The Australian government, still in the period of meeting its election promises, has legitimised the relations between homosexual couples so that they now have the same rights as defacto couples, which is long overdue. But they didn't quite get it right. Why not?
They didn't allow gays to get married. The reason is that, as the attorney general, Robert McLelland, said, "the government regards marriage as being between a man and a woman and we don't support any measures that seek to mimic that process."
Why not? Where is it said that marriage must be heterosexual? Answer: only in a religious tradition, especially in Christianity. Society has moved past that restriction, but the present government, for all its undoubted virtues as a reforming government, is ruled by religious believers, including the very (but rather sensibly otherwise) religious Kevin Rudd, PM.
So I say this: there is no secular reason for restricting marriage to hetero couples. It only hurts the progeny of gay and lesbian couples, and is discriminatory, even in the light of the Australian constitution which says (§116):
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
So I say that failure to make marriage available to homosexual couples is not constitutional.
Maybe the government finds it unpalatable to be the one that makes marriage available to gays and lesbians. In that case, I have already proposed what I think is a good solution: make "marriage" something that governments have no part in, and replace it with a civil union contract. Governments have no place in making people behave according to any moral code; in a democracy it should follow rather than lead the community, since the democratic source of legitimacy is the community, not the government. As marriage is seen as a moral issue, get right out of it and let the community do its thing. The religious can restrict it (in their churches) to hetero couples. Muslims can insist that Muslims only marry Muslims, etc. And gay and lesbian organisations can marry who they like.
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"Where is it said that marriage must be heterosexual? Answer: only in a religious tradition, especially in Christianity"
I completely agree, which leads me to wonder why we don't approach this whole thing the other way around. Since marriage is religious, then why not insist that government get out of the "marriage" business altogether, and let that be managed elsewhere, and instead have the civil government only be in the business of managing civil partnerships?
Just a thought ... although I am curious to know why I don't see this thought more often.
But why should couples who have romantic feelings for each other and/or want to have to sex with each other to be privileged over couples who simply want to set up a home together in order to increase their financial and psychological stability?
Take a look at the two elderly sisters who have been told by the courts that when one of them dies the other will have to pay inheritance tax even if it means selling their family home. Why shouldn't they, as a couple, have been entitled all these years to the legal benefits and protections of married couples?
My preferred long-term solution is for governments to get out of the marriage game. My realistic short-term solution is to support gay marriage. I've come around to thinking that these are compatible, which I once doubted.
Marriage isn't religious. Or at least, not solely. I got married by a Justice of the Peace in a restaurant, with no religion involved.
So did I. So? The view that heterosexual couples are the only ones that qualify for marriage is religious. And prior to the middle of the nineteenth century, only the wealthy and middle class got married: because marriage was a way of ensuring inheritances. Other than that, marriage has no secular purpose, and if the Australian and other governments permit partners irrespective of sexual preference or gender to inherit, then those governments have discharged all their duty with respect to the community's need for marriage. Saying who can and cannot get married once one is an adult is not a role government has any part of.
Agree with the notion that governments should stay out of the marriage business,and there is a religious agenda at work here,whether that is unconstitutional in Australia or not.
Whats more scary is what John said in his post about the Religiosity of Mr Rudd and part of his government.I can very well remember the kowtows to the fundies during the election campaign,and Im rather worried we might end up with scenarios like in the US some day in the not to distant future.
"Marriage isn't religious. Or at least, not solely. I got married by a Justice of the Peace in a restaurant, with no religion involved."
I was married at a restaurant too. By a civil celebrant, who is gay, and whose legal marriage from another country is not recognised in Oz, and who had to say loudly and clearly - thanks to the Attorney General - that marriage is between a man and a woman. And by law, we had to use the words "husband" and "wife" somewhere in our vows or the ceremony wasn't legal.
*sigh* Stupid stupid.
John, should your proposed civil unions apply to only couples or should threesomes or more be entitled to civil unions?
As I said in the first post, civil unions could apply to friends, sibs, couples, or any other arrangement that is an exclusive relationship (not necessarily or even always sexual). Consider two old mates who have shared a shack in the countryside for twenty years. Why couldn't they have a civil union to prevent one losing his accommodation if the other died?
"It only hurts the progeny of gay and lesbian couples, "
???
It would seem the humor found there is unintentional.
tw
What humour? Do you think that because someone is gay their sperm is rendered infertile? Or that because lesbian, their eggs are now unable to germinate? Do you think that gays can't find surrogates for their kids, and that lesbians can't find sperm donors for theirs? Do you imagine that because someone is gay they always lived as gays? Or that lesbians are never with kids from a previous hetero marriage?
Where have you been?
I think the test will be in how the Federal government responds to the ACT. (I live in the ACT). Our Chief Minister is determined to pass ACT Labor's civil unions bill again under the new Federal government. Despite the outwards show of "not supporting" gay marriage, overturning territory legislation is a different ask to making it Federally mandated.
Once established in the ACT, then it becomes harder to deny it in other states and territories. I suspect the Northern Territory is looking at its euthanasia legislation again for the same reason.
Wow. In a sad way, it's nice to know that we here in the US don't have the market on stupidity cornered. Looks like we're just more stubborn about it, eh?
I agree, from this side of the ocean, that governments that claim to be secular should relegate themselves to enforcing contracts, not controlling the parties to the contract. It would solve a lot of problems here; make marriage a religious issue unrelated to civil law, and require couples who wanted to share benefits or properties file contracts, complete with requirements and remedies.
But we're WAY too stuck on that word (marriage) for such things to ever take place.
Our friends and neighbors here in Toronto are a married gay couple who have five children between them. Both of them were in denial about their orientation until they were in their late thirties or early forties.
I'm also in the government should get out of marriage camp. I'm just not sure how to sell that to people, though, at least in the US or Canada (haven't been here long enough to figure out how that would fly).
regarding the sentiment that government should get out of marriage...
What sort of living arrangements we make, whether as singles, couples, triples, whatever, should be recognized as a life-style choice. As far as I'm concerned, the only restriction on choice here should be the requirement that all such relationships must be consensual. To index any basic rights and responsibilities to a particular life-style choice is absurd -- no, obscene.
What about religious homosexuals? If churches can still refuse to marry homosexual couples you still have a rights violation; they shouldn't be able to legally discriminate on this basis. Your "solution" is just a fatalistic sop to bigots.
It is also not the government's role, or that of the wider society's, to enforce rules of behaviour for religions. If a member of a church feels discriminated against by their church, they have two options: agitate to change the mind of their faith community, or leave it.
But note: because they can't get that church to marry them doesn't mean they cannot get another church to do so. Here in Australia I am willing to bet the Uniting Church would be happy to marry gays and lesbians. The market would resolve this pretty quickly.
It is also not the government's role, or that of the wider society's, to enforce rules of behaviour for religions.
You must mean that in a very narrow sense. Because, I want my government (via police) to stomp all over religious bigotry and vice.....And arrest the guy who says he's gonna kill or damage me in the name of his delusion....
No, I mean it as I said it. If a government enforces rules of behaviour for religions then it is interfering in the private affairs of citizens just as much as if it enforces religious rules for the non-religious. What you are talking about are general principles that enjoin upon all citizens and institutions, not merely the religious ones.
Don't you think any protections against discrimination apply to religious institutions? Should a church be allowed to refuse to marry an interracial couple? I don't think this is a an issue of church-state separation; religious institutions are still subject to law.
No I think that any non-state institution or institution acting under internal rules rather than those mandated by law (such as employment laws) should be free to discriminate so long as none are harmed (for values of harm that are pretty rigorous, and exclude "mental anguish"). Nobody is forced by circumstance to join or engage in a faith community. If they are, then they must abide by its rules. If they don't like the rules, then they have the two options I mention above - change the rules internally, or leave.
A state in which the government can change private institutional rules for good reasons is equally capable of changing internal rules for bad reasons. I would, as a lesser evil, wish for a state that lacks that power.
John,
Your use of the term secular is problematic. As you may well know it refers to an arrangement where the people of the church keep out of matters of the city of men, but whose rules are still drawn up based on the guidelines of the canon. The protestant reformation did away with the church as an intermediary between the two cities - that of man and of god - leaving men to seek god through their conscience. In such an arrangement church doctrine is used to separate the religious and the secular.
Rimpal, words, and societies, evolve through time. "Secular" may have meant that once, when society was organised upon "Christian" lines. Now we can pull that particular ladder up behind us - we need it no more. The two kingdoms doctrine of Luther and the reformation no longer acts to support secular society - since the democratic revolution, that depends solely upon the will of the people, and in many societies, including my own, religious practitioners are in the minority. Even if they were all but the whole population, our social constitution implies that one religion may not impose its view or values upon non-members of that religion.
Re: #11
'Progeny' has a distinct biological meaning, not something brought to a relationship from outside, like a set of luggage or a table lamp.
Sorry: "It only hurts the progeny of gay and lesbian couples," still seems more humorous than possible.
tw