I've been ignoring the election, largely - not that my mind hasn't been on it. Far from it. Though it's a comparatively minor issue as things go, I was interested in Julia Gillard's response, on Q and A, to a question by an extremely nervous young women on gay marriage. Under Rudd, of course, the government undertook a sweep-out of legislation which discriminated against same sex couples. All to the good, but it had the unfortunate effect of highlighting what they didn't reform. On Q and A Gillard re-emphasised Labor's attitude towards same-sex marriage:
'the position of the Labor Party, which we worked out at our national conference, is we believe that the Marriage Act should stay in the same way that it is now, so marriage would be defined as marriage between a man and a woman..'At the time of these changes, I felt that Labor's holding out on gay marriage was driven at the top, by the religious Rudd. However, the Labor party endorsed the Marriage Amendment Act in 2004, before Rudd was leader. Gillard, an atheist, has since endorsed the Rudd government's position, on Q and A and elsewhere. tonight. Yet, as before, nothing resembling an argument has been presented. The line has simply been 'we see no need to change it'. The argument is implicit, and it is an argument from tradition. Marriage has traditionally always been between a man and a woman. The Marriage Amendment Act was intended to enshrine that tradition in law.
It's interesting that this issue has come up again, in the light of the recent ruling that California's Proposition 8, banning same-sex marriage, was unconstitutional. Of course the legal issues in the USA are very different from what they are here, but the ethical issues are much the same, and some are discussed at talking philosophy, most notably the tyranny of the majority.
However, having done my little bit of research, I note that the Marriage Act first became law only in 1961, and, apparently, it didn't stipulate that marriage had to be between a man and a woman. This was only made specific by the amendment of 2004: Here is the 2004 Marriage Amendment Act in full:
1 Subsection 5(1)
marriage means the union of a man and a woman to the exclusion
of all others, voluntarily entered into for life.
2 At the end of section 88B
(4) To avoid doubt, in this Part (including section 88E) marriage has
the meaning given by subsection 5(1).
3 After section 88E
88EA Certain unions are not marriages
A union solemnised in a foreign country between:
(a) a man and another man; or
(b) a woman and another woman;
must not be recognised as a marriage in Australia.
That's it: very short, if not too sweet. The amendment, introduced by then Attorney-General Philip Ruddock, received bipartisan support in the Federal parliament, though there was very vocal dissent from Andrew Bartlett of the Democrats and Bob Brown of the Greens.
It's a kind of weird testament to the growth of the pro gay marriage lobby that this amendment was introduced – for the specific purpose of excluding marriage between same sex couples. Bob Brown described the amendment as 'hateful', and it's very clear that it has no purpose other than to discriminate against same sex couples.
The argument used by the Liberals who introduced this amendment was that the institution of marriage 'needed to be protected' - they didn't add 'against homosexuality and homosexuals' but that was clearly what they meant. I cannot myself see how the acceptance of same-sex marriage endangers marriage as an institution. It is hardly a self-evident claim. It needs to be backed up. The opposition Labor party, in supporting the government, avoided making a statement of principal, merely claiming that the amendment brought the Act into correspondence with the common law definition of marriage. This simply shifts the philosophical issue over to the common law definition.
So first let me look at the legal issues from an Australian context, then I'll look at a general historical context, and then I'll return to the philosophical or ethical issues.
First, the Australian Constitution, Section 55 [xxi] gives the Commonwealth government the power to make laws in respect of marriage [however defined]. Section 109 of the Constitution gives Federal law priority over State law, in cases where there is a contradiction. That's to say, the Federal law invalidates State law. The Marriage Act 1961, and the Marriage Amendment Act 2004, are therefore nationally binding.
Of course, where same sex couples are concerned, the legal definition of marriage is absolutely crucial, so it's worth noting that the High Court, according to this research note from the Parliamentary Library, 'has not given any detailed consideration on the meaning of the term marriage'. What we have is a lot of individual High Court opinions on various case over the years. For example, back in 1908, J Higgins gave this view:
Under the power to make laws with respect to 'marriage' I should say that the Parliament could prescribe what unions are to be regarded as marriages.
This leaves it completely open to the Parliament to the decide upon the very meaning of marriage. On the other hand, in 1962, J McTiernan took this view:
The term marriage bears its own limitations and Parliament cannot enlarge its meaning. In the context-the Constitution-the term 'marriage' should receive its full grammatical and ordinary sense: plainly in this contest it means only monogamous marriage.
McTiernan here doesn't expand on these 'limitations' and plainly relies on a 'common-sense' definition of marriage - i.e. monogamous and, presumably, heterosexual. However, in the same case, J Windeyer dissented:
It has been suggested that the Constitution speaks of marriage only in the form recognised by English Law in 1900 ... and that therefore the legislative power does not extend to marriages that differ essentially from the monogamous marriage of Christianity. That seems to me an unwarranted limitation. Marriage can have a wider meaning for law.
In 1984, J Brennan took much the same line as McTiernan:
The scope of the marriage power conferred by sec. 51 (xxi) of the Constitution is to be determined by reference to what falls within the conception of marriage in the Constitution, not by reference to what the Parliament deems to be, or to be within, that conception.
Unfortunately, this resort to the Constitution is unhelpful, as the Constitution comes nowhere near defining 'marriage' with any exactitude. In later opinions, Brennan took a different tack, as for example, here:
The nature and incidents of the legal institution which the Constitution recognises as 'marriage' ... are ascertained not by reference to laws enacted in purported pursuance of the power but by reference to the customs of our society, especially when they are reflected in the common law...
The emphasis is mine, and I will have more to say about customs later. In 1999, in an opinion that related specifically to same-sex marriage, J McHugh had this to say:
... in 1901 'marriage' was seen as meaning a voluntary union of life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably 'marriage' now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.
This little tour of High Court opinion is, I think, sufficient to show that there is no obvious legal barrier to Parliament legislating for same-sex marriage. Common law changes with custom, and custom changes all the time.
Which brings me to a brief historical consideration of the custom of marriage, and of attitudes to homosexuality.
Not surprisingly, some of the most vocal opposition to same-sex marriage comes from traditional established religion [the Catholic Church] and, in the Christian context, those denominations that, though sometimes modern in formation, are essentially reactionary in outlook. These groups tend to go on about the 'sacrament' of marriage, the 'union of couples with God' and so forth, and they're usually connected with a strong homophobic tendency. However, the idea of marriage as an essentially religious institution doesn't stand up to scrutiny. Taking only a Christian perspective, marriage - contractual and solemnized and ritualized - has predated Christianity by thousands of years. It formed the bedrock of the so-called pagan society that Christianity was born into, and of course it has been and still is fundamental to societies uninfluenced by Christianity. In Japan, a marriage ceremony conducted by religious authorities alone, no matter which religion, is not even considered legal.
Marriage is a universal custom, but the arrangement varies in detail from culture to culture. However, it is true to say that it has always, until recently, been between a man and a woman [or between a man and a girl, or a boy and a girl, and more rarely between a woman and a boy, but that certainly has happened, legally - to say nothing of polygamous and polyandrous marriages]. So why not accept that it should always be between a male and a female? After all, the reason for marriage's universality is surely that it provides a relatively stable environment for the raising of children. Gays don't breed, so what use do they have for marriage?
Such an argument could be used to prevent marriage between people who are beyond child-bearing age, or between sterile couples, or between couples who, as in the early days of Christian asceticism, preferred to remain celibate within marriage. In short, there are many weird and wonderful reasons why people choose to marry, and few would think it conscionable to prevent people from marrying if they had no plans to produce offspring. It follows that gay couples, too, would have a variety of reasons for wanting to solemnise their relationship [including, quite possibly, the raising of children].
Of course, the reason why marriage has always, until recently, been between males and females is not hard to seek. Homosexuality, in the past, has been 'beyond the pale', more or less universally. So beyond the pale, in fact, that, until a few generations ago, the idea of homosexual marriage was practically inconceivable. This, of course, explains why marriage has never had to be spelt out as between a male and a female. It is absolutely vital to recognise how completely attitudes towards homosexuality have changed in the west, despite the rearguard actions of reactionaries. It would be no exaggeration to claim the change as revolutionary, and historically unprecedented. Let me give a graphic illustration. Only a little over a hundred years ago, the famous writer Oscar Wilde was found guilty of 'gross indecency' and sentenced to two years' gaol with hard labour, a punishment that destroyed his health, and finally his life. 'Gross indecency', it should be noted, was a lesser crime than 'sodomy', which consisted of consensual sex with other males, something that occurs today in bedrooms throughout the country on a regular basis, and with complete legal sanction. It's worth remembering that, at the time, the presiding judge apologized for the leniency of the sentence, which he described as 'totally inadequate for a case such as this', though it was the maximum sentence he was able to give under law.
How things have changed, and surely this change is as permanent as a change can be, for we can't return to a state of innocence after having eaten the fruit of the tree of knowledge. Our current understanding of homosexuality is based on science and on history. We know that a certain percentage of the human population, regardless of which nation or culture they belong to, will be predominantly homosexual in orientation, and that this percentage has remained stable, as far as we're aware, through human history. We also know that, despite being abominated, reviled, tortured, executed, and having their existence denied for century after century, in civilization after civilization, people have acted on their homosexual desires, having, after all, the same need for sexual satisfaction, love, tenderness, affection and long-term companionship as everyone else. And in modern times, in western countries, they're actually able to celebrate their sexual orientation in a public manner. It's an extraordinary and invigorating development.
It's because of the extraordinariness of this development that we cannot look to tradition in the case of marriage. To turn to tradition is to return to the kind of exclusionary, discriminatory, abusive attitude towards homosexuality that we've finally [though of course not completely] managed to escape from.
I repeat, tradition is not an argument. So, is there an argument, a real argument, for refusing to allow homosexuals to marry? I would like to hear one. The religious argument [which essentially amounts to 'god hates faggots'] is easily brushed aside. What else is there? There is only 'marriage needs to be protected from homosexuality', in other words, a mean-spirited, petty-minded refusal to allow homosexuals their place in the sun, their place as true equals.
The Marriage Amendment Act of 2004 will be seen, historically, as a tragic-comic moment in Australian history. It will be overturned, I'm one hundred percent certain of that, and when it is, people will wonder at how such a rearguard action against egalitarian values was allowed to get through so easily. They will wonder particularly at the supineness, the cowardice and the hypocrisy of the Australian Labor Party of that period, in failing to rise to the occasion, and instead joining with the illiberal coalition in enforcing the tyranny of the majority. We wait impatiently for something more enlightened than what is on offer at present.