Nicholas Harrington

Keep it civil: A solution to the same sex marriage issue for all

Approx Reading Time-12It seems that the same sex marriage issue will roll on in perpetuity, thus, the proposal of a radical yet simple solution that will sate all parties.

 

 

 

Australia seems beset by an inordinate struggle over the notion of same-sex marriage. It strikes me that the opposition may not simply be anchored in homophobia, but also in the age-old tension between progress and tradition – a perpetual rivalry between the established status quo and revisionist insurgents who want to disperse privilege throughout society so all can enjoy it (which necessarily means the original power holders have a diminished concentration of authority – something fuelling their resentment). This is not to suggest that discrimination on the basis of sexual orientation and identity doesn’t exist in Australia. It most certainly does. I register the above because I believe it’s possible to be opposed to gay marriage without being opposed to the LGBTIQ community as such. Accepting this reality might help put a proposal on the table that all sides could get behind.

To determine a fix, let’s first lay out the sides of the argument:

Case A: Advocates of same sex marriage believe that all people in society should have access to the same rights of partnership and union under the law – that to deny these equal rights to people on the basis of their sexual orientation is patently discriminatory.

Case B: One dimension of opposition to same sex marriage suggests that while LGT people have a right to a partnership under the law, it should not termed be a “marriage” since this institution is derived from the Church, and therefore the religious definition of marriage (between man and woman) should apply.

Case C: The second dimension of opposition to SSM is based on a belief that being LGT is unnatural and therefore should not have legislation in its favour.

Case D: Neutral observers (perhaps atheists) who currently enjoy marriage as the de facto form of legal partnership watch, curious to see if their situation changes.

Immediately, we should recognise that we are trying to reconcile cases A and B. Case C is an unfortunate position to hold because it can form no part of the discussion. Society has moved beyond those who hold these opinions, so sadly their interests must be disregarded when legislating in our democracy. Case D enjoys marriage not because of any particular belief system but because it was the institution the government determined for them when they wanted to enter into a legally recognised partnership. Case D should be satisfied in principle with whatever agrees with cases A and B.

I’m going to advance one possible solution to the question of same sex marriage in Australia. It may appear on the surface radical, but perhaps it’s not iconoclastic after all.

Wanting marriage to mean something “more” than a “civil union” is really to ask for the very thing that cannot be granted: a privileged position in society (under the law) on the basis of a religious belief.

I propose to strike the term “marriage” from the Australian constitution and replace it with the term “civil union”. Further the “Marriage Act of 1961” should be superseded by the “Civil Union Act of 2017”. I suggest that all persons in Australia, regardless of sexual orientation or identity, if they enter into a partnership that is to be recognised under the law, be defined as enjoying a “civil union”. The religious enjoy a civil union, the LGBTQI community will enjoy civil unions, atheists, Satanists – everyone will enjoy a civil union. The government should not be in the marriage business: not defining it, not granting it, not licensing it, and certainly not offering a referendum upon it.

If persons want to get “married” then they should do so in, and only in, a church; under the auspices of their preferred religious institution, and according to the dictates and scriptural prescriptions of that religion or denomination. As the definition of marriage is expanded or contracted within these religious institutions, so too would the scope of who can be considered to be married. Importantly, only the Church can undertake this redefinition, not the government. Importantly, the term marriage should carry no legal authority. Marriage should revert to a purely religious institution with no power under the law. Once a Church wedding has taken place, the marriage certificate can be submitted to the government author for automatic registration as a legally recognised civil union.

To my mind, by engaging with these proposals, we achieve a number of important outcomes.

  1. Marriage remains a religious institution and the sanctity of its significance is retained. The religious can feel protected in their faith, and free from the concern that their institutions are under attack from the changing social composition of our democracy.
  1. All partnerships are recognised equally under the law. No “kind” or “type” of partnership is privileged above another. There is indeed only one: the civil union – into which two persons may enter regardless of sexual orientation or identity.
  1. The notion of a separation between church and state is now more faithfully respected. If we indeed have a secular constitution then the idea that an article of law be so heavily weighted within Judeo-Christian social history appears inconsistent. Indeed, for those that consider marriage an essentially religious institution, surely they can appreciate it has no place in constitutional law or parliamentary legislation.
  1. The idea of marriage as religious symbol, covenant, or institution is not altered or distorted. Any change to the encompassment or meaning of marriage will be determined by the Church, not by government.
  1. As we expand the terming and definition of what constitutes a “civil union” under the law (which is always a possibility given the fast pace of social change), we avoid the need to go to battle each and every time over the very same ground.

To those who feel that they lose something from this change, I would say the following: the significance of marriage is in no way diminished. If it is sincerely held that marriage is a covenant between a man and a woman, before God, to take place in a church – then this is preserved – nothing is lost. If however, the feeling remains that something is lost since it is not the recognised term under the law – then what is really being asked for? It would appear that wanting marriage to mean something “more” than a “civil union” is really to ask for the very thing that cannot be granted: a privileged position in society (under the law) on the basis of a religious belief.

“Render therefore unto Caesar the things which are Caesar’s, and unto God the things that are God’s”

I believe all partnerships should be equal before the law regardless of sexual orientation or identity, while at the same time I believe we should respect the traditions and institutions that have been passed onto others by their descendants. Rather than change the definition of marriage (which is a thing unto God), let us remove it from the constitution (a thing unto Caesar) and devise a new and meaningful secular partnership institution that embraces all persons in society. I’ve suggested calling this a civil union…I’m not wedded to that name (pun intended). The term is less important than the principle that underpins it: the government should not be in the marriage business.

 

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