A common good argument for legalising same sex marriage

17 Comments

 

The opposition of the churches to the legalisation of same sex marriage is well known. That opposition seems to me, as a Catholic lawyer, to suffer from a failure to make a fundamental distinction.

Wedding bandsWhat is proposed is an amendment of the civil law, dealing with the legal rights and duties of Australian citizens. It is not an amendment of the rights of a church to determine to whom it will administer the sacrament of matrimony, or the moral, as distinct from the legal, consequences of the receipt of that sacrament. Parliament has no power to make laws with respect to that subject matter.

The other distinction that seems to be forgotten is that it is not the function of the civil law to enforce morality. The responsibility of Parliament is to enact laws that are for the common good.

Sometimes the two objectives are congruent, as when both morality and the civil law prohibit murder and theft. Sometimes they are not, as when the civil law makes no prohibition of adultery, which is held to be immoral by the churches and which can cause great suffering. It is perceived to be not for the common good to attempt to control the commission of adultery by legislation.

Decisions about what in fact is for the common good are primarily political, not legal or moral. It is for the members of Parliament to make them. Conducting a plebiscite on this issue will have no legal effect. Even if such a plebiscite were successful, the politicians will still have to make up their own minds. A plebiscite will never relieve them of their responsibility.

In my opinion it would be for the common good to enact legislation for same sex marriages. My main concern is not about who may enter into the relationship defined by the civil law as marriage. It is more about the consequences that follow if the relationship breaks down.

When a traditional marriage breaks down, as it does often enough, there is a substantial body of law that has been developed to deal with the consequences, in the Family Law Act and the decisions of judges administering it. Specialist courts have been created to administer that law and resolve disputes.

A substantial number of people in the community have already entered into homosexual relationships, monogamous and intended to be permanent, or will do so. Some of them will break down, as do heterosexual relationships. Disputes will arise about matters such as property, maintenance, and custody of and access to children.

 

"It would be for the common good if there were one set of laws for all Australians who suffer a relationship breakdown, and one set of specialist courts to deal with disputes arising from such breakdowns."

 

Common law principles have been found to be inadequate for settling such disputes fairly and economically. States and territories have enacted legislation to include them within the provisions of various de facto relationships acts. Some states have referred to the Commonwealth power to enact amendments to the Family Law Act enabling the Family Court to deal with property disputes, but not all the states and territories have referred that power, and a similar solution has not been found so far as children are concerned.

There is no reason why such disputes arising from a homosexual relationship should be dealt with differently from those arising from a heterosexual one, or differently in one state from those in another. It would be for the common good if there were one set of laws for all Australians who suffer a relationship breakdown, and one set of specialist courts to deal with disputes arising from such breakdowns, especially where children are concerned.

The problems could be solved by amending the Marriage Act 1961 and the Family Law Act 1975, making their provisions applicable to both homosexual marriages and heterosexual ones. Those amendments might well not be simple, especially where children are concerned. A plebiscite will not assist in the drafting of them.

 


Alan HoganAlan Hogan is a retired Catholic lawyer based in Sydney. During his career he has been a barrister, solicitor, law teacher, author and five different kinds of judicial officer. In retirement he obtained a Masters degree in Biblical Studies from the Catholic institute of Sydney.

Topic tags: Alan Hogan, same sex marriage, marriage equality, plebiscite

 

 

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Existing comments

Thanks Alan for reminding us that this is all about civil marriage and not Holy Matrimony, that families based around homosexual partnerships are already a fact of life, and that there needs to be a single common structure and environment for dealing with breakdowns and disputes in all families regardless of their structure. Abbott's plebiscite was never intended to resolve anything, rather it was intended to defer marriage law reform, preferably indefinitely.
Ginger Meggs | 30 August 2016


This is an excellent presentation of the question whether or nor same-sex marriage should be integrated into the current legislation and regulations for marriage. The clear separation of legal from moral considerations is necessary in our pluralist nation. And given that several members of parliament have indicated that they will not be bound by any plebiscite result, a plebiscite presents no real advantage toward resolving the question.
Ian Fraser | 30 August 2016


Not all relationships fall under the jurisdiction of the Marriage Act or the Family Law Act. Some friendships and family relationships breakdown and do not need to be dealt with via the courts. "Gay marriage" is an attempt to change the status of homosexual friendship to be the same as marriage. Children need to see that marriage and family is about mum, dad and the kids. The so-called progressives want us to believe that a man can have many wives, a person can marry an object (1 woman is apparently 'married' to the Eiffel Tower), an adult can marry their own child, or, a person can marry themselves. It would be better not to artificially raise the status of fake marriage relationships. It is better to take action to strengthen the Marriage Act to ensure the real family unit of mum, dad and the kids remains.
Peter Seager | 30 August 2016


A contributor has written, "The clear separation of legal from moral considerations is necessary in our pluralist nation." A law is passed because a parliamentary majority thought it 'right' to do so. Isn't, then, pluralism the constant challenge of deciding which moral viewpoints can be accommodated within the framework of a nation? If the avoidance of economic dislocation is a virtue and there exists overseas (or even here) a buying public who could be induced to think it a delicacy, should the breeders of New South Wales take to raising greyhounds, like the similarly unfleshy quail, for their meat? To allow the institutionalising of same sex marriage is to declare that it bears virtue, just as, within Catholic teaching, at least, there is no, "I am personally opposed to abortion but ...."
Roy Chen Yee | 30 August 2016


Alan many thanks for the clarity and logic in your argument.
Maurice | 31 August 2016


MrMeggs sir your asserted gay families are a fact of life,needs nuancing: The current state of international law on same-sex marriage reflects the current state of domestic laws in UN Member States: domestic laws on marriage show that the vast majority of the world views marriage as a relationship between a man and a woman. Currently, only twenty-three countries allow same-sex marriage. Therefore, of the 193 Member States that make up the UN, almost 90 percent have refused to redefine marriage.
Father John George | 31 August 2016


Let's call it what it is- civil sexual union - not marriage. Words are indeed more powerful than the sword and perhaps one of the greatest instruments of deceit and moral downfall, capable of deluding even their originators. An eminent High Court judge once told me that justice was often thwarted by words alone, the domain of the successful lawyer.
john frawley | 31 August 2016


Hi there Fr JG. I don't think there is any actual 'international law' about same sex marriage, but I understand what you mean. But so what if a majority of countries do not legitimise same sex marriage? Many laws vary from country to country - you're surely not advocating some world wide legal system imposed on all, are you? There have been times and places where inter-racial and/or inter-faith and/or inter-caste/class marriage was frowned upon, not recognised, and even criminalised by the state. Thankfully we've moved beyond that stage, at least in most Western liberal democracies, though not in some of the majority of countries that you cite. Fr JG they are a fact of life, they exist, people live in them, children are loved and nurtured in them, to all intents and purposes they are indistinguishable from any other family. And as for the woman being married to the Eiffel Tower, etc., no one is seiously suggesting any of those options, are they? (By the way, 'Mr Meggs' is my Dad, why don't you call me Ginger?)
Ginger Meggs | 31 August 2016


Yes, Roy Chen Yee, one aspect of pluralism is "the ... challenge of deciding which moral viewpoints can be accommodated within the framework of a nation." However pluralism is much more than that. Primarily, it is the attitude in society which acknowledges that the moral values held within the nation are not necessarily shared by all citizens. Speaking in cliché, it is very much "Live and let live." Clearly, just how widely held is this attitude in society is a matter for debate. "To allow the institutionalising of same sex marriage is to declare that it bears virtue" Yes, it does ... virtue in that it recognises the love shared by the couples involved and ensures the same legal provisions in the event of death of either partner, or the breakdown of the marriage, as are ensured for hetero couples. And I'm sure you understand why your reference to breeding greyhounds for meat is a red herring in this discussion.
Ian Fraser | 31 August 2016


Ginger Meggs is right: "Abbott's plebiscite was never intended to resolve anything, rather it was intended to defer marriage law reform, preferably indefinitely." But Abbott achieved something more - he managed to 'frame' the issue with his plebiscite move. We can declare war and send off the troops to fight without a plebiscite, we could reform abortion laws and abolish capital punishment without plebiscites, but heavens, giving a gay couple a marriage certificate has to require forcing everyone to vote on it, because it must be so much more vital and dicey than those life and death issues that governments and parliaments routinely deal with. So any plebiscite starts off with that bias: accepting gay people is very risky and needs a huge, expensive public trial before Parliament could consider the issue.
Russell | 31 August 2016


'Those amendments might well not be simple, especially where children are concerned'. I'm in favour of SSM, which I regard as a civil right. I'm just afraid that there'll be no opportunity for open discussion about the implications for 'family formation' i.e. children. Alan may well be right in saying a plebiscite won't help - but when will we have the opportunity to converse about children? I've known too many men affected by 'absent father' syndrome to believe two mothers always equal a mother and a father. (This is a generalization - my closest friend and her female partner are great parents).
Joan Seymour | 31 August 2016


Ian Fraser, there's no such thing as live and let live. That's why the greyhound scenario is apt. Pluralism is not more than deciding which moral viewpoints can be accommodated within the framework of a nation. It is that. When this change of which you approve - that marriage is not to be restricted to a man and a woman - becomes law, will you expect courts to interpret the changed law to prevent a marriage between a gay man and two other gay men? Is banning state-certified polygamy live and let live?
Roy Chen Yee | 01 September 2016


'When this change of which you approve - that marriage is not to be restricted to a man and a woman - becomes law, will you expect courts to interpret the changed law to prevent a marriage between a gay man and two other gay men? Is banning state-certified polygamy live and let live?' That question, Roy, is an example of the mischievous and irrelevant noise that will be introduced into any so-called 'debate' that will precede a plebiscite. You know full well that the law will be framed in such a way that no court will be able to interpret the law in favour of bigamy or polygamy or anything other than a monogamous marriage between two people. To suggest otherwise is mischievous at best.
Ginger Meggs | 05 September 2016


Ginger sir aside from Natural Law and Divine Revealed Law, UN International law can impact on attempted gay marriage Thus the UNO ICCPR Article 23(2) provides that "[t]he right of men and women of marriageable age to marry and to found a family shall be recognized." Taking into account the historical context of the ICCPR and its official negotiation records, this right is generally accepted as being limited in scope to opposite-sex marriage. This was confirmed in the Joslin v. New Zealand [PDF] communication of 2002. There, the committee dismissed arguments that Article 26 required New Zealand to provide same-sex marriage. It held that Article 26 must be read in light of the guarantee of heterosexual marriage in Article 23(2)
Father John George | 08 September 2016


Ginger Meggs, let’s change the quote to “'When this change of which you approve - that marriage is not to be restricted to a man and a woman - becomes law, will you expect courts to interpret the changed law to prevent a marriage between a heterosexual man and more than one heterosexual women? Is banning state-certified polygamy live and let live?” Same-sexers are choosing to change a very old tradition that marriage is between one man and one woman simply because some men and some women think differently. What’s so sacrosanct, then, about the parallel tradition (there are two traditions but they look like one because they usually run together) that marriage is between one person and one person? What makes you so conservative about the second tradition, conservative but differently conservative to conservative Muslims in Arabia and traditional Mormons in the back blocks of Utah? Why are you oppressing them? Are there absolutely no women in the world who want to live in a harem? Are there absolutely no polyandric men in the world who want to live in a rich woman’s harem? The belief in adult liberty that undermines one tradition will undermine the logic for preserving the other.
Roy Chen Yee | 08 September 2016


It’s an old tactic Roy but it continues to work and needs to be called out. Cloud the debate with irrelevancy and hope to confuse enough people not to support that which you oppose. A year ago in the discussion of “Four Preconditions for Marriage Equality” (itself a notion that denies equality) HH in trying to cloud the issue called me a bigot for not supporting polygamy. HH was wrong incidentally; I have never given an opinion for or against polygamy, only that polygamy is irrelevant to this discussion of Marriage Equality. The issue is about whether two freely consenting adults can marry and, if not why not. That is all it is. It is not about holy matrimony as churches will have an exemption and will be able to continue to do their own thing in the name of God. It is not about raising children as gay and lesbian couples can already have families (but wouldn’t it be nice for the kids if their parents were married?). It is not about bestiality or marriage to an inanimate object. It is just about two adults making a loving commitment to each other. What is so wrong with that? How does it even affect you any more than a heterosexual marriage? If you want to push the polygamy barrow, then that’s your choice. Only, please don’t do it in the context of the Marriage Equality discussion.
Brett | 09 September 2016


The Principal Legal Officer at the Family Law Branch confirmed that a sexual union (sexual intercourse which consummates a genuine Christian marriage) hasn't been the basis of a civil marriage in Australia since the introduction to the no-fault divorce which also made civil marriage no longer a life-long contract. Therefore, a civil marriage can be for any type of genuine living arrangement/ relationship that the government decides to give the right to purchase a legal marriage certificate from the state to claim the legal status of marriage. This is the equivalent to an owner's purchase of a cat and dog registration certificate from the local council and celebrated in a wedding ceremony. The history of marriages in NSW were only recorded in the Church of England and other denominations from 1788-1856. The NSW Marriage Registry was only established in 1857 to protect and support the religious practice of marriages by keeping accurate records for the illegitimacy of children and inheritance. George Washington, my German forefathers, married couples in NSW 1788-1856, and myself have never purchased a legal state marriage certificate. Marriage is a God given right like being a parent and doesn't need approval from the state.
Janine | 21 December 2016


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