a friend who is, shall we say, on the Orthodox side of things. We ended up agreeing to disagree – I think Israel should recognise Mazorti Judaism in its legal framework, he thinks it’s unfair to use the word “archaic” to describe the belief that women can’t be good leaders, because it has connotations of being outdated when that view clearly isn’t.

Meanwhile, I also had to explain my view on gay marriage to a different friend – who, thankfully, did not take quite as much of an issue with the Mazorti movement – and I saw a few Facebook conversations going on regarding the revelation that Tony Abbot has a gay sister and has *gasp* not shunned her. In fact, he treats her quite well.

Why is that a “shock”? Well, Tony Abbot holds the point of view that “marriage” is something that happens between a man and a woman. To numerous proponents of gay marriage, this means that he is a priori a homophobe. I definitely saw at least one comment thread (that I couldn’t comment on…) where someone accused him of trying to “hide” his “bigotry” through treating his sister well when he clearly is actually a bigot because he is against gay marriage.

This is a stupid argument to make. There seems to be this horrible tendency amongst fanatics to assume that anyone who disagrees with them must be doing so out of prejudice. I see it all the time with the Middle East conflict. Being anti-Israel is antisemitic, and being pro-Israel is Islamophobic and homophobic and sexist and normative and imperialist and neo-colonialist and… you get the picture. It also happens with immigration, feminism and plenty of other areas. It’s a very simple argument, it’s almost always wrong and it actually works against your point – no one is ever going to agree with you if you keep calling them a sexist because “Israeli occupation hurts Palestinian women as well as men”. Especially when you have a month-long summit on the global status of women and this is the only condemnation you could come up with – as if everything is fine and dandy everywhere else in the world (it isn’t). Yeah UN Commission on the Status of Women, I’m looking at you.

Big M little m

The problem is that they are arguing about different things. To gay marriage proponents, “marriage” is a right. To Tony Abbot, “marriage” means the marriage described by Lord Penzance in Hyde v Hyde & Woodmansee (1866) LR 1 P & D 130, at 133:

The position or status of ‘husband’ and ‘wife’ is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite rights upon their offspring. … I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.

When he said “Christendom”, he meant “Christendom”. He actually distinguished between “Christendom” and Turkey, where the Sultan had a whole harem of wives and “marriage” was between one man and one or more women.

Notice, though, there are two different components to “marriage” that the good Lord was talking about. Let’s call them “marriage 1” and “marriage 2”:

  • The first component is the “status” of husband and wife. As he said, this status gives the married couple certain legal rights and also may give rights to their children. What rights are these? Well Lord Penzance couldn’t pin that down, mostly because it varies from place to place. For a whole variety of reasons, marriage law is slightly different everywhere, although everywhere has some kind of marriage law.
  • The second component is this controversial sentence that half of Australia wants to remove from the Marriage Act and the other half is fighting tooth-and-nail to keep: “the voluntary union for life of one man and one woman, to the exclusion of all others”.

Protect what institution again?

This is why there is conflict. When Henry VIII broke from the Vatican and founded his own church, it was because he disagreed with the Catholic idea that you could not be divorced without approval of the Pope – and preferred the more progressive Anglican idea that you could not be divorced without permission from the King. He created the Anglican Church, appointed himself as its head, and declared that as the embodiment of the Church and the Sovereign, he could marry whomever he damn well chose.

So began the Anglican institution of Marriage that is now being strongly championed by Australia’s Catholic community – an involuntary union, forever, of one common church and one common law, to the exclusion of all others.

I believe that State marriage is destroying marriage. Enforcing marriage 2 in a legal system is done today in some Muslim countries and the results are horrible and inhumane. This is where adultery is criminalised  and punished – in some cases with death by stoning – or where boys and girls are married-off by their families for money or social status and then never permitted to separate. Thankfully, “Christendom” has become “the West” and we no longer have a taste for this kind of thing. What that means, however, is that marriage has been watered-down over centuries.

What does marriage mean today? To some, it means permanent residency in Australia; to others, it means a tax break; to others, it means a baby bonus; to others, it means inheritance. It also does not carry much weight – the idea of a union “for life” is disappearing throughout society. Marriage is becoming a temporary arrangement, whereby a man and a woman can join in a union for a few years, one gets an Aussie passport, the other gets some nice inheritance, and both get tax breaks. Meanwhile, neither of them “excludes all others” and they eventually get divorced, meaning that the whole “for life” thing didn’t happen either.

What I have just described is the legal institution of “marriage”, as it exists in Australia in 2012. However it may be defined in the Marriage Act, this is clearly not “the union of one man and one woman, to the exclusion of all others”. So here is my question: why would any Catholic like Tony Abbot even want to keep that? Let alone exclude two men or two women from being a part of it. And how is excluding gay couples from that institution “saving marriage”? Do you really think that allowing two people of the same gender to “marry” is the silver bullet that will tear down the institution?

Honey, we need a divorce

This is why the whole debate is so wrong. The people who want to “legalise gay marriage” do not want to change marriage 2, but they want gay people to participate in marriage 1. The people who oppose “gay marriage” want to preserve marriage 2 and so they refuse to change marriage 1.

To put it another way: marriage 2 does not discriminate – any person, regardless of sexual preference, is able to become part of a “voluntary union for life of one man and one woman, to the exclusion of all others”. Marriage 1 does discriminate – it gives legal rights to heterosexual couples and denies homosexual couples those same rights.

So what do I want? I want a divorce – of church and state. I want to sever the centuries-old union between legal marriage and Christian marriage and allow each to go back to where they should be: one in court, the other in church.

I want to abolish the Marriage Act and replace it with something called the Civil Unions Act or similar. An Act that would allow two consenting adults to be joined in whatever over-politicised legal mess they want, but would leave marriage out of it.

Marriage can go back to being “a union between one man and one woman, to the exclusion of all others” in substance and not just in name. Different religious denominations could marry whoever they want however they want and could choose whether to recognise each other’s marriages according to their beliefs. The State would no longer need to be the arbiter of who can and cannot call themselves “husband” and “wife”.

My bet? Marriage would mean something again, because it would be something that people do when they believe in it. It also would also mean that marriage advocates could concentrate on things that would actually save marriage – like more accessible couples therapy and childcare.

Gay marriage is not the issue, there are plenty of provisions in the Marriage Act that have already eroded marriage beyond recognition. We need to stop talking past each other on gay marriage and realise the real enemy here – the Marriage Act. If you want to save marriage, stop making it a political issue and let it be about morals again.

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  1. #1 by pinkagendist on April 16, 2012 - 9:16 am

    That sounds like real progress to me… 😀

  2. #2 by Wayne on April 16, 2012 - 9:32 am

    Would you believe me if I asked you to explain what you are trying to write?

    You seem to argue against gay marriage as opposed to godly marriage. But, in some places you get rather ambivalent.

    Thanks

    Wayne

  3. #3 by MK on April 16, 2012 - 4:41 pm

    Wayne: I am trying to write that marriage should be in the private domain and should be defined by the institution conducting the wedding. That means that “Godly” marriage would become more “Godly” as it would no longer be tainted by the compromises that have had to be reached by virtue of marriage being a State institution.

    Re gay marriage: yes, it would mean that two men or two women could hold a ceremony and call themselves “married” (as they can now), but no one would be under any obligation to recognise this as a “marriage”. It won’t be a State-sanctioned wedding, but that won’t be a problem for anyone because there would be no State sanctioning of weddings.

    Essentially, everyone would be entitled to live as they choose without having to fight over the definition of a legal institution.

    • #4 by Greg on July 16, 2012 - 8:30 pm

      Major Karnage, rather than trying to divert the debate away from the issue of gay marriage under the Marriage Act by proposing fanciful ideas about how we could have multiple definitions of marriage where “different religious denominations could marry whoever they want however they want and could choose whether to recognise each other’s marriages according to their beliefs”, it would be more helpful if you would in fact equivocally state your position on gay marriage.

      Your characterisation of marriage is being merely a means to permanent residency, a baby bonus or tax breaks, is cynical in the extreme and misleading. The fact is, the institution of marriage, despite its changes, still serves an important place in our society.

      It would be helpful if you stopped conflating the issue of the decline of the institution of marriage, with the right of same-sex couples to be afforded the same rights as heterosexual couples under the Marriage Act.

  4. #5 by Greg on July 16, 2012 - 8:51 pm

    *”unequivocally state your position on gay marriage”

    • #6 by MK on July 16, 2012 - 10:06 pm

      I’m confused. I don’t see how you could possibly write this:

      The fact is, the institution of marriage, despite its changes, still serves an important place in our society.

      And then write this:

      It would be helpful if you stopped conflating the issue of the decline of the institution of marriage, with the right of same-sex couples to be afforded the same rights as heterosexual couples under the Marriage Act.

      I’m especially confused as to how I have in any way “conflated” the two issues, or how the two are at all separate. Surely the debate about gay marriage is, in reality, a facet of the overall debate of the place of marriage in our society; and, surely you cannot have a debate about the place of marriage in our society without discussing the decline of marriage as an institution.

      You demand that I “unequivocally state [my] position on gay marriage”. I have been perfectly clear on this point, but it is not really what you are asking.

      Your real question is: do I think same-sex couples should have the same rights as heterosexual couples under the Marriage Act? The question is loaded. I can’t say “yes” or “no, because I fundamentally disagree with your premise – I am opposed to the current system of state-sanctioned marriage. I believe that YOU are conflating the two issues of legal rights attaching to a marriage contract under Federal Law versus marriage as a social institution.

      As I said, I have made my position clear on both points. I do not believe that a person with a state license should be given a mandate to award a “marriage” contract to a couple as a form of official recognition of marriage, I believe that marriage should be a private affair between people who decide to get married, regardless of gender, religion or any other variable. I don’t think that state recognition of this is necessary or desirable. Beyond that, I think it should be up to individual institutions to determine whether or not gay marriage is something that they want to sanction and I do not presume to intervene in their business.

      I also don’t see how this is so fanciful. We already have perfectly adequate laws for de facto couples that requires them to demonstrate co-dependancy before they qualify for legal rights and protections – why should anyone be able to bypass that requirement because they hold a ceremony?

  5. #7 by Greg on July 17, 2012 - 11:26 pm

    “Surely you cannot have a debate about the place of marriage in our society without discussing the decline of marriage as an institution” – Really? I don’t think it is contradictory to say that while marriage no longer holds its same sacred place in society; that marriage rates are falling and divorce rates have risen, it still has an place in society.

    My question is not loaded. It’s a simple question that is being put to politicians at the moment, and none of them have any issue in forming an opinion. I don’t see why you are incapable of answering it. I can only take the view that what you’re trying to do use use pithy excuses and sophistry to skirt around your position on whether or not same-sex couples should be allowed to marry. This issue affects peoples’ lives and their well-being; it requires well-considered reasoning and sensitivity, not this type of sensationalist rant and implausible drivel.

    Now in your article you also suggest that the Marriage Act should be replaced by “something called the Civil Unions Act or similar. An Act that would allow two consenting adults to be joined in whatever over-politicised legal mess they want, but would leave marriage out of it…… Different religious denominations could marry whoever they want however they want and could choose whether to recognise each other’s marriages according to their beliefs.” I’d love to hear you flesh out the Civil Unions Act a bit more – what, for example, would happen to those couples who don’t belong to a religious institution? I presume the State, in which case your desire to leave the Fed Govt out of marriage fails. Law 101 tells us that good legislation has a high degree of ‘certainty in its meaning’ and a ‘high degree of enforceability’ and I’m quite certain your repealing of the Marriage Act and replacing it with a some type of Civil Unions Act would fail both limbs of this test.

    • #8 by MK on July 18, 2012 - 1:00 am

      Ok, well:

      I don’t think it is contradictory to say that while marriage no longer holds its same sacred place in society; that marriage rates are falling and divorce rates have risen, it still has an place in society.

      You’re right, it is not contradictory, but I never said it was contradictory. What it is doing, however, is discussing the decline of marriage as an institution – which is what I said you would have to do. I also never said that marriage has no place in society. To the contrary, I have been discussing at length exactly what its place is in society and what it should be.

      It’s a simple question that is being put to politicians at the moment, and none of them have any issue in forming an opinion.

      That is completely untrue. Many of them are having issues in forming (or articulating) an opinion. The reason I refuse to give an answer that would satisfy you is that you are too fixated on extending to same-sex couples a system that I think shouldn’t exist.

      As for your final paragraph, you are still too fixated in this idea that marriage must be state-conducted. There are plenty of people who could perform a marriage ceremony who are not representatives of the government.

      Who should do it? That’s completely up to the people getting married. It could be a community leader, some other mentor figure who means a lot to the couple, a comedian/actor, a private company offering professional wedding MCs – the possibilities are endless really. The couple could even choose to hold their own ceremony between themselves with no third party instructing them, or they could choose to have their friends and family conduct the ceremony for them. I don’t see why the person must have any form of state license.

      And finally, I thought that I had been clear when I said this:

      We already have perfectly adequate laws for de facto couples that requires them to demonstrate co-dependancy before they qualify for legal rights and protections – why should anyone be able to bypass that requirement because they hold a ceremony?

      What would replace marriage legally is really quite simple. The current laws governing unmarried couples would be extended to married couples. They would be afforded rights according to demonstrated co-dependancy, the way all couples are if they haven’t signed a sheet of paper in front of a government official.

      There is nothing uncertain or unenforceable about that. Every state has extensive legislation on it already and there is a body of case law going back centuries.

      • #9 by Greg on July 18, 2012 - 11:26 pm

        Politicians may be reluctant to publicly express an opinion on the issue of same-sex marriage because they often have to stay in-step with their party’s policy on the matter. You cannot claim such an excuse.

        “The reason I refuse to give an answer that would satisfy you is that you are too fixated on extending to same-sex couples a system that I think shouldn’t exist.” – This is the utter rubbish.

        Whether or not you think marriage, as provided for under the Marriage Act, should exist, does not make you incapable of expressing an opinion about introducing provisions to the Act for same-sex couples. I can only take your silence on the matter to mean that you’re satisfied with the current wording of the legislation in terms of marriage being between ‘a man and a woman’ and would be happy if the status quo was maintained.

        Your philosophical musings about marriage and the Marriage Act are all very interesting, but this Act is not going to be repealed any time soon, so to somehow link this discussion with same-sex marriage; an issue that is very topical and poignant at the moment, is laughable.

  6. #10 by MK on July 19, 2012 - 11:16 am

    I can only take your silence on the matter to mean that you’re satisfied with the current wording of the legislation in terms of marriage being between ‘a man and a woman’ and would be happy if the status quo was maintained.

    How you can infer that is beyond me, given that I have explicitly said that marriage shouldn’t be defined at all in legislation and that I am calling for a far more radical overhaul of the status quo than you are.

    I don’t see how my ideas are so abstract or “out-there”. The current legislation contains a system, you are advocating a different option and I am advocating a third option. Maybe my preference is not politically popular at the moment, but on the current numbers, gay marriage will not be inserted into the legislation either.

    Gay marriage was not popular or realistic until it was, that’s how these things work. I am not the only person advocating this point of view and I know several people who agree with me who are affiliated with everything from Labor left to the Liberal right — it is the best solution for everyone.

    The most prominent politician that I know of who has advocated for private marriage is the current government whip in the NSW upper house. Sure it’s not the Prime Minister, but it’s definitely something.

    I don’t see why it is so unrealistic for the political will to deregulate marriage to be mustered. I actually think that it’s more likely than gay marriage in some respects, as it is a policy that appeals to the right as well as the left.

  7. #11 by MK on July 19, 2012 - 1:13 pm

    Ok, see here for a more extensive explanation: http://majorkarnage.net/2012/07/19/gay-marriage-musing/

  1. Malcolm Turnbull on gay marriage: so near and yet so far « Major Karnage
  2. Gay marriage musing « Major Karnage

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