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What harm would same-sex marriage do?

Don Edgar

Should Sesame Street's Bert and Ernie be allowed to marry, as a same-sex couple setting new norms for the world of children's TV? Prime Minister Julia Gillard would probably not agree. Gillard insists that her 'conservative upbringing' will not allow her to accept marriage as anything other than the union of a man and a woman. Presumably her conservative upbringing was put on hold when she decided to 'live in sin' with her male partner Tim Mathieson. She cites no religious reason for opposing gay marriage, being a professed atheist, merely the conventional past. She seems not to understand that marriage under the Act is already a 'civil union', not a fixed moral law or a religious sacrament to be preserved at all costs.

The looming Labor Conference debate on gay marriage will be a defining moment not just for the Labor Party but for the whole of Australian society. Already several States recognize what they call 'civil unions' which give same-sex partners equal rights to medical decisions if one is ill, to state superannuation and property distribution rights if they split up. The Marriage Act is under the purview of the Commonwealth, not the States and Prime Minister Julia Gillard is being called upon to allow a conscience vote in Parliament to test the waters. That is what should happen.

Marriage has a long and varied history, of which opponents of gay marriage seem to be ignorant.?

With very few exceptions, marriage has been monogamous, secular and personal. It was an arrangement between two families (the two individuals had varying say) for the purposes of regulating the natural sexual instincts of young people, consolidating and managing family property, ensuring procreation and the passing on of a legitimate family name, and protecting the rights of both partners (though more the male's than the female's) and the rights of children born or raised within the marriage.

Gay marriage threatens none of these traditional goals. Indeed it may make for greater social stability and certainly ensure the equal rights of all partners who agree to accept marriage's legal obligations and responsibilities.

In early Greek and Roman times marriage was virtually compulsory, the single man being ridiculed and denied important public roles. Even the Spartans who openly practised homosexuality had to marry and have children. It was good for society. As Demosthenes put it, "We have prostitutes for our pleasure, concubines for our health and wives to bear us lawful offspring." The word 'lawful' is the key word here. It was St Paul who wrote, "Better to marry than to burn." (1 Corinthians 7:9) Nowadays you don't have to. But marriage still serves important legal and social purposes. Islam enjoins its adherents to marry 'for the greater community'.

Early Christianity accepted Roman law, with marriage seen as a civil and private arrangement, but stopped penalizing singles because celibacy came to be seen as a desirable state. It stopped the barbaric northern European practice of 'sale marriage' (which gave us the wedding ring as a down payment on the full 'bride price' paid on delivery) and thus improved the status of women and gradually civilized marriage customs. Indeed in Europe, even after the Catholic Church declared marriage was a 'sacrament', it was still seen to spring from the free consent of two partners.

Most marriages throughout history were not religious, but what we call common law marriages - some consensual, recognized simply by living together for one year, others marked by a commitment ceremony with witnesses. Up to the tenth century, most such ceremonies took place outside the church door and it was not until the thirteenth century that the priest took charge. It was a practical, economic affair, a union of convenience which improved the capacity of an individual man or woman to survive and thrive and joined two families in mutually advantageous kinship. To say that marriage was not yet a 'romantic' matter of love and personal choice (given arranged marriages and patriarchal control) ignores both the sexual urges of youth and the reality that even intimacy after rather than before marriage can lead to love.

But the 16th century Protestant Reformation set the cat amongst the pigeons. Luther declared marriage 'a worldly thing' that belonged to the realm of government. Calvin agreed. So the Catholic Church's ?response at the 1563 Council of Trent was to denounce all common law marriages, insist on having unions ratified by a priest and two witnesses. It imposed complex impediments to marriage (through the 'banns') such as blood relations to the seventh degree, family affinity and godparent relationships and, most significantly, it abolished divorce. The Catechism of 1566 spelt out the definition of marriage as a union between a man and a woman (i.e. heterosexuals only) and indissolubility for life, 'until Death do us part'. This is the bottom line for those who oppose homosexual marriage.

The Church hung on for centuries, losing the battle against secularism and the power of the State, but not against a broad acceptance of that basic definition. The French Revolution made civil marriage compulsory, regardless of whether a church service was held; Bismarck imposed State control over the institution of marriage in the 19th century, returning marriage to its traditional status as a legally binding economic and social contract between two consenting adults. This was an important step in the bureaucratic rationalizing of modern society. The poet John Milton was a bit ahead of his time, arguing that divorce was a must when mutual love was lacking and marriage had become a sham. But it is that sentiment that informed the new no-fault divorce laws of the twentieth century, based on the breakdown of an agreement between two equal partners. It is the quality of the relationship that matters.

This left the protection of partners' and children's civil rights as the main reason for having a legally recognized marriage of any kind. Today, sex is easy to have outside marriage, and long-term sexual partnerships take the place of formal marriage for many. In countries with an over-population of youth, such as China (with over 18 million more young men than women) social instability threatens with bride kidnapping and hormonally riotous (and often unemployed) youth having no ready outlet. They may have to encourage homosexual relationships!

The problem then is no longer the regulation of sexual behavior, but the legal rights and responsibilities of the partners and the care of children. The economic value of mutual care and financial support through marriage is clear from the growing cost of welfare support for single mothers and research clearly supports the view that two parents are better than one in the raising of children. A violent or unhappy marriage is not good for children, but divorce also often involves ongoing conflict, unstable housing and schooling, poverty and disadvantage. Australia's marriage rate has declined by a quarter since the 1980s. We should be encouraging and supporting marital stability, regardless of the sex of the parents.

Marriages are no longer arranged, between families; mutual consent is all that's required. If gay couples want to marry and declare a lifelong commitment, to make their love and mutual support public, what harm can there be in that? Far better to have a publicly declared commitment than an unstable sexual relationship lacking any legally binding and reciprocal responsibilities and social obligations.

In Australia, we have already recognized that 'de facto' couples are virtually the same as legally married couples: they have equal rights to shared property, finances, superannuation. Their children (whether natural, step or adopted) have rights of care from both de facto parents in the same way as do children of married parents, and those parents have a shared responsibility to care for them after separation. It is ironic that the law recognizes this more unstable form of relationship but denies recognition to same-sex couples who want to take on the legal obligations of formal marriage. Significantly, in recognizing the social reality of couples 'living together', the law insists on their responsibility to children and on the economic equality of the partners.

There is no reason why this should not hold with homosexual couples, but the law currently does not recognize the rights of gay partners, or the rights of children, who may be born of one natural partner, with a donor parent, or even a surrogate parent, in the same way as married couples can become parents through adoption, surrogacy or in vitro fertilization. Case after case can be found of lesbian couples agreeing to one partner conceiving, having a child, then breaking up and the 'birth mother' denying the other 'parent' access to their mutually agreed-upon child. Neither married nor de facto couples can get away with that.

Being a parent is not just a biological fact; it is a social status which carries responsibilities to the child. There have been traditional societies where several 'visiting uncles' have sex with a woman who conceives; then one visiting male is nominated as the social 'father', regardless of whether genetics would prove him to be the biological sire, and he carries that responsibility to help raise the child for the rest of its life. That form of social parenting is, in our society, made 'legal' parenting where a child is adopted or artificially engendered, and any child whose family is so dysfunctional they cannot act as responsible parents is made a ward of the State as the 'legal parent'. While we might argue that no adult has the 'right' to become a parent (a notion that leads to anguish when they cannot conceive), every child born through whatever technique, has the 'right' to have two parents - we designate two parents as responsible for each child's upbringing. That is why it is of more import to resist single-motherhood, or single-person adoption than it is to resist homosexual adoption, same-sex marriage or mutually-agreed conception.

So the remaining objection to same-sex marriage is religious and moral. ?Given that church and state are supposedly separate in a secular democracy, to continue insisting on a religiously-derived definition of marriage is an historical anomaly. ?The law long ago took control of the marriage contract away from the Church, but it left intact the notion that only a man and a woman could legally be married. Legislation should keep up with changing social norms. In Australia, we have legislation preventing discrimination on grounds of sexuality, yet this is a clear case of sexual discrimination. Social norms round sexuality are much more fluid and despite some continuing homophobia there is widespread acceptance that sexual preference is no-one else's business. Well over half the population supports same-sex marriage; three-quarters believe it will eventually become a reality.

Australia is out of step with most of the Western world. Countries such as Sweden and Norway have long recognized same-sex marriages. The British Civil Rights Partnership Act covers virtually all the rights of marriage. Several US states have legislated for marital equality, the federal government under Bush moving rapidly in its 1996 Federal Defense of Marriage Act to deny federal recognition of those State laws. No US State has to recognize same-sex marriages ratified in other States, but the new Act did not forbid States to allow gay marriage. Same-sex marriage is still discriminated against through taxation and social security, so equality has not been achieved.

Similarly in Australia, the Howard Government moved to consolidate the 'man/woman/for life' definition of marriage, despite the fact that, for 100 years after federation in Australia, marriage had remained undefined. As Justice Alisdair Nicholson pointed out, even the Family Law Act (S43) injunction for the Court to have regard to 'the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life' was not really a definition at all. It harks back, he says, to Lord Penzance's 1866 definition which even then flew in the face of the 1857 provision legalizing divorce. Nicholson is unequivocal in stating that discrimination against same-sex marriage is in contravention to the International Covenant on Civil and Political Rights provisions relating to non-discrimination and to arbitrary interference in privacy and the family. And the High Court of Australia in 1996 observed that the concept of marriage was never frozen in time. Nor, it must be noted, was the acceptability of homosexuality, even within the confines of religion. Social practices and norms change and, in time, the laws must recognize that change.

Finally, it must be noted that in those countries that have already recognized gay marriage, the evidence is clear: it does not undermine social morality or lead to undesirable effects. On the contrary, in Sweden, heterosexual marriage rates have increased 30 per cent; similarly in Denmark, with the added result of lower divorce rates and fewer children born out of wedlock, both surely desirable outcomes. Canada reports a lower divorce rate for same-sex couples and the American Academy of Pediatrics reports that children with gay parents fare as well as those with heterosexual parents on all measures of emotional, social, cognitive, and sexual functioning. Studies repeatedly find that marriage benefits the health and wellbeing of the partners too. It is (as with single-parent, step, de facto and married couple families) the nature of the relationships within that family that matter, not its formal 'structure' or type.

The Churches (and Australia's Labor Government) have to accept that marriage serves secular needs, not spiritual goals. Marriage is a fundamental social institution which recognizes and regulates adult couple relationships. In the Canadian debate about same-sex marriage, Ottowa Justice Laforme held that a 'civil union' is still an 'alternative' status, equivalent to the segregation of black and white students in pre-Brown vs. Board of Education US civil rights times. The State already controls the institution of marriage as a secular institution; it is the State's responsibility to guarantee the rights and responsibilities of all adult partners and of children born from or being cared for within that partnership.

As a matter of individual choice, couples with religious beliefs can already opt for a church marriage (the church being registered by the State to certify legal marriage), though over 60 per cent today choose a non-church ceremony using a registered civil celebrant. The Church could still insist on not conducting or recognizing any same-sex marriage (being immune from anti-discrimination laws) but that would be irrelevant to same-sex couples who simply want full legal recognition of their commitment to one another. Where the State must continue to be vigilant is in the area of mutual care and responsibility for children who may become part of that same-sex marriage (by whatever path), and in ensuring that gay partners have the same financial and legal rights as those already granted to both heterosexual and de facto couples.

Legal recognition is not the same as moral approval and same-sex couples have done no harm, so we should get over whatever ingrained repugnance some may feel towards homosexuality and allow those who want to live within the legal restrictions and obligations of formal marriage do so. The current law is out of step with changing social norms which, history shows, are never immutable as human relationships adapt to new circumstances. Indeed, recognizing same-sex marriages as equal in the law to heterosexual marriages ?may reinforce the ongoing historical reality that marriage is 'an honorable estate' which 'should not be entered into lightly'.

 Dr Don Edgar was founding Director of the Australian Institute of Family Studies and is a member of the Victorian Children's Council. His latest book, co-authored with Dr Patricia Edgar is 'The New Child: in search of smarter grown-ups'. See www.patriciaedgaranddonedgar.com