Gay Marriage And The Role Of The State

Liberalism necessarily implies secularism. In a secular polity, the state, consisting of parliament, the judiciary and the executive, does not concern itself with questions of purely social philosophy¹. These are for citizens to decide, through reasoned, public debate and if necessary, the ballot box.

One such issue is the nature and meaning of marriage. There have been calls for MPs to be “allowed” a conscience vote on whether the right to legally marry should be extended to same sex couples, effectively allowing a set of politicians to impose their personal views on the community. The logic of this is wrong.

In an open, liberal society, it is not the role of MPs to decide issues such as same sex marriage on behalf of the populace. Their role is to gauge the opinion of their constituency and to vote accordingly.

The role of a liberal state in social matters is threefold:

1.      To formalise, if necessary, the wishes of its citizens.

2.      To help decide on issues of logic, in cases where the wishes of its citizens are contradictory.

3.      To interpret and enforce contracts.

Which citizens are able to enter into which contracts is derivable from a society’s core principles, which are established by a process of debate and agreement between its citizens.

Firstly, citizens agree on who can decide on their society’s core principles and how that is to be done. For example, children may not be deemed capable of understanding the issues. Mentally incompetent adults may also be excluded. Next, the core principles are decided. These, together with the decision making process itself, will form one of the society’s fundamental documents: its constitution.

It is possible that an important question such as the nature and meaning of marriage would be seen as sufficiently fundamental to be included in a society’s constitution. If this were so, the role of the state would depend on the nature and drafting of the relevant section of the constitution.

If the constitution formally laid out the meaning of marriage, who could and couldn’t marry and in what circumstances, the judiciary would decide that a referendum is required to change the marriage law and parliament would facilitate this referendum if evidence of sufficient support for a change to the law was apparent.

However, if the constitution simply allowed parliament the right to make laws in respect of marriage, the role of the state is only to draft and enact the laws agreed upon by its citizens.

In Australia, the latter is the case. Section 51 (xxi) & (xxii) of our constitution allow federal parliament to make laws in respect of marriage and divorce. There is such a law: the federal Marriage Act (1961). Section 5 states that

"marriage" means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

It’s pretty clear. The paragraph was actually introduced as an amendment by the Howard government in 2004, with support from the ALP.

However, the situation is a little more complicated than it looks, because the states can also make marriage laws. So the states could just pass their own same sex marriage laws, right?

No. Not so simple. Section 109 of the Australian Constitution says that where federal and state laws are inconsistent, the federal law overrides the state law. BUT, as UNSW constitutional law professor, George Williams points out, the Howard government’s 2004 amendment possibly has an unintended consequence: the federal law limits the definition of marriage to a union of a man and a woman.

Perhaps then this federal law can only override state laws in respect of formal marriages between a man and a woman. The states could be free to make and recognise same sex unions by calling them something slightly different, but giving same sex couples equal rights and obligations as opposite sex couples.

Is this the path we really want to go down? An important social issue descending into a lawyers’ picnic, with “rights” obtained by casuistry and legal legerdemain, with the possibility they may be overturned by future parliaments?

What is needed is a clear, public debate as to whether same sex or even plural marriage follows as a corollary of two of a liberal society’s most fundamental principles: liberty and freedom of association. Or do a significant majority of us believe that allowing homosexuals (or transsexuals) to marry is so detrimental to other aspects of society that banning it must override liberty?

Some people do believe this.

There are stupid assertions, such as South Australian Senator Cory Bernardi saying that the devaluation of the institution by same sex marriage could eventually lead to people marrying animals.

The reason why it couldn’t is obvious: animals cannot give informed consent and therefore cannot enter into contracts. It is disappointing that no-one in government or the media picked this point straight away. Cory Bernardi is a moron. How hard could it possibly be to shoot down a moron’s argument? Apparently not that easy for our genius MPs.

Any RTBB readers will know that it is not homosexuality which leads to marrying animals, but the regrowing of teeth.

A common, though false counter argument is that allowing same sex marriage would give gay couples equal rights to adopt children or obtain custody in divorces, presumably endangering them in some way. But gay couples already have children. This has more or less openly been the case in Western society for at least two generations. Thus, there has been sufficient time for longitudinal studies. I am aware of no evidence suggesting children raised by gay parents have statistically worse outcomes on any measure of achievement or social function. Children of gay parents do not appear to have lower outcomes in educational attainment, earnings as adults, criminal behaviour, drug addiction, depression or suicide. Wikipedia has a good summary of meta-analyses of research in this area, with numerous citations.

There are meta-analyses which purport to contradict the assertions above, generally funded by right wing, Christian groups in the USA. It’s the American Academy of Pediatrics and the American Psychological Association who are probably biased though, being full of left wing doctors.

Additionally, suppose that same sex marriage continued to be banned. This would not prevent homosexuals from having children: it would only ensure a bias against them in custody battles and adoption applications. What of the children of gay men born to surrogates? Or the children of lesbians conceived via sperm donors?

Should a state which bans gay marriage force abortions? Removal of these children from their parents? Prosecution of the parents for surrogacy? Not a liberal one.

If not, then has the state abrogated its duty to a cohort of “at risk” children?

Apparently, the citizens of liberal democracies do not believe so, since no such laws exist. What then, is the problem with legally recognising two people’s assertion that their relationship has progressed beyond simple cohabitation, regardless of their gender?

Some opponents of same sex marriage proffer that gays marrying will devalue the institution of marriage. The opposite is true.

Marriage is a great deal more than simply living together and seeing how things go, or even living together for a long period of time (without producing children). It is a ceremony which represents more than an extra commitment: it is a public statement of a transition within one’s own life and within society.

What many homosexuals want is what marriage represents for heterosexual couples in a modern, liberal society: the power to say for yourselves when your relationship has progressed to a level of mutual commitment beyond that of sharing a dwelling and a bed. They don’t want that distinction made by a politician, judge or public servant.

Disallowing gay marriage will cause more young people to treat the institution as anachronistic and irrelevant. I suggest this will lead to lower rates of marriage in general, as younger generations view it as an artefact of their parents’ reactionary generation.

In the break-up of a relationship (hetero or homosexual), conflict often ensues as to the entitlements and duties of each partner. How then, will the seriousness of the relationship be determined if there are no children involved? By a judge? A committee of progressives? Who will set the criteria?

Better, I suggest, to allow those involved a say in the matter, through a formal statement as to the nature of their commitment.

There have been suggestions that by not recognising same sex marriage, Australia may run into some problems when gay couples married in foreign jurisdictions emigrate. New Zealand ratifying same sex marriage was posited as an example.  

That’s not the case. Part of the Marriage Amendment Act 2004 is the addition of S88EA to the federal Marriage Act, explicitly stating that foreign same sex unions are not recognised in Australia. It would require a highly activist High Court ruling to overturn Australia’s sovereignty (which doesn’t mean this could not occur).

I’ve provided a lot of argument here in favour of allowing same sex marriage. In fact, I believe plural marriage should also be legal.

It is fundamentally a question of liberty and the role of the state in an open, liberal society. Behaviour should be proscribed, not prescribed. If there is no conclusive evidence that certain actions are harmful to other members of society and that the harm could not be avoided by prudent action, those actions should not be proscribed. Any actions not proscribed are legal.

If the majority, or even a significant minority of citizens believe that same sex marriage is not harmful and there is no scientific evidence contradicting this belief, then it is the duty of elected politicians to formalise the views of their constituency through legislation in its favour.

I said even a significant minority because if there is no evidence of harm, the principles of liberty and equality should take precedence. The role of the state should then be simply to act as an interpreter and enforcer of contracts between those deemed capable of informed consent. In the case of marriage, that is adults who are not mentally impaired. It is not the role of a liberal state to make judgements on the morality or appropriateness of competent adults entering into a contract, regardless of their gender.

If certain, elected political groups represent a constituency which opposes same sex marriage, then their parliamentary representatives should vote against it. One can criticise the political position, but not the vote.

If a majority of citizens support the political principles underlying same sex marriage, the minority political groups can have their vote and lose.

What is important is that politicians ensure that the wishes of their constituencies are enacted. Their personal conscience is not relevant; they were not elected to serve it.

¹ By purely social philosophy, I mean principally non-economic matters, such as freedom of speech, enfranchisement, homosexuality, drug use, euthanasia and the nature of marriage. All of these issues can have economic effects, however their principal nature is clearly social.

A liberal state should concern itself with philosophical questions of a socioeconomic nature, such as the distribution of wealth, because the scientific method can produce evidence to guide policy. For example, it may be the case that some wealth distributions or taxation systems are demonstrably likely to decrease overall wealth. In this event, they should be rejected as policy and the public educated as to why.