April 3, 2012
John Murphy, Melbourne
John Murphy is a civil celebrant
currently studying Australian History at
Monash
University
. He is a
retired librarian and a former Catholic priest. He is married to Monica and they
have three adult children and seven grandchildren.
“CAN
I THEE WED?”
SAME-SEX
MARRIAGE IN
AUSTRALIA
The
issue of same-sex marriage in
Australia
is fraught with associated problems which
confuse the central issue. These problems range from a
residual opposition to
same-sex relationships on the social and political
level to the religious consciences of those who see them as sinful and immoral.
Opponents of same-sex marriage claim that allowing such couples to marry will
lead to a degrading of marriage in society and, indeed, to the value of family
life itself. Simply speaking, the floodgates will open and society will be
consigned to the slippery slope where values and morals become redundant.
Understandably, emotions
are running high.
Rather
than have recourse to the classical history of ancient
Rome
and
Greece
where, it is claimed, same-sex marriages were
accepted and
formalized (until proscribed in the Christian Church by the Theodosian
Code of 324 CE) it would be more illuminating to scrutinize more recent
history. In the last forty years same-sex love has gone from being a
criminal offence, and subject to persecution and violence, to being
recognized by legislatures around the world. Laws have changed to reflect
positive developments in the areas of property ownership, superannuation, and
inheritance; correspondingly, negative elements
have been eliminated by laws which outlaw various forms of
discrimination in housing, employment, healthcare and even religious
groupings. In 2008, for instance, in
the state of
Victoria
legislation was passed (Relationships Act 2008)
allowing a record of enduring relationship to be established, even
retrospectively, which can then be used in evidence to substantiate the actual
“life” of a relationship. This is referred to as “registering a domestic
relationship”.
Objectors
distinguish between this laudable advance in liberal democratic
rights and the much more serious step of legalizing same-sex marriage. They
claim that such a step is totally unnecessary as rights are already
protected and enshrined in our laws – so, why put heterosexual marriage and
the family unit in danger? Some of
these people are even happy to endorse civil unions which formalize same-sex
love in a way similar to marriage. The sticking point, of course, is that these
unions cannot and should not become marriages in the same sense, socially and
legally. Proponents of change talk in terms of a minor word change to the
Marriage Act of 1961 but opponents see this as simplistic and having huge social
ramifications.
Article
#16 of the UN Declaration of Human Rights states: “Men and women of full age,
without any limitation due to race, nationality or religion, have the right to
marry and found a family. They are entitled to equal rights as to marriage,
during marriage and at its dissolution.” The right to marry, therefore, is
recognized as a basic human right and applies to all men and women equally.
Equal opportunity for gay couples in permanent care orders (close to but not the
same as adoption), surrogacy and IVF technology also seems to confirm this
right. It seems contradictory that one right is recognized and not the other.
An
obvious roadblock is our definition of marriage. In most people’s experience
marriage means man, woman, and procreation. Over the years, however, not all
couples choose to have children and couples marrying or re-marrying in their
sixties and seventies are unable to. Can our definition be revised to reflect
these relationship changes? The answer must be yes. Two hundred years ago wives
were regarded as legal property of husbands. In the past, divorce was forbidden
by law. Inter-racial marriage was once outlawed but is now accepted. The forces
of history, tradition and common parlance argued against these changes.
Civil
marriages comprise 70% of all marriages in
Australia
, and increasing, and almost the same percentage
of Australian citizens favour same-sex marriage. This figure, too, is on the
increase. Research reveals that, since 2001, a growing number of countries have
legislated in favour of same-sex marriage: these include the
Netherlands
,
Spain
,
Canada
,
South Africa
,
Norway
,
Portugal
Mexico
,
Sweden
,
Belgium
,
Iceland
and
Argentina
, and some six American states. In other places
such as
Israel
and
Tasmania
governments recognize same-sex marriage but do
not perform them. While some argue that such growing numbers do not
automatically make it right nevertheless some democracies are able to recognize
and accept differences in sexual preference and are prepared to use political
will to protect the rights of all its members.
When
it comes to sexual preference some people feel decidedly uncomfortable. They
manifest an unwillingness to be involved in the discussion and refuse to engage
in any decision-making about it. They baulk at what seems such radical and risky
change. On what is their fear based? Surely
we have gone beyond the AIDS threat, paedophilia and a sense of moral
repugnance. If some find it hard to believe that two gay people can love each
other with as much passion, sacrifice and generosity as married couples, then I
can understand their reluctance. Surely advocacy,
testimonies, familiarization and self-education will help us support those gay
people who have a deep desire for marriage equality.
Not
all gay couples are advocating same-sex marriage so what drives those who
desperately seek marriage equality under the law? Already they enjoy legal
protection and a sense of financial security. The
UK
Civil Partnership Act 2004, for instance,
provides for recognition of rights relating to property, inheritance, social
security and pension benefits, next-of-kin rights and life insurance, amongst
other rights.
Are
we talking then about more than just a marriage certificate? Is it an issue of
personal identity? Is it about having a place in society where people can
recognize who you are and be aware of your marital status? Heterosexual couples
assume this as a matter of course. From the highest governing body down to the
simplest family barbecue gathering people know where they stand and how they
relate: Mr. and Mrs. Citizen receiving official mail; owning and operating joint
bank accounts grants a certain authenticity to (or at least a vote of confidence
in) the marriage relationship; employers sometimes preferring the seeming
stability of a married person; spouses enjoying visitation rights in hospital;
recognizing the status of parents attending parent/teacher interviews. These
scenarios can represent legal and emotional minefields for gay couples. Two gay
partners may very well have their own personal and individual sense of identity
and enjoy a strong sense of their healthy relationship as a couple. Society,
however, remains ambivalent and would welcome some kind of validation.
For
all these reasons I am compelled to argue that men and women have the right to
marry whomever they choose. It is a matter of justice and basic human rights,
under the law. We have to face this dilemma sooner rather than later.
Politicians and political parties in
Australia
are divided on the issue and the end result is
political caution. The Christian lobby was influential in the Howard
Government’s tightening of the Marriage Act of 1961, through the Marriage
Amendment Act 2004, to specify that “marriage means the union of a man and a
woman”. Is there a suitable way
forward which will satisfy those agitating for change and placate the anxious?
The old adage of “politics being the art of the possible” is never more
applicable.
France’s custom could well merit our serious
consideration. There, all couples are married under civil law by the local
Mayor. Couples and families are then free to celebrate their own marriage
rituals in their traditional place and manner: culturally, religiously or
secularly. The secular reality of marriage is thereby affirmed and religious
communities retain responsibility for their own sense of the sacred. Adapting
this model in
Australia
for same-sex marriages would also clarify
boundaries between church and state.
John
Murphy
Student
ID: 23302666
Word
count: 1277
John Murphy is a civil celebrant
currently studying Australian History at
Monash
University
. He is a
retired librarian and a former Catholic priest. He is married to Monica and they
have three adult children and seven grandchildren.