Gay marriage is definitely on the agenda at the moment both here and in the USA. Here Saturday 1 August (by coincidence the official birthday of all horses in the Southern Hemisphere) is set as a National Day of Action. Prime Minister Kevin Rudd is numbered among those unwilling to alter the definition of “marriage” in the Marriage Act, although most of the legal barriers in gay civil unions have been removed during his term of office. The current Marriage Act (1961) defines “marriage” as involving a man and a woman.
There are those for whom the issue is simple: this act is discriminatory. It is analogous, they would say, to a citizenship act limiting citizenship to a certain race. Therefore just as we would legitimately see such a citizenship act as racist, so the current Marriage Act is homophobic and those who defend it are thus homophobes.
I don’t think it is quite so simple. For a start I very much doubt that K Rudd is a homophobe, but he is a politician who knows that the majority of Australians may not be ready for such a transformation at the deepest legal level of the definition of marriage. I know others of that opinion who are by no stretch of the imagination homophobic, though it is quite certain that your actual homophobes would oppose changing the Act. K Rudd may also be acting out of conviction, not out of political expediency or strategy – the second if you wish to be less cynical.
It seems to me – and this is not original as I first heard it proposed some years ago by Justice Michael Kirby – that the problem is the dual function of the Marriage Act as it stands. Here you get to a position the non-religious Right (libertarians for example) may well support: that it is not the business of government to define “marriage”. It is the business of government to set parameters in terms of age and species (excluding, for example, marrying a goldfish) and incest and to set the rights and responsibilities of those entering into a civil partnership so delineated. Such boundaries are needed for all sorts of reasons such as tax, social security benefits, visitation rights in hospitals, insurance, superannuation, and so on.
The other part of the current Act, however, is rather different. It involves privileging one kind of partnership or union which has the blessings of tradition and Church and Synagogue. Excluded are gay and lesbian “marriages” and polygamous or polyandrous “marriages”.
The solution is to regard civil unions or partnerships as a legitimate area for government, but to leave religious definitions of marriage to individuals and their faith communities. In a religious ceremony one would still “sign the register” under such a Civil Unions Act, but the sacramental side would entirely be a religious affair not in itself needed to make the union legitimate. Some religious groups would limit marriage to men and women, others may not. The Metropolitan Community Church, for example, would clearly conduct religious ceremonies for gay and lesbian partnerships, the Uniting Church may do, the Catholic Church probably would not, and Muslims may be entitled to sharia on this matter.
If you look at Some light rather than heat on non-standard marriages, a post from October 2007, you will see that I am now in the camp of The Rabbit and my ex-student David Smith on this one. As David commented then:
I agree with the Rabbit. Take the state out of marriage altogether. I know a gay activist from Utah who said that he was beginning to see the possibilities of a political alliance on this issue. Legal polygamy, like legal gay marriage, would “hurt” other people because it dilutes what they see as the definition of the holy sacrament of marriage: the union of one man and one woman. I don’t see any point in trying to downplay the subjective pain that this causes to conservative religious people, nor do I think that it’s the role of the legislature to try and educate them out of their prejudices. But that pain would only be felt because the universalising laws of the state would lump the traditional man/woman sacrament, polygamy and gay marriage into the single legal category of “marriage.”
If, as The Rabbit suggests, the state doesn’t recognise any marriages, this gets rid of most of the problem. It is much easier to accept the existence of something you see as abhorrent if the state isn’t actively endorsing it. Marriage would then become the domain of churches and private agents who would be free to impose whatever strict standards they wished in order to certify it.
My proposal above is a little more radical, however, as (just to make clear) I am suggesting there should not be anything called a “Marriage Act” but rather a universal “Civil Unions Act”.
Related: Email to a Megachurch Pastor by Anthony Venn-Brown (Australia).