Australia’s Marriage Equality Debate: The Evolution of Marriage
Reading Time: 14 minutes
Religious conservatives opposed to marriage equality in Australia, routinely cite sacred texts that they claim support their position. However, such references to biblical endorsement of marriage appear to be little more than sanitised spin, designed to equate such traditional relationships with contemporary, heterosexual, monogamous, love based marriage celebrated in a church or in another place of religious worship. It is true that the Jewish Torah (known to Christians as the Old Testament) provides countless illustrations of marriage-like relationships entered into by well known Biblical figures.
However, what tends to be conveniently skimmed over is that virtually none of these ‘marriages’ would be sanctioned by current Australian law, and I suspect, none would be approved by Christian churches. The reasons for this are many. Almost all of these marriages were polygamous, wives had few if any rights and were considered to be their husband’s property. In many cases, the wives, concubines, and surrogates, did not consent to the marriage relationship. Ostensibly, men were given a divine right to take women as wives, while women were required to submit, and even raped virgins were required to marry their rapists. Consequently, the emphasis Christians have traditionally placed on monogamous, consensual, heterosexual and faithful marriage, based on love, stands in stark contrast to the marriages and relationships of even the most revered old testament Biblical figures, to the total absence of God’s condemnation or disapproval of such relationships, and to God’s commands mandating such relationships.
Much is also made of the (very few) New Testament references to monogamous, heterosexual marriage, and to restrictions on divorce. The scarcity of such references to marriages seems at odds with the ‘foundation of society’ and ‘sacrament of marriage’ status of marriage claimed by Christians today. Instead, I would argue that there is much more support for the view that in the New Testament marriage is presented largely as a distraction from preparing for Christ’s return, and that marriage is for those who are unable to be celibate.
The same sex marriage debate has already produced the most passionate, hurtful, and divisive views that I can recall. Australians have not yet managed to respectfully discuss whether the legal definition of marriage should be extended from ‘the union of a man and a woman’ to encompass same sex marriage, and hopefully be defined as ‘the union of two people’. To date, views expressed, particularly by those opposed to such reform, have been strongly dominated by slogans premised on unfounded allegations and statements. Senator Penny Wong has eloquently and passionately highlighted the damaging effect of disrespectful and hateful arguments. David Marr has also written a powerful, scathing response to Tony Abbott’s opening salvo of misleading misleading, scare-mongering, simplistic, and hate inciting slogans. I write this blog (my first ever) in the hope of contributing to a more informed debate.
The same sex marriage debate has already produced the most passionate, hurtful, and divisive views that I can recall. Australians have not yet managed to respectfully discuss whether the legal definition of marriage should be extended from ‘the union of a man and a woman’ to encompass same sex marriage, and hopefully be defined as ‘the union of two people’. To date, views expressed, particularly by those opposed to such reform, have been strongly dominated by slogans premised on unfounded allegations and statements. Senator Penny Wong has eloquently and passionately highlighted the damaging effect of disrespectful and hateful arguments. David Marr has also written a powerful, scathing response to Tony Abbott’s opening salvo of misleading misleading, scare-mongering, simplistic, and hate inciting slogans. I write this blog (my first ever) in the hope of contributing to a more informed debate.
Opinion polls have for some time consistently shown that a clear majority of Australians (most recently two thirds of the population) support a change in legislation to permit same-sex marriage.
In spite of this clear public sentiment, some conservative members of the government, determined to delay or defeat proposals for such legislative reform, somehow managed to persuade, or coerce Prime Minister Turnbull to go to the last Federal election with an undertaking to permit the electorate to have a say on this matter at a compulsory plebiscite, before Parliament would put the proposed legislative amendment to a vote in Parliament. Although the liberal party overwhelmingly renewed its commitment to the holding of a plebiscite, a fall-back position was announced. After the legislation approving the holding of the plebiscite twice failed to be passed by the Senate, a postal vote was announced. Consequently, unless the High Court upholds the challenge to the proposed voluntary and non binding postal vote, Australians will shortly have the opportunity to express their views on marriage equality. If the result of the postal vote favours the amendment of the Marriage Act, parliament will then consider and vote on the required legislative amendment.
Those opposed to the postal vote express concerns at the personal cost already already occassioned by the insulting, and offensive comments of the accompanying debate,. They also point out that while two-thirds of the population is in favour of the definition of marriage being extended, the government continues to insist on taking the matter to the people, while at the same time conceding that the outcome will not be binding on parliamentarians. On this basis it is fair to say that the government is intent on conducting what amounts to no more than another opinion poll or national survey at taxpayers expense (estimated to be $122 million). Ironically, it has been noted that in the space of one 2004 parliamentary afternoon, and at no additional cost to the taxpayer former Prime Minister John Howard (at the insistence of Tony Abbott) changed the Marriage Act definition of marriage to expressly prevent same-sex couples from being able to marry.
As expected, the loudest opposition to same-sex marriage has come from conservative religious churches, organisations such as the Australian Christian Lobby, and from their vocal representatives in parliament. The dishonest, arrogant, and unfounded claim of these groups to speak on behalf of Australian Christians must be challenged openly and repeatedly, as surveys clearly show that a majority of Australia’s Christians support same-sex marriage.
An argument frequently put by opponents of same-sex marriage is that, as marriage is a religious institution that has always involved the union of a man and a woman, those seeking to change the meaning of marriage should instead set up a separate institution and not call it marriage. At first the argument may seem persuasive but falls apart when considered more closely.
A preliminary point to make is that the proposed reform seeks to amend marriage as defined and administered by Australian law. Such a change is not intended and will in no way alter the concept and meaning of marriage as understood by religious organisations for purposes relating to the practice of those religions.
In the United Kingdom and Australia marriage has been regulated by the state and not religious organisations for almost two hundred years. In that time the institution of marriage has been changed significantly, causing civil marriage to become distinctly different to marriage as understood by Christian and other religions. The proposed extension of the institution of marriage can be shown to be a continuation of reforms commenced when the state took over the regulation of marriage from religious institutions.
Those interested in the historical evolution of the institution of marriage may wish to read my next blog, through which I outline the historical and biblical background to the same sex marriage debate.
Today, Australian Family Law courts require marriages to be free of coercion, duress and even emotional pressure for a marriage to be accepted as a voluntary union. Cohabitation, sexual consummation of marriage and love are no longer required for a marriage to be a valid marriage. Procreation used to be deemed the main purpose of marriage and as the Catholic Church’s grounds for nullity of marriage still demonstrate, the absence of the ability to have sex, fertility, and intention to have children used to be required for marriages to be deemed valid.
Unlike earlier adopted positions, the determination of a person’s gender for the purposes of marriage is not necessarily the one they were born with, but may be that which is legally recognised following their gender reassignment. The Australian Christian Lobby’s scaremongering that same sex marriage will lead to fluidity in the concept of gender is somewhat belated, as in 2011 the High Court unanimously ruled that the sex of a person is not in every case unequivocally either male or female, and rejected a strict male or female gender dichotomy.
In recognising that many people in our society may not be, or may not identify as, either male or female, the High Court may be said to have highlighted the desirability of replacing the words ‘man and a woman’ with ‘two people’. Only such a non gender specific definition will serve to ensure that all LGBTI people are provided with equal opportunity to marry.
A minister of religion does not have to officiate at a marriage ceremony as the validity of a marriage no longer depends on it containing any religious element or being solemnised in church. A marriage is also valid even though for example, parties may have lived together, do not believe in God, intend to have an open marriage or not to have children, and expect to divorce if they stop loving each other. Each of these elements constitutes a ground for annulment of marriage in the Canon Law of the Catholic Church.
The traditional Christian concept of marriage revolves around children and the indissoluble nature of marriage. In contrast, Australian law considers consummation of marriage, procreation, and intention to have children irrelevant to the validity of marriage.
While Christian churches either prohibit divorce or prescribe limited grounds of proven guilt, Australian law is no longer interested in allocating fault, only in evidence that a marriage has broken down irretrievably, in that unilaterally or by agreement parties to the marriage had separated and lived separately and apart for at least one year. This makes marriage a contract which initially parties must intend to last for life, while knowing that either can walk away at any time to end it.
The many reforms of the institution of marriage over the past two hundred years have included measures to address discrimination against non religious people, against women, and against miscegenation (marriage of mixed race couples) which was prohibited in many US states and only found to be invalid by the US Supreme Court in 1967.) It is worth noting that in opposing such reforms Christian and other religious groups put forward very similar arguments to those put in opposition to same sex marriage. The proposed extension of marriage to same sex couples could be said to be one further reform designed to eliminate discrimination. Earlier reforms flowed from changes in society’s understanding of gender roles, concepts of racial and gender equality, and the best interests of children.
Contemporary society and our courts no longer see gender as a binary but as a continuum. Marriage equality would permit people not identifying as male or female to also be able to marry. We recognise that a person’s gender may be attributable to routine adjustment of the genitalia of new born babies. A person’s gender may now be changed and that change noted on their birth certificate.
Despite the intense efforts of religious conservatives, and other opponents of same sex reforms, discrimination against gay men and lesbian women is being gradually eliminated. Legalising same sex marriage is arguably the last remaining significant area of legal discrimination. We must remember that the same groups that oppose same sex marriage, also opposed inter-racial marriage, no fault divorce, and the de-criminalisation of homosexuality. They have always argued that such reforms would result in religious discrimination against them. That is how the threat of losing the privileged position of determining the rights of others in accordance with their selective interpretation of religious texts must feel. This debate presents us with an opportunity to drive home the message that religious views and particularly those of unrepresentative extremists no longer determine the rights of Australians. Religious conservatives need to be reminded that freedoms carry responsibilities. Religious freedom does not come with a licence to deny rights to others, but with a duty to respect the beliefs, lifestyles and rights of others.
Another argument raised by opponents of same sex marriage, and which is at the core of the current debate, suggests that legalising same sex marriage would serve to discriminate against religious beliefs. As David Marr argues, this disingenuous argument does a poor job of hiding the disappointment of the privileged at being deprived of the power to dictate who can and cannot marry. It warrants reiterating that without the proposed legal reform same sex couples would continue to not be able to marry, whereas if the reform is implemented those opposed to same sex marriage will continue to be able to enter into heterosexual marriages. Ministers of religion will continue to be able marry only members of their religions. In this respect I stress that some religions will accept same sex marriages, some will not. The creation of religious marriage celebrants has been proposed by Senator Dean Smith, in his private members Bill. However it is not altogether clear why a person who by definition offers couples an alternative to a church wedding should be able to decline to officiate at same sex weddings.
Owners and operators of cake shops, wedding reception venues, and other wedding related businesses tend to be cited as examples of people who would be discriminated against if obliged to cater to same sex weddings despite their religious views on same-sex marriage.
Under current laws such people cannot turn customers away because they’re gay or lesbian. Do people who fear discrimination from legalised same sex marriage currently decline to do business with persons who offend their religious beliefs? If not, it could be queried, why they should be able to discriminate against same sex couples celebrating weddings. If however right wing parliamentarians have their way and exempt such discrimination from the application of anti-discrimination law, I would urge that such exemptions only be granted on application, as it is clear that religious freedom is being cited by some to mask their distaste for same sex marriage.
In responding to provocative arguments by religious conservatives opposed to same sex marriage, it is essential that we emphasise that we accept that freedom of religion be protected, but note that freedom of religion is not a licence to deprive others of rights by imposing your values on them. It is also crucial that dishonest and misleading arguments of opponents be constantly exposed as we know that catchy slogans appeal to the uninformed and impressionable.
SummaryRegardless of the inevitability of same sex marriage, it is imperative that religious marriage be clearly delineated from secular marriages under the state’s jurisdiction, in order to underline the distinction between civil and religious marriage. Only the civil definition of marriage matters for the purposes of Australian law. How a religion defines marriage only matters within that religious community and is not a concern for government authorities as long as religious concepts of religion are compliant with key legal requirements of secular marriage such as minimum age, consent and monogamy.
Those who oppose same sex marriage appear to be imposing their religious views on the rest of society. They need to be reminded that the law is not only there to protect religious freedom but also freedom from religion (or a particular interpretation of religion).
It is high time that Australia caught up to most other developed nations (including those that are highly religious) by recognising that religion no longer determines laws regulating our personal relationships, and that changing gender roles, societal attitudes, and our understanding of human nature and relationships have further changed the secular concept of marriage so as to grant all consenting adults the opportunity and right to marry.
It should also be noted that marriage as perceived throughout the Roman Empire at this time was a relationship unrelated to love. Married couples demonstrating affection in public were mocked. Instead, marriage was a means of uniting families or broader groupings, often a commercial arrangement, and a means of facilitating verifiable procreation and heirs to family property.
Marriage continued to be seen by many as an institution facilitating procreation and the protection of children, until quite recently, when the stigma of being an ex nuptial child or living in a de facto relationship virtually disappeared in our society and most other western societies.
In contrast, the vast majority of Australian marriages are now entered into by couples who have lived together – in contravention of Christian teachings prohibiting premarital sex – and only 1 out of 4 Australian marriages are currently entered into through a church wedding. On this basis alone it appears that very few Australians associate marriage with religion.
The following brief outline of marriage throughout history will hopefully shed some light on the nature of the institution and the interaction between marriage and religion.
In spite of claims to the contrary, it is simply a historical fact that relationships resembling marriage predated Judaeo-Christian marriage. It is also a fact that prior to the Christian era, in some societies, officially recognised relationships, include those between two persons of the same sex.
Briefly considering the institution of marriage during the Christian era, I note that marriage remained unregulated for the first few centuries, although the early church and civil authorities battled against polygamy, which remained common.From the 4th century the church required senior clergy to be celibate, and in so doing arguably demonstrated that it valued celibacy above marriage.
During the 11th and 12th centuries, restrictions on who could marry whom were introduced gradually. The church’s increased control and regulation of sexual relationships at this time culminated in marriage being recognised as one of the seven sacraments instituted by Christ. As a consequence marriage was required to be celebrated through a sacred ceremony in church. Because church weddings were previously unknown (although it was customary for a priest to be present at a wedding as a witness to the contract) it took several centuries before church weddings performed by priests became the norm.
Another key implication of marriage being declared a sacrament was that on being blessed in church the marriage union became indissoluble, although it was still able to be declared void.
Allegedly motivated by the prospect of more property being left to the church rather than heirs, the church increased the number of prohibited relationships – sometimes going too far and having to backtrack in the face of public opposition.
Until the 12th century it was customary for clergy to be married with children. Perhaps also motivated by property benefits, marriage by clergy was declared unlawful and invalid in 1139. As this required priests to abandon families and abstain from sex, clerical celibacy was long and actively opposed and consequently was not universally imposed until the 17th century.
The strong association between marriage and procreation provides the most persuasive argument for why Christian marriage remained heterosexual under the regulation and control of the church. It should also be noted that evidence suggests that at various times the church blessed homosexual unions and that specific religious services were written for such occasions. Perhaps, of greatest significance to the marriage equality debate, it has been suggested that as the basis of such same sex relationships tended to be romantic love, they were quite unlike other marriages at the time, but much more like present day marriages.
In England, from where we inherited Australian law, and whose laws we copied until recently, the Church of England had jurisdiction over most family law matters, including marriage until 1857. During one stage of the Church’s administration of marriage law the only way in which people could legally marry was, (irrespective of their religious adherance or beliefs) by marriage in a Church of England church ceremony.
In the mid nineteenth century Anglo-Australian law took marriage out of the hands of religious institutions and into the hands of secular law makers and courts. Since that time, the civil institution of marriage has been continuously reformed, leading to amongst other things, equal rights within marriage for women, and the relaxation of grounds for divorce. Nevertheless, while the state took over this jurisdiction, church law and influence remained.
Consequently when in 1959 the Australian Matrimonial Causes Act replaced differing State laws, it still reflected a number of church views of marriage. As the Australian Family Court’s Justice Nygh later observed, the Act still appeared to treat marriage as ‘a sacrament which had value in itself even where there was no living relationship to sustain it’. He also suggested that the 1959 Act’s concept of voidable marriage enabled a reconciliation between a distaste for divorce, with concern for parties imprisoned in marriage. It has also been said that the notion of guilty and innocent parties in troubled marriages reflected the religious view that the purpose of life was fulfillment of duty as a Christian rather than the pursuit of happiness. The Act’s 14 grounds of divorce initially began in 1858 as the biblical sole ground of adultery. The 1959 Act also reflected a husband’s proprietary interest in his wife (not replicated as the wife’s right). Thus he could sue his wife’s lover for damages due to his loss of sex, his wife’s unpaid work at home, and for persuading her to leave him. The biblical view that upon marriage husband and wife ‘became one’ was also interpreted to mean that neither party could sue the other, that the wife could not assert property rights independently of her husband (sadly, still the approach of some banks) and meant that as late as 1992 there was no such thing as rape in marriage. The 1959 Act also reflected ecclesiastical views about prohibited relationships, which included the prohibition on marrying a person related through marriage rather than blood.
Reflecting the views of atheist Labour Attorney-General Lionel Murphy, the Family Law Act 1975, abolished all grounds of divorce based on matrimonial causes, and replaced them with one no-fault ground for divorce, the irretrievable breakdown of marriage evidenced by 12 months separation.
In current Australian law, marriage is defined as ‘ the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. This definition echoes the words of an English judge (Justice Wilde) who in the 1866 case of Hyde v Hyde and Woodmansee held that ‘Marriage as understood in Christendom, may be defined as the voluntary union for life of one man and one woman to the exclusion of all others’. It is a shame that when this definition is now quoted, ‘as understood in Christendom’, it is never mentioned. Yet those words are an important reminder of the influence of religion on Australian law, which the Constitution requires should not prefer one religion over another, and should not impose religious observance.
As I outlined in my previous blog, while the sources of Australia’s law and definition of marriage clearly flow from the Christian tradition, an examination of our current law against ascertainable Christian concepts of law, reveals many key differences. The institution of marriage has been a reflection of societal values and needs as well as political goals of those administering the regulation of marriage.
Had John Howard not amended the Marriage Act to expressly make Australian marriage heterosexual, there was every likelihood that our courts would have followed courts in countries such Canada and the USA in finding that in contemporary society the meaning of marriage could no longer be confined to heterosexual relationships.
What history clearly reveals is that the institution of marriage has evolved significantly over time, responding largely to the needs of society. With the legal recognition of other comparable relationships, the reason why the secular institution of marriage exists in our current society no longer has anything to do with sex, children, legal rights, or God. It is a public declaration of love and a lifetime commitment to another person.
Anyone whose concept of marriage is that it must for example: be a union of 2 persons of the opposite sex, involve people committed to a particular faith, be a relationship between 3 parties (God), require parties to produce numerous children etc, is and will remain free to enter into such a religious marriage. That they believe that this what marriage is should have absolutely no bearing on what secular marriage is in this country.
Irrespective of the above arguments, the legal right of same sex partners and any other two adults in our society to marry is a fundamental right that should not dependent on anyone’s approval.
(Visited 30 times, 1 visits today)