For many years I wrote in defence of the traditional and religious definition of marriage. I spoke to and wrote for conservative and religious audiences in Australia and overseas. I tried to describe, and by doing so preserve, the meaning of traditional and religious marriage in a public square denuded of religious concepts.
There came a time, however, when I realised that the thing I was describing, this idea of traditional and religious marriage that I believed was (and still believe is) worth defending, was not at all at risk from reforming the Marriage Act. It just clicked. What I actually meant when I described marriage was Catholic marriage: a sacrament. That will not change with careful reform of the Marriage Act to allow for same-sex civil marriage.
While the Commonwealth recognises Catholic, Jewish and other religious marriages after the fact, which muddies the water a bit, civil marriage is an institution deliberately removed from the sacramental economy of the Christian Church. Civil marriage eschews the beliefs of any religious body. Parliament can reform the Marriage Act, then, to allow for same-sex civil marriage and, if the changes are handled correctly, the reform can have no effect whatsoever on religious marriage in Australia.
While there are many threats to traditional and religious marriage, including no-fault divorce for church-blessed unions and the disintegration of gender roles, alongside the decline in adherence among some religious communities, properly legislated same-sex civil marriage need not be one of them.
After many long years of argument, it is clear that I primarily objected to changes to the Marriage Act because the changes discussed do not accord with my religious beliefs. However, civil marriage per se, divorce and so on do not accord with the same. Some of the economic policies of the current political parties fall short of Catholic social teaching. Yet I support religious tolerance as a governing ideal. I subscribe to the non-religious test model of democracy. I support freedom of religion. If one believes there must be civil marriage — and it is not something I would suggest as an ideal option for my heterosexual Catholic friends — it is unfair not to extend it to same-sex couples.
The non-theological argument many social conservatives and religious people try to run against same-sex civil marriage is really an argument against civil marriage per se, and beyond that against the French Revolution and its developments and novelties. It is also, by extension, an argument against marriage in any religion or tradition distinct from one’s own. In a nation with no established church or religion, and constitutional prohibitions on the same, such arguments are legally moot and, barring extraordinary social and religious change, mostly unhelpful in Australia.
I note that Catholics in the US, faced with a more hostile political environment, are talking about withdrawing from civil marriage. Australians are in a better position. We already have a pluralistic system. Catholics, Jews and, to some extent Muslims and so on can have intentional communities, with sacramental/religious weddings recognised by the Commonwealth, and others can have civil marriages. The state remains properly blind to the theological detail, provided no one is being coerced into marriage. There must be accommodation. We must live together.
Once religious people and social conservatives understand that civil marriage is not religious marriage, and once they are assured that it will not threaten religious freedom and religious marriages, I believe many more will reconsider, and some will no longer oppose, reforms to the Marriage Act to allow for same-sex civil marriage.
Some will never be able to vote for it, not and square such a vote with church teaching and good conscience, but there will be more peace and less angst about the issue. No one is upset when the Sikhs down the road get married and no one should get too excited if two same-sex-attracted citizens contract an Australian civil marriage.
Not least because civil marriage, while not ideal from a religious perspective, still confers on its participants many of the earthly benefits of a religious marriage. Religious people of all stripes are people of charity. Inasmuch as civil marriage promotes stability and commitment, and comes with tax, social, status and other advantages, it will appeal to religious people to extend these benefits.
Those who claim, as I once did, that most same-sex relationships are far from stable are really arguing for same-sex civil marriage. We have good reason to believe that, just like heterosexual blokes, same-sex-attracted Australian males will find marriage a binding, behaviour-changing institution.
There are those who claim that structural issues, matters relating to the bedrock social institutions of marriage and family, are too important to be reformed. After decades of disintegration and social decline, they argue, the time has come to hold politicians and political parties to account. The goal is to force the major parties to draw a line and formulate policies based on a respect for these institutions; to arrest the decline and fix the disintegration. Australians will be broadly sympathetic to this view.
Again, however, this supplies a conservative case for same-sex civil marriage. The social disintegration experienced in the West has been, in good part, a symptom of ever-fragmenting relationships. Those same-sex-attracted men and women who want to contract a civil marriage may represent an arrest in this decline, a return to commitment and stability.
Others claim that same-sex civil marriage will harm children, either directly or indirectly. I am, alongside most Australians, keen to hear how this may be the case. In the meantime, however, while the legal bias should always be in favour of the married, biological mother and father of the child, Australian adoption laws should not unfairly exclude same-sex married people from raising children, especially children whose biological parents cannot, or do not wish to, raise them together.
It is my hope that religious Australians and conservatives will follow a similar path to mine and that the angst and division of the marriage debate will recede into a properly Australian respect for personal conscience, privacy and social cohesion.
John Heard is an Australian lawyer. The views expressed in this article are entirely his own and do not constitute legal advice.
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