Making marriage equal

I’ve been trying to reconcile competing commitments I’ve had for quite a while. Let me state up front that none of the positions I advocate in this post are positions of my church. This is all my personal opinion.

First, I’m in favour of marriage equality. I am strongly of the view that same-sex and different-sex relationships ought to be treated exactly the same under the law. It is a next stage to de-pathologising homosexuality in our society and removing legal discrimination against GLBT citizens. We are tantalisingly close to that reality in Australia, so close in fact it seems silly not to close this gap.

Second, I’m against legal marriage in general for several reasons. One is that marriage is an ancient, cultural and religious practice with various political and moral connotations some of which are quite lovely and some of which are simply awful. Most people who get married think they can pick and choose between those connotations, but their ability to really do that is circumscribed by the cultural embeddedness of the institution.

Another is that I think it’s reasonable to claim, reading the Constitution, that the founders of Australia intended it to be a secular society (which I understand to mean government and the state independent of religion, rather than the abolition of all religion). Regardless of their intent, I think religion and politics rise to their greatest social benefit when they occupy separate and distinct social realms. Marriage law is one of the few places under Australian law which muddles the two, which is why religious groups appear to have so much say in what is a legal and civil rights issue.

To illustrate that tension, consider that the Marriage Act defines what a marriage celebrant is. There are two kinds, civil and religious. Religious marriage celebrants are authorised by the religious denomination. The list of recognised denominations (PDF) is defined by a vice-regal proclamation. The Australian constitution prohibits the government from establishing a state religion and, as far as I know this is the only place under Australian law which comes close.

Marriage in a legal sense is a very special kind of corporate entity it’s a certain kind of legal partnership. The cultural/religious rite (let’s call it “matrimony”) is the sanctification of a human relationship by cultural and spiritual practices. Sometimes obscured by the legal and cultural veils is the actual human relationship between two human beings in love. Legal marriage doesn’t make that relationship, in fact sometimes it makes it a great deal harder than it needs to be.

What makes this all a bit odd is this concept we have called “de facto relationships“, which are almost identical to marriage except that the legal entity is formed by co-habiting for a couple of years, rather than by paying some money to a civil celebrant or convincing a priest you love each other. Ironically, at the federal level at least, same-sex de factos enjoy exactly the same rights and responsibilities as different-sex de factos. Which form of legal partnership more accurately follows the reality of a relationship, the one where you can get married at the registry office on a drunken whim or the one where you have to keep a household together for two years?

My third commitment, as a priest, is to an understanding that it’s valid to anoint the spiritual character that the bond of love between two people displays. The sacred encounter between two people which opens into love and devotion is one of the most effective modes human transformation ever devised. Matrimony is a blessing and acknowledgement of this encounter with the Divine in the face of the Other.

So, I’ve come to a position which allows me to maintain each of these commitments about which I’m passionate. It’s actually quite simple:

Repeal the Marriage Act.

Remove all references to marriage from all three layers of government, retain civil partnerships formed solely through the current de facto arrangements. If there situations like immigration which require a relationship to be registered before two years have elapsed then allow a couple to register themselves as “intended partners”, a fact which could grant them a temporary visa, which becomes permanent when they become actual de factos.

Make matrimony a cultural custom which religious and cultural organisations can define however they wish, with no legal force. Some couples may decide to undertake matrimony before they become de facto partners, some after – it’s up to them. Churches like mine and the Unitarians and the Buddhists will continue to marry gay and lesbian couples and the Sydney Anglicans and the Roman Catholics can continue to refuse and… well… who cares, really?

I’m far from the first person to suggest this, but I thought I’d add my voice to a growing chorus. I argue that this proposal “retains the sanctity of marriage” more effectively than religious groups trying to maintain control over an aspect of federal law, which pollutes both religion and politics in a manner which I find increasingly abhorrent. I’m not pretending there aren’t some wrinkles to iron out, but I think this is the right way to start.

It’s not too late to make this a reality. It actually serves the demands of all parties better than most of the current suggestions. It’s simple. It’s bold. Let’s do it.

Repeal the Marriage Act.

I’ll make the t-shirts if you’ll wear ’em.

UPDATE: Just wanted to add a shout-out to Julian and Tailsteak who got here way before me. If you know other people making the same argument, please link ’em up in the comments.

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3 responses to “Making marriage equal

  1.  I’ll wear the t-shirt.

    http://www.somethinkodd.com/oddthinking/2009/12/05/on-the-marriage-act-1961

    The biggest (only?) wrinkle I haven’t managed to iron out is immigration: Is it reasonable to give special status to the spouses of citizens? I feel the answer is yes, but can’t see how to manage that without some recognition of marriage.

    • Julian:  It depends on what you mean by “spouse”.  If you are referring to a partner in the legal package of rights and responsibilities currently under the umbrella of “marriage” but which Tim, I, and others are proposing to stop calling marriage (we generally say “civil union” in the States), then why couldn’t the immigration aspects simply be rolled into that package (as I presume they already are, albeit in the guise of “legal marriage”)?  Tim even addressed immigration already in his post.

      If you are saying that there should be special status given to the partner bound by the cultural or religious but legally irrelevant concept of matrimony proposed by Tim, I, and others; then I would have to respectfully disagree.  There should be no such special status.  As long as we accept that immigration is a legal matter, then it has nothing to do with Tim’s matrimony.

      [I thought this was all very clear by your own post on your own blog, especially after the series of comments you and I left there.]

      • I see, to my embarrassment, that Tim did actually touch on this. I must have been nodding too hard as I read, and missed it. Sorry. Thanks for pointing this out.

        Tim proposes a registry of relationships. I fear that might get abused (e.g. registering as your boss’s partner, to get  a two year working visa, before declaring that the relationship failed and that you are not claiming to be de factos.) but nonetheless, is worth some consideration. It may well be made workable, despite my initial concerns.

        I agree with you that immigration belong in the “legal” aspects of civil unions, and not in the area of “matrimony”, as defined by Tim. I think we can continue this discussion of the finer points in the original forum.

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