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The US Supreme Court's gay marriage overreach


US Supreme Court Last Friday, the US Supreme Court handed down its decision in Obergefell v Hodges, deciding by the predictably narrowest majority of 5-4 that same-sex couples had a constitutional right to marry, and that the right is protected under both the due process and equal protection clauses.

Eleven of the 50 states, as well as the District of Columbia, had already legislated to recognise the right of same-sex couples to marry. Justice Scalia in dissent observed, 'Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views.'

There is much about the judicial reasoning in the case that would raise eyebrows among lawyers not used to the judicial activism of the liberal majority of the US Supreme Court which has long viewed the due process and equal protection clauses as a vehicle for legislating their preferred view on contested political and social issues. Writing for the five liberal judges, Justice Kennedy used poetic, but not very judicial, language when he commenced his judgment with this stirring call to judicial arms: 'The Constitution promises liberty to all within its reach.’

This was altogether too much for Justice Scalia in dissent. He wrote, 'The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.'

With pastoral sensitivity for same-sex marriage advocates and not wanting to rain on their parade, Chief Justice Roberts, also in dissent, retained a clear vision of what ought be the court’s limited role, observing, 'But this court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.’

Another of the four dissenters, Justice Alito highlighted the perils of a broad-brush judicial determination constitutionalising the right of same-sex marriage, short-circuiting the more nuanced debates which could go on in parliaments. He rightly highlighted that the decision will 'be used to vilify Americans who are unwilling to assent to the new orthodoxy,’ pointing out that the majority 'compares traditional marriage laws to laws that denied equal treatment for African-Americans and women’.

In short, it is regrettable that the Supreme Court took it upon itself to discover a definitive answer in the silent Constitution on this contested social question, because there can be no doubt that the democratic process was taking US society in only one direction on the issue.

The court, by intervening and deciding the issue unilaterally, has reduced the prospects of community acceptance and community compromise about the freedom of religious practice of those who cannot embrace same-sex marriage for religious reasons. Alito is right when he assumes 'that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.'

There will be years of litigation now about the right of religious bodies to restrict services only to couples who marry in accordance with the institution's religious creed. It will all be nasty and hard fought.

Same-sex marriage is or soon will be a legal reality in all well-educated, developed societies in the foreseeable future. It is imperative that the Church continue to advocate the ideal of sacramental marriage for a man and a woman who are believers wanting to commit themselves to each other before God open to the bearing and nurturing of each other’s children according to the law of Christ and His Church. It is appropriate that the Church continues to espouse the ideal that children be nurtured in a family unit by their known biological mother and known biological father, while extending pastoral solicitude to all families and to all children, including the hundreds of thousands who are already being raised by same-sex couples.

Our bishops need to accept that the contours of civil marriage have not been identical with the attributes of sacramental marriage for a very long time. Perhaps part the episcopal fear is that even those married in Church have little understanding of the difference between the two institutions, and many of the clergy are ill-equipped to explain the difference.

Whatever one’s misgivings about Justice Kennedy’s judicial technique, there can be no faulting his pastoral sensitivity to those same-sex couples who have felt alienated and marginalised for too long. Our bishops would do well to replicate the pastoral tone at the conclusion of his majority judgment:

'No union is more profound than marriage, for it embod­ies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people be­come something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it so deeply that they seek to find its fulfilment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilisation’s oldest institutions.'

As Pope Francis said in that mid-flight media conference: ‘Who am I to judge?’

Frank BrennanFrank Brennan SJ, professor of law at Australian Catholic University, was recently Gasson professor at the Boston College Law School. A longer version of this article is available in Global Pulse Magazine.

US Supreme Court image by Shutterstock.

Topic tags: Frank Brennan, gay marriage, marriage equality, US Supreme Court



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Existing comments

Justice Scalia for President, anyone? Reality and the ability to express it truthfully in language is one of the casualties of this decision. What social conviction and respect will there be for such a confected 'equality'?

John Kelly | 01 July 2015  

Wrong, wrong, wrong. Will the hatefulness never stop? People living outside of the Church's bizarre concept of the 'law of Christ' re sexuality, don't need the Church's 'solicitude', they don't want anything from or to do with the Church. They've had the judgment and hate for a very long time: 'disordered' was the least of it. Royal Commissions and inquiries seem to be pointing to where the real disorder lies. As for being labelled a bigot, well, if the cap fits ... Frank Brennan should be able to recall when Catholics, and Jews, Asians, women, homosexuals - lots of people could be spoken of in the hateful way the Church has always spoken of gay people. But we've moved on, and people who speak like that these days are properly called bigots. Should anyone like to read a less hateful and more thoughtful view of the decision, just go here: http://theconversation.com/the-surprises-in-the-supreme-courts-same-sex-marriage-decision-43684

Russell | 02 July 2015  

Two dissenting articles: http://www.smh.com.au/comment/comment-eric-abetz--on-gay-marriage-20150701-gi26gi.html http://australianmarriage.org/the-insanity-of-the-us-supreme-court/

John Wotherspoon | 02 July 2015  

Russell, Frank Brennan's response here to the US High Court decision "hateful"? On the contrary:few do as much as Frank to ensure that homosexuals' voices are given a fair hearing in the Church and in the public arena..

John Kelly | 02 July 2015  

Thank you Frank for you well thought out and reasoned comments.

Fr Charles | 02 July 2015  

I'll be Glad if you'll be Frank. It's time......

Peter Goers | 02 July 2015  

The word 'Marriage' seems to have a very elastic meaning. Basically it is an agreeable personal union between two people, and as such, existed well before either Church or State existed, though later both these organisations acquired views and enacted regulations regarding these unions, according to their concerns. But marriage remains this agreeable union. The partners marry each other. Church or State are merely official observers or witnesses to ensure that their particular concerns are abided by. A true marriage can take place without any such witnesses if, in remote areas, they are unavailable. Church and State need to separate their views and concerns, despite both wanting to use the same word to indicate such unions, thus causing confusion among the public.

Robert Liddy | 02 July 2015  

The really inane thing about all of this is that the law should have anything to do with the way any pairing of persons chooses to achieve sexual satisfaction if the means of so doing are mutually agreed. The law has spent the last 20 years buggering up Western society, establishing so-called human rights. One of the major functions of a system of law is to order society to the common good. Such requires responsibility and it's about time the law began defining not only societal "rights" but also the responsibilities that must accompany them.

john frawley | 02 July 2015  

Nuanced debate? What nuanced debate is the US missing out on as a result of this new decision? Australia has the chance to reveal this mysterious nuance right now, but what do we get?.. Eric Abetz and Cory Bernardi and talk of polyamory, bestiality and incest. If Tony Abbott is so confident of his position, based on Catholic teaching, why is he so coy about it and avoiding having to take a stance at all costs? And the issue of children/rights of children is a separate debate, just as it should be in the case of a child living in an abusive domestic situation.

AURELIUS | 02 July 2015  

Incisive as always Fr Frank Those of us pro same gender marriage have no wish to demean those who cherish the institution of heterosexual marriage We just want to share in your celebration of this great institution To continue the status quo is to disenfranchise a very significant number of our population from the joys of state endorsed union As with so many topics,our Church stil;l has a long way to go to deal with this topic in a spirit of generosity and inclusiveness Peter Hoban

Peter Hoban | 02 July 2015  

Frank you say: “It is imperative that the Church continue to advocate the ideal of sacramental marriage for a man and a woman who are believers wanting to commit themselves to each other before God open to the bearing and nurturing of each other’s children according to the law of Christ and His Church.” By changing the words “man and woman” to “a couple” it becomes entirely inclusive. Many same sex couples are bearing each other’s children, though not the children of both partners, and are committed to the nurture of their children. Modern blended families provide love to the children of both parties. And the rearing and nurturing of adopted children by childless couples was never any less lavish in the past than the care for natural biological children. Marriage has always been about more than the welfare of only the biological children of the sexual partners in the union. I take it that you support the civil marriage but baulk at the requirement that The Church must recognize the civil arrangement and that no priest should be forced to officiate at a same sex union. It may be that time, theology, logic and love may erode your hopes.

Mike Bowden | 02 July 2015  

When I was young (I'm nearly 76), marriage was something not entered into lightly. It really did mean, I think for the majority, 'til death do us part'. The entirely different culture we now live in does not so easily embrace the notion that marriage will last a lifetime. Like all changes there are both good and bad consequences. I was most fortunate to have been in a loving married relationship for over 50 years until my husband died and I still miss him nearly 5 years later. However, remaining in a relationship of domestic violence, or even in a relationship where love has not endured seems fruitless to me. I can't honestly say I completely understand gay relationships, having had no feelings like they have but I readily accept their sincerity and have gay friends whom I admire and respect and who are excellent parents. To be honest, what concerns me with the gay revolution would seem extremely trivial to most. I come from an era when 'gay' had a specific place in the English language and it saddens me that it has lost its past meaning. The other thing is the gays' appropriation of the rainbow as their symbol. The rainbow is a delightful phenomenon of nature and should belong to everyone, especially children and not be confined to displaying allegiance to, or celebration of, gay rights.

Anna | 02 July 2015  

Anna, I totally agree with you about the appropriation of the rainbow and the rainbow flag as a gay symbol. It's meant to signify "diversity" - which means everyone - including heterosexuals. Sadly when I see they rainbow flag now, I see it as a sign of promiscuity and the promotion of corporate gay culture which discourages diversity and definitely discourages any religious affiliation.

AURELIUS | 02 July 2015  

The history of marriage is often forgotten in discussion about "same sex marriage". In the ancient world generally marriage was seen as a contract between two families. The fact of a couple living together with children behind high security walls with a very possessive attitude to the rearing children (a nuclear family) can not be seen as ideal "Christian marriage". One of the great changes in society at large recent years is an abhorrence of sexual abuse and violence, a new importance shown for "intimacy and affection in close human relationships and the importance of the extended family and networking.

john ozanne | 02 July 2015  

Justice Alito is concerned that the court majority "compares traditional marriage laws to laws that denied equal treatment for African-Americans and women." Indeed, and that is the point! Traditional civil marriage laws discriminate against gays just as African-Americans and women have been and are discriminated against. Justice Ailto unfortunately shows his true colours, seeing gays as other than people with God-given differences deserving of the equal love Christ demanded of all for all.

Peter Johnstone | 02 July 2015  

Fair comment, and Fr Brennan is surely correct in saying that same-sex marriage will soon become a reality in all developed societies. The herd-mentality will take care of that. The psychiatrist Leo Alexander observed at Nuremberg that most Christians became Nazis out of “fear of ostracism by the group.” But same-sex marriage was never the goal of the homosexual lobby. The late Christopher Pearson had been a homosexual activist until he discovered that those pushing the agenda had no genuine concern for the welfare of homosexuals. The agenda was political, and the perfect vehicle was the Trojan Horse of “marriage equality” dressed up in the Beatitudes. Once same-sex marriage was introduced in Massachusetts, California and Ontario, education policies soon mandated teaching of homosexuality to children. The Australian Education Union too is ready, having adopted a “gender identity” education policy in 2006. There are already calls to strip religious institutions of tax-exempt status if they don’t fall in line. Those who resist Caesar will be crucified. Only a “few” ever find the narrow gate. Only a “few” Dietrich Bonhoeffers and Sophie Scholls resisted Hitler. Christopher Pearson who became a Catholic and a celibate daily mass-goer, was one of the “few”.

Ross Howard | 03 July 2015  

John Frawley's choice of words is very amusing ...

Kerry Bergin | 03 July 2015  

"same-sex marriage will soon become a reality in all developed societies". More like societies regressed to Sodom and Gomorrah.
“We learn from history that we do not learn from history.”
? Georg Wilhelm Friedrich Hegel

Father John George | 03 July 2015  

I agree strongly with the important point you make about the role of democratic deliberation and decision making in a matter of such great social significance. Supporter of gay marriage have focused too much on victory in the courts and have neglected the real concerns of conservatives. Polls do not provide adequate guidance.

John Langan, SJ | 03 July 2015  

men that USAAcitizerns can vote over the age of21
you cant be held as a slave if you ow a debt to another person\
the 14th ad,emment was over steched on gay rights

Jerry | 03 July 2015  

Frank, nothing but respect for you! And I understand from an Australian point of view our courts can seem problematically activist.

But just for clarification, within the US context few would say we currently have a "judicially activist liberal majority" Supreme Court. Kennedy is the swing vote, and half the time he swings the other way, allowing for decisions like Citizens United that have enabled corporations to dump millions into campaigns and causes under the auspices of free speech.

Also, according to Politico 63% of Americans supported the Court's decision. When you dig down into younger demographics, that percentage is undoubtedly much higher.

It's definitely true there are and will be conflicts with a few states. But overall I think the decision is more controversial for the Church than it will be for the country.

Wally Resterman | 03 July 2015  

Thank you Frank Brennan for your interesting piece. “Love first. Everything else later. In fact, everything else is meaningless without love.” So said the much loved American Jesuit Jim Martin who then received thousands of spiteful tweets and messages from American Catholics. As a 'fringe" Catholic who has much respect for other traditions who provide much expertise on meditation and inner practise I have always admired the buddhist notion of 'Mudita",altruistic joy in the happiness of others. I think many shared this joy last weekend when news of the U.S. decision came through. I would not dare attempt a theological argument with the likes of you Fr. Brennan but I have no problem seeing the values of Jesus in ensuring equality is extended to all on all issues. I found the Australian Bishops letter embarrassing for clearly they could nor see their own overt innate prejudice, a clerical blind-spot. Ireland gave me great heart, a largely Catholic nation they voted for this equality of law. The thing about coming from big Catholic families is that everyone is related to or knows someone effected by discrimination. I can't imagine a Catholic mother wanting anything less for her child that is not of heterosexual orientation than those that are. A civil matter should not terrify the church so. I think it is inevitable and to be embraced. I would not want the next generation to live with such alienation and misunderstanding if not downright abuse. I cannot believe that with Universities of our own and their amazing research into the latest in social science, science health and other disciplines that we stick with sixty year moral theology as the guide. I hope the legal change happens soon and softens the hearts of those wh feel so threatened by the change.

Christina Coombe | 03 July 2015  

Well, it appears the issue of same sex marriage is still a polarising issue, here as well as elsewhere. A variety of interested parties have stated their views. I wonder, in Australia, if the politicians let it go to a referendum, how the vote would go? The result would not, I think, be a foregone conclusion.

Edward Fido | 03 July 2015  

Marriage isn't defined by governments, it's defined by Nature, in the anatomical complementarity of men with women. A government has no more right or sense defining the union of two men or two women as marriage than it has to define me as a horse.

Gavan | 03 July 2015  

Ross, you concede too much: same-sex 'marriage' is a symptom of cultural decline rather than a badge of "developed societies." Sophistries stultify, especially when they become law.

John Kelly | 03 July 2015  

The law is a disgrace. I wonder what Jefferson or Martin Luther King would think of it.

john frawley | 04 July 2015  

I see no good will in this debate at the moment, especially from the Catholic/Christian perspective. I have made a decision to disengage from this toxic and hateful stalemate disregards the feelings and reality of many gay Catholics trying to walk a narrow tightrope, Comments from John Kelly and John Frawley convince me that some people are not arguing against same sex marriage, they are actually still arguing against the decriminalisation of homosexual acts - buggery - which was restricted to men, no mention of lesbians. When I watched the ABC iview upload of "Monday Conference" filmed in Mt Isa in 1976, discussing homosexuality (a public forum similar to Q&A) I was expecting the sentiments and attitudes of the audience to be very different to those of today. But, apart from 2 or 3 very outdated views, most of the questions seemed to be refreshingly open and honest (although naive) on a level that we don't see today. In today's political/religious/moral environment, people have already bunkered down into their positions and no longer care about the consequences for anyone different to themselves, or even care to hear another's views in a considered and empathetic way. What for Kelly and Frawley is a disgrace and symptom of social decline, is a wind under the wings of people who have live as second classed citizens for far too long.

AURELIUS | 04 July 2015  

Jefferson was, of course, a slave owner.

Russell | 04 July 2015  

Aurelius, please address what I actually say. My opposition to this law is on the basis of its distortion of the definition of marriage, an institution which I regard as highly relevant and far from "outdated."

John Kelly | 04 July 2015  

"My opposition to this law is on the basis of its distortion of the definition of marriage". You could hardly call this change a distortion when it conforms to the majority belief of what marriage is. If you're referring to your minority religious idea of marriage, perhaps you would also like to argue against divorce as an unacceptable distortion of marriage in our legal system? Good luck with that.

Russell | 05 July 2015  

Russell, saying two things that are different are effectively the same and therefore of equal status, and having this proposition legally ratified is nonsense, whether determined by a majority or not.

John Kelly | 05 July 2015  

"Marriage equality" = childhood inequality.

As the brief of the American College of Pediatricians et al. to Obergefell concluded: "Despite intense political bias to suppress the findings set forth herein, evidence from large, nationally-representative studies has demonstrated that children raised by same-sex parents, *particularly those who identify as married*, do not fare as well as those with opposite-sex parents, and many experience substantial harm."

Precautionary principle, anyone?

HH | 05 July 2015  

Quoting a conservative political organisation pretending to be an impartial medical organisation doesn't win you any points HH. The real professional organisation, the American Academy of Pediatrics, supports the decision. The American Medical Association, American Psychological Association, and a host of others all support the decision. Their brief "advised the Supreme Court that scientific evidence strongly supports the conclusion that homosexuality is a normal expression of human sexuality; that gay men and lesbians form stable, committed relationships that are equivalent to heterosexual relationships in essential respects; that same-sex couples are no less fit than heterosexual parents to raise children, and their children are no less psychologically healthy and well-adjusted; and that denying same-sex couples access to marriage is both an instance of institutional stigma and a contributor to the negative treatment of lesbian, gay and bisexual people. In short, the claim that allowing same-sex couples to marry undermines the institution of marriage and harms children is inconsistent with the scientific evidence"

Russell | 05 July 2015  

John, you are comparing the legal definition of marriage with your religious concept of marriage. And I'm inviting you, with your Catholic concept of marriage, to condemn the Family Law Act for allowing divorce. Is not divorce a 'distortion' of marriage according to your beliefs?

Russell | 05 July 2015  

Senator Penny Wong made the valid point that same sex couples can already have children. All the opponents of marriage equality are doing is denying the children of same sex couples the right/privilege/opportunity to have married parents. That discrimination doesn't really seem to be in the best interests of the child.

Brett | 05 July 2015  

Impartial, Russell? "A former president of the American Psychological Association (APA), who also introduced the motion to declassify homosexuality as a mental illness in 1975, says that the APA has been taken over by “ultraliberals” beholden to the “gay rights movement,” who refuse to allow an open debate on reparative therapy for homosexuality."... "In an interview with representatives of the National Association for Research and Therapy of Homosexuality (NARTH) in late April, Cummings said that the organization’s problems began with the rejection of the Leona Tyler Principle, which required that all public positions of the APA be supported by scientific evidence." In a separate interview on the same day, Cummings said that the movement for “diversity” in the APA, which he endorsed, had resulted in a lack of diversity regarding heterosexuals. “If I had to choose now, I would see a need to form an organization that would recruit straight white males, which are underrepresented today in the APA,” he said. Cummings says that he personally is not in opposition to the homosexual movement, including gay “marriage,” pointing out that he was the author of the motion to strike homosexuality from the APA’s list of mental illnesses. However, he is distressed at the loss of scientific objectivity at the organization. “The first time it came up, and I was a member of [the] Council, this would have been, oh, 1975, because I remember that that’s when I made the resolution,” Cummings said. “I made the resolution that being gay was not a mental illness, that it was characterological. And it passed the Council of Representatives. And that was the first issue that came up. I also said with that, that the APA, if it passes this resolution, will also vote to continue research that demonstrates whatever the research demonstrates. Unbiased, open research. It was never done.”

HH | 05 July 2015  

Russell, heterosexual definition of marriage is not a peculiarly religious concept;

John Kelly | 05 July 2015  

John, you seem to be avoiding the question. Do you approve of legal divorce?

Russell | 05 July 2015  

Divorce is not inherent in the definition of marriage, Russell.

John Kelly | 06 July 2015  

Russell it is patently untrue, "that gay men and lesbians form stable, committed relationships that are equivalent to heterosexual relationships in essential respects;" A study on short-term same-sex registered partnerships in Norway and Sweden found that divorce rates were 50-167% higher for same-sex couples than opposite-sex marriages, and that unions of lesbians are considerably less stable.

Father John George | 06 July 2015  

“We know same-sex couples have children now. All that debate is, is saying their parents can't be married.” (Senator Penny Wong, July 5 2015)

Poor Senator Wong! Someone needs to tap her on the shoulder with the news that the stuff about babies and the stork she heard as a child isn’t true. What was that Fr Frank said above about “well educated” societies and gay marriage? Dear me. Let the remedial lesson begin: Senator, your partner Sophie had a child. She had it by a man. She didn’t have it by you. One of you in that triangle was surplus to requirements. Let’s put it another way: were you and your partner Sophie to be marooned on a desert island for the next forty years, then, short of a visit from the Angel Gabriel and an ensuing miracle, there would be no “having” of a child, try as you might. No, not even if one of you “chose to identify as a man” and cobbled together some reassignment surgery. You can’t have a child with your same sex partner because you can’t have real sex with her. No same sex couples can perform real sex - the act of marital intercourse. They can get sexual pleasure and comfort from each other with genital actions – sure. But if that’s all marital intercourse is, then, to put it crudely, a man can marry himself. And in that sense, I’m sorry, your argument proves way too much. You can’t do anything about this, except pretend it’s otherwise. But Senator, what you and your partner *can* do is the right thing, which I’m sure is also a very difficult thing for you: arrange for the child you mistakenly think you “had” to be raised by its genuine mother and father, as all children should entitled to be, and all biological parents are seriously obligated to carry out as mandated by the natural law written on the human heart. Another right thing you can do for children as a Senator is pass legislation banning all donor insemination. Remedial class dismissed.

HH | 06 July 2015  

Who/What do you believe? The single person associated with a conservative thinktank, or the study from Norway ... or the overwhelming majority of mainstream experts in the area? I would suggest that people are just looking for reinforcement of their beliefs when they go with the exception, rather than the mainstream evidence.

Russell | 06 July 2015  

HH, please read Penny Wong's words again. She didn't say same-sex couples conceived children together, she said they have them - as they do. You would prefer that those children be brought up by couples who aren't legally married, rather than by couples who are legally married. Most people would see this as anti-marriage and anti what is the best for the children concerned - see what a strange position you have gotten yourself into.

Russell | 06 July 2015  

The only part of your message to Senator Wong I agree with Double H is you did put it crudely. We are not talking biology here my friend, we are talking relationships. The discussion is about a same sex couple having the same choices in their relationship as a heterosexual couple. You are saying any couple that adopts a child cannot be real parents. Your logic would apply to every single parent family as well. Quality of parenting depends on the quality of the parents, not the gender of the parents. Deny the children of same sex parents the opportunity to have married parents if you want, but I know who should really be in the remedial class and it ain’t the Senator.

Brett | 07 July 2015  

Ignore biology, Brett? How convenient: by airy diktat we now pronounce gender differentiation irrelevant, with Olympian disregard for nature, not to mention millennia of human experience (not only Christian, at that).

John Kelly | 07 July 2015  

It is frustrating how few people in the public square seem to be able to grasp the wisdom so well expressed in this article - regardless of what you think of the merits of same sex marriage, this decision was, first, a bad one in law (how is same sex marriage possibly protected by the Due Process Clause?) and, secondly, and more importantly for us Australians, demonstrates the extreme dangers of enshrining vague protections of rights in a constitution - it can lead to five unrepresentative, unaccountable, unelected people's nakedly political opinion on whether a policy is a good idea being given the force of law (for avoidance of doubt - I actually agree with the majority that same sex marriage is probably a good idea). With respect, many of the readers' comments reflect this. For instance, Wally Resterman defends the judgment by reference to an opinion poll which apparently demonstrates most Americans support the judgment. But the principle of the rule of law requires judges to justify their decisions by reference to laws, not polls.

Macca | 07 July 2015  

Ross Howard, St Paul in Ephesians clearly stated that while celibacy is the ideal state (for the member of his community he was addressing), it is not a commandment, because he understood not everyone is capable. "But I speak this by permission, and not of commandment. For I would that all men were even as I myself. But every man hath his proper gift of God, one after this manner, and another after that. I say therefore to the unmarried and widows, it is good for them if they abide even as I. But if they cannot contain, let them marry: for it is better to marry than to burn."

AURELIUS | 08 July 2015  

1. Russell, read my penultimate sentence again. Donor insemination in any circumstances – same sex couples or otherwise – deprives a child of the in principle right to be raised by his or her married biological parents. Correspondingly, it allows a parent - the father - to abandon his innate obligation to raise his children. I’m sorry, but given that Senator Wong, yourself, Brett and others bless a systemic ‘stealing of generations’ via DI, your expressions of concern here for the best interests of children ring just a little hollow. 2. “We are not talking biology here my friend, we are talking relationships.” Brett – or is it Stan/ “Loretta” from ‘Life of Brian’?– humans are not ghosts in ships. They are embodied. Only a woman can relate as a wife to her husband and mother to their children, only a man can be a husband to his wife and father to their children. That’s why, like it or not, same-sex couples simply can’t have the same choices as heterosexual couples. As Reg succinctly put it to “Loretta”: “Where’s the @!!%# foetus going to gestate?” 3. Adoption (by married opposite sex couples) is a merciful second plank after shipwreck. Tomorrow’s remedial class: “Shipwrecks should be avoided, not deliberately caused.”

HH | 08 July 2015  

How fares the “mainstream” reasoning of such august bodies as the APA on same-sex parenting these days? Any chance it may be campaigning to reinforce orthodoxies? A case in point: It is claimed by advocates of same-sex parenting that any perceived higher frequency of emotional problems of children in same sex families might be due to family traumas (divorce, etc) that preceded the formation of the same sex family, and not to the same sex nature of the family as such. To concede as much ground to this prior instability hypothesis as possible, Sullins** compared same sex families not with any opposite sex families, but with only step-parent or “blended” opposite sex families. Sullins reasoned that the latter would have experienced in their genesis the trauma of transition from divorce or relationship dissolution experienced by same-sex families. Yet, without any accompanying rationale, the APA criticised this narrowing of focus by Sullins as a “methodological flaw” in the study! Here’s a possible explanation for this otherwise incomprehensible line of attack: Sullins found that restricting the comparison to only opposite-sex step-parent families reduced the overall risk of child emotional problems due to same-sex parents by an insignificant amount. “Far from explaining the difference away, as the instability hypothesis would predict, the residual effects of prior divorce or family dissolution accounted for only a small part of the substantially higher risk of emotional problems faced by children with same-sex parents.” Draw your own conclusions re. the “mainstream”. [**Paul Sullins, “Emotional Problems among Children with Same-sex Parents: Difference by Definition”, British Journal of Education, Society and Behavioural Science 99 (2015)]

HH | 08 July 2015  

Please Mr Kelly and Double H, your own airy diktats have misunderstood my point. I did not say biology should be ignored – please read again if you are in any doubt. I said “we are not talking biology here …, we are talking relationships”. Marriage is not only about producing children, it is also about a relationship between two people that goes beyond biology. You may not agree, that is your opinion, but the point is not hard to see. The ability of a man and woman to reproduce does not necessarily mean they will be good parents. Why not address my other point about quality of parenting, or maybe that was a little inconvenient? There is no disregard for the reality of nature, but we should at least try to stick to the issue. What it comes down to is the ability of two adults to have their relationship recognised as a marriage. Why would you want such a mean spirited discrimination against the children of same sex parents? I should also add that not all same sex marriages will want children and for those couples these arguments are irrelevant.

Brett | 08 July 2015  

Sullins far from the final word on the matter. See for example http://thinkprogress.org/lgbt/2015/02/10/3621375/regnerus-sullins-same-sex-parenting/ and http://www.theatlantic.com/politics/archive/2015/02/using-pseudoscience-to-undermine-same-sex-parents/385604/ and https://familyinequality.wordpress.com/2015/02/27/bogus-versus-extremely-low-quality/ . There are others for anyone who wants to Google. Different viewpoints which show the weakness of generalising about parenting.

Brett | 08 July 2015  

1. Brett, you're confusing "necessary" and "sufficient". I didn't say that being able to perform the marital act together sufficed for being good parents. But to relate as a *good* wife and mother, sister, grandmother, aunt, daughter etc, for starters you have to be a woman. And to flourish as a wife and mother, you need a husband who, for starters, needs to be a man. Biology is there all along, even if it's assuredly not the sufficient condition. 2. I'm no more mean-spirited in saying same-sex parents just can't marry or have real sex together than I am mean-spirited when I say that humans just can't fly around in the air like birds. 3. Re the Sullins study - my point was that the APA's criticism described above is incomprehensible, not to start a paper-citation battle. Had Sullins NOT differentiated as he did, his study would have been open to legitimate criticism for failing to do so. Note that Cohen, author of the 3rd piece you cite ("Bogus") had an earlier piece in which he makes the same criticism as the APA, ... but incredibly, Cohen too fails to explain how this alleged "flaw" of Sullins paper does anything but level the playing field.

HH | 10 July 2015  

I have long claimed that our federal politicians should have a conscience vote on same sex marriage. Given developments in countries like Ireland and the USA, I have accepted the inevitability that civil marriage in Australia will be redefined to include same sex couples. Given the increasing number of children being brought up by same sex couples, I think it is a good thing that the state take away any social stigma against same sex parents. Given the ageing population, I think the state has an interest in recognising and protecting long term relationships of same sex couples who care for each other. It is one thing for Commonwealth law to recognise same sex unions as marriages. It is another thing to require all persons, regardless of their religious beliefs, to treat same sex couples even in the life and activities of the Church as if they were married in the eyes of the Church. At the moment, some religious institutions restrict facilities such as shared accommodation on a church site to married couples. Would the maintenance of that restriction in future be judged discriminatory and unlawful? Some religious schools limit employment to teachers who follow the church teaching on sexual relations. Would the exclusion of a homosexual person be prohibited once they had entered into a state recognized same sex marriage? Faith based adoption agencies tend to have a preference for placing a child who is not related to any prospective adoptive parent with a family unit including an adult male and an adult female. Would that now be judged discriminatory? In the future, religious groups are sure to have an interest in asserting that reproductive technology should be limited so that any child will be assured a known biological mother and a known biological father. Will that be judged bigoted discrimination? I hope not. But I do think these issues should be squarely on the table now. The unfortunate effect of the US Supreme Court decision was that all these issues were put off to another day without discussion and with the imputation that they are the concerns only of bigots or old fashioned religious zealots. Even bakers, florists and marriage counselors are told that they need to provide their services for same sex marriages. Why not just go and find another florist, baker or counsellor? Some of us support the state recognition of both same sex marriage AND religious freedom exercised in speech, actions and institutional arrangements. Sadly many who advocate same sex marriage have no time for those of us who espouse religious freedom as well.

Frank Brennan SJ | 11 July 2015  

The questions posed by Fr Frank Brennan are not merely speculative; they indicate the far-reaching transformation of society and people's freedoms legal recognition of same-sex marriage effects. They are questions that require answers not only in legal, but also in moral, cultural and social terms - answers which the 'keeping up with the latest legal pronouncement' and 'the sun is still shining' lines on the issue do not and cannot supply. They are questions, it seems to me, that deserve to be answered before any alteration is made to Australia's Marriage Act.

John Kelly | 11 July 2015  

After all the abuse the Church heaped on gay people (and all the others it disapproved of, and that is many indeed) it is amusing to hear the squeals of the Church hierarchy about how horrible it will be if they are called bigots. Frank Brennan seriously asks "Why not just go and find another florist, baker or counsellor?" Exactly what white Americans said about black Americans who thought they could use the same hairdressers or rent the same apartments. Honestly, some lessons should have been learnt by now. No on expects the Catholic Church to marry same-sex couples, that's their own peculiar interpretation of Christianity and they're welcome to it. On the other hand for a florist to refuse to sell flowers to some customer who wants them for a same-sex wedding is just discrimination, it isn't religion. Are we really, in 2015, confusing retail with religion?

Russell | 12 July 2015  

I don’t doubt your sincerity Mr Kelly but it does sound like another delaying tactic to me. Put marriage equality on the back burner because there are more important issues, because some Asian countries may not like it, and now because you have questions you want to have answered. I don’t think the answers are all that difficult. Under marriage equality, same sex couples will be legally married. Discrimination against them will be just that. Religious institutions will probably be exempt from anti-discrimination requirements; they usually are. Businesses should not be exempt. They are already held to account if they refuse to serve people because of matters outside their control, like skin colour or race. Sexual orientation should be no different, unless you think discrimination is okay. A legally married same sex couple should receive equal treatment under the law. In response to Frank Brennan, I have no problem espousing religious freedom, the only specific freedom we actually have in the Constitution. I’m in no position to argue law with a Professor of Law but it seems to me that all rights and freedoms, specified or implied, do have limits and I’m not sure how much freedom of religion could be used to justify business or commercial discrimination.

Brett | 12 July 2015  

In response to Russell on the difference between religion and retail, I had thought that it was only in the United States that there could there be threatened boycotts and litigation over whether a florist or a baker might decline the request to prepare an elaborate flower arrangement or a personalised wedding cake for a same sex marriage. I have no problem with the bakery or the flower shop being required to sell bread and flowers in a non-discriminatory way. You either sell goods to everybody or to nobody. Gone are the days of having signs in shops: Catholics need not apply; or Blacks will not be served. But I am happy to show deference to the artistic florist or religious baker who says: ‘Doing the wedding arrangement is an expression of my artistic and/or religious understanding of what is being celebrated, and thus I choose not to accept your offer to provide my services for a professional fee at your gay wedding. I just wouldn’t be able to put my heart in it, as I would need to do if I were to produce an arrangement of true excellence. I think it would be better for everyone if you approached the baker or florist around the corner (though admittedly I think they’re not quite as artistic or expressive as I am), and I promise not to say a word to anyone. Have a great party! I just can’t bring myself to do it joyfully and passionately. I hope you understand.’ Unlike Russell, I would prefer to live in a society where that was possible – maximising freedom for all, provided of course there was another florist or baker on hand. I suppose Russell would also strike off the Catholic marriage counselor who wanted to counsel only heterosexual couples. I would allow the Catholic counselor to continue in her role at the Church welfare agency and suggest that same sex couples seek a counselor more sympatico with their situation. I don't think this makes me a bigot.

Frank Brennan SJ | 12 July 2015  

Brett, whence your confidence that people's right to religious freedom in this matter will be respected? '' . . .probably . . ." is no guarantee of the protection religious communities require for expressing and practising their faith, especially when truth has already been radically compromised in those places where same-sex marriage has been legalised by effectively pronouncing entities that are demonstrably different to be the same.

John Kelly | 13 July 2015  

I’m afraid this is not convincing, Fr Frank. What kind of a society do we live in where someone who objects to intrinsically evil acts has to put up a false front in order not to fall foul of the law as a “bigot”? Moreover, what if the couple doubled down: “But we don’t want anything excellent or ‘artistic’. We just want a couple of bunches of your regular roses ready on the day. We’ll pick them up and do the arranging”? In this case your proposed legally exculpating excuse is unavailable to the hapless florist. He’d have to lie outright about not even being able to “excellently” deliver that minimal service, thus risking eternal damnation. Or hopefully, yet to his worldly peril, he’d alternatively have to state his real motive: his conscientious objection to proximate material co-operation in a grave moral evil that harms all of society, not least the unfortunate couple themselves. (Ah, those halcyon days of the ‘60s, when conscientious objection amidst flowers was lionised by the left, rather than demonized.) But why should the side of right be on the back foot? Why do you seem to concede the need to criminalize our conscientious, honest up front florist, as a “bigot”? There’s a huge difference between being bigoted and saying something that you merely forsee will cause offence. Our Lord thus caused offence on numerous occasions. Was Christ the King, Second Person of the Blessed Trinity, a bigot? You know the florist has every right in natural and revealed law – nay, a moral obligation, I daresay – to proclaim: “We won’t sell flowers for *any* celebration, homosexual, heterosexual or otherwise, (not discriminating against gays, you see) that flouts the sixth commandment.” That’s not bigotry, any more than a refusal to deal with murderers or thieves – gay or not – is bigotry. A regime that outlaws the honest florist for purported “bigotry” is headed for oblivion. Why compromise with it rather than ceaselessly, in season and out of season, warn it of the dire consequences? Were the prophets, the martyrs, and Our Lord Himself ill-advised?

HH | 13 July 2015  

" I suppose Russell would also strike off the Catholic marriage counselor who wanted to counsel only heterosexual couples. I would allow the Catholic counselor to continue in her role at the Church welfare agency and suggest that same sex couples seek a counselor more sympatico with their situation". What a strange hypothetical - why would a married gay people ever wander into a Catholic Welfare Agency seeking marriage counselling? But putting aside the absurdity of the scenario, let's imagine they did .... to me the Christian response would be to help as much as you can. If people in distress ask you for help it's hardly Christian to point out that they are on the other side of a boundary where they cannot be helped by the Church. Can't be helped, can't be sold a cake or some flowers ... a religion that would inspire and challenge people could never be so mean and petty. Here's a useful phrase to remember: 'Who am I to judge?'

Russell | 14 July 2015  

You’re playing with words Mr Kelly. I did my best but even I can’t guarantee the exemption of religious institutions. I think they will be exempt, as they were in the Labor Party Bill, but I’m not writing the current Bill for Parliament. You will have to contact Warren Entsch and his co-sponsors about that. Assuming (there I go again) they are exempt, I expect some churches will hide or stand (depending on your point of view) behind the exemption while other churches will be more open to marriage equality. I think a more open approach to marriage equality will not radically compromise the truth and the love of God for same sex couples will flow through those churches, but that’s just my opinion. The opportunity is there for the churches if they want it and I can see good coming from it. The "non-straight" community does not have to be the enemy – again, just my opinion.

Brett | 15 July 2015  

So are the baker and florist bigots? Flavoured terms like “evil acts” and “grave moral evil that harms all of society” point the discussion to an expected conclusion but maybe not a logical one. If the baker or florist is effectively saying “I will not do business with anyone who does not live by the commandments of my faith” (whether they be gay, straight, black, white, whatever) then while it may be offensive, it is treating all “non-believers” the same. Perhaps not bigotry, although intolerance will limit the growth potential of their businesses. But if they are saying “I will do business with people without caring if they are unrepentant atheists, murders, thieves, prostitutes of any description, people who covet their neighbour’s ass or anyone who does not respect my faith, but I will not do business with legally married same sex couples” then, despite any artistic merit in their work, the hat probably fits, even if they also do business with the few good and faithful people still left in society.

Brett | 15 July 2015  

Brett, it is not I or others who regard same-sex marriage as a radically serious misnomer who are initiating sophistic re-definitions.of reality. When it gets down to legalities and their consequences, words are pretty much all we've got. So I say, let those who desire change supply the necessary legal assurances that will prevent fines and job losses, not of hypothetical bakers and florists, but rather, of real-life people who value traditional marriage.and refuse to recognize the language of Newspeak as a worthy basis for law in this country or elsewhere. Thanks for your advice - I have written to Mr Entsch on this matter.

John Kelly | 15 July 2015  

Brett, bigotry exists, and the latter case you suggest may indeed fall under this head. However you'll have to hunt far and wide to come up with a flesh and blood specimen. Most Christians (et al) I'm aware of who would refrain on conscientious grounds from material co-operation in same-sex celebrations would consider themselves equally bound to refuse to co-operate in celebrations of other acts or lifestyles they view as in breach of the decalogue, such as murder, theft & so on. Furthermore, they would view "not caring" about the sinful, self-destructive lives of others as itself a violation of a decalogue precept - namely, "Love thy neighbour as thyself". Likewise, were one to see someone recognized as a same-sex "spouse" in, say, mortal danger and refused on that ground to consider lending assistance.

HH | 15 July 2015  

Bigotry exists and sophistry is not one sided. I still think religious institutions will be exempt from anti discrimination requirements. Whether they should be is a matter of opinion but it would surprise me if they were not. Now some want to extend the exemption to any business that decides it will discriminate against a particular group of people who are doing nothing illegal or wrong, in the name of freedom of religion. Imagine if a real-life flesh and blood person was refused service because they were a man or woman of a certain age – something that is entirely natural to them and not illegal – with the implication being that who they are makes them somehow less worthwhile than others. It’s ridiculous and I would just go elsewhere but that is not the point; it should not happen in the first place. The difference between conscientious objection and bigotry? When you take away all the excuses, just like beauty it is very much in the eye of the beholder.

Brett | 15 July 2015  

Indeed sophistry may not be one-sided, Brett, but one doesn't have to be Wittgenstein or Ayer to see its relevance to the re-defining of marriage. Bigotry and sophistry are both inimical to truth and should, regardless of their provenance, be resisted, wouldn't you think?

John Kelly | 16 July 2015  

Well, I simply disagree about conscientious objection and bigotry, Brett. Particularly when people like Rosa Parks and Martin Luther King effectively used conscientious objection as a weapon *against* bigotry. But let’s go with this anyway: so you believe identifying bigotry is “very much” a subjective matter … but you’ll criminalize it anyway? “I hereby sentence you to 10 years jail because you say tomartos and I say tomaytos”? Please explain - that’s disturbing, and frankly goes against everything you’ve been saying in defence of tolerance (albeit a concept of “tolerance” I have problems with.) I hope I’ve got you wrong here.

HH | 16 July 2015  

Okay Double H, I see a conscientious objector as someone who stands up against the odds for a right or opportunity to do something or be treated equally or just as often, not to have to do something such as go to war or be treated unequally. Objection to the conscription ballot comes to mind here and it can be a weapon against bigotry – eg, by King and Parks, as you noted. A bigot is more likely to want to prevent or restrict the rights or opportunities of some others, usually for no better reason than the “others” are different is some way. The thing with definitions like these is there will be times when some will see bigotry as a conscientious objection or vice versa, so it can be subjective. There is a fellow in Canberra who announced to the world he would divorce his wife if marriage equality was legalised. He would deny others the same right to a choice that he has freely exercised and he copped a lot of unfortunate extreme flack for it. It is his right and his choice to do so, but does this make him a bigot or a conscientious objector, or neither? It depends on your point of view. It is a publicity stunt for sure, but at the end of the day it only touches his family and (hopefully) should not hurt anybody. Marriage equality is like that – it touches the couples involved and their friends but it will not have any effect on the marriages or lives of those who object to it. As for your hypothetical tomato seller going to jail for ten years, I believe you exaggerate. When do flesh and blood specimens in Australia go to jail for discrimination?

Brett | 16 July 2015  

I have made other points supporting marriage equality Mr Kelly but sticking with yours, expanding the definition of marriage to embrace marriage equality is not sophistry. Marriage is a social construction, contract or arrangement for people; it is not a scientific formula. The meaning of marriage can change and if the Marriage Act defines marriage as a union of two people or words to that effect then legally, that is what marriage is. This is about the legal basis for marriage remember, to apply to the whole community, Christian or otherwise. I hope Warren Entsch confirms to you that churches will have an exemption, not because they should, but because the churches that reject marriage equality will not be touched by it. Other churches reaching the gay community will be blessed by it. There is nothing to fear from marriage equality.

Brett | 19 July 2015  

"There is nothing to fear from marriage equality." There is something to fear, for some people - and that's losing power, losing control of the agenda. The Church made a cultural taboo part of the Christian religion and now can't admit that its stance is wrong; the taboo has largely broken down and has no religious significance whatsoever. Like divorce, like contraception, like abortion and now with gay marriage, the community has considered the case and changed its attitude. Each time, when the Church maintains that whatever it has said is right must be right, it cuts itself off more from the community. For years it has been speaking to practically nobody; at last comes a Pope speaking in a way that people might listen. He is not going on about the Church's position on those sexual topics. He seems to take the model of Christ seriously in that he reaches people, his Christian message is being listened to. That hasn't happened for a long time. I suspect that he doesn't fear, or care that much about, gay marriage - it's just a cultural taboo that is breaking down. The Pope is concerned about the real Christian message.

Russell | 19 July 2015  

Brett: "Marriage equality is like that – it touches the couples involved and their friends but it will not have any effect on the marriages or lives of those who object to it." Not have any effect? Brett, just scroll up what we've been discussing here and explain to me how "marriage equality" has no effect on on the lives of Christian bakers and florists who choose not to co-operate in its affirmation. Does thousands of dollars in fines and lawyers fees equal "no effect" to you? Well, it's nice for some, I guess.

HH | 21 July 2015  

Russell, for the record: Christ preached the truth. Some in the "community" accepted it, but most didn't, and He was killed by those who objected to His teaching. Christians who followed Him were a brutally persecuted minority in the Roman Empire for centuries until Constantine. As for sexual ethics, Christ was even more severe than the Judaic tradition He grew up in - saying, for example, that adultery covered not only physical acts, but mental acts as well. He also said "And whosoever shall not receive you, nor hear your words: going forth out of that house or city shake off the dust from your feet. " (Matt. 10) Yeah, He was a real community sorta guy...

HH | 21 July 2015  

"Marriage is a social construction . . ." Foundational social realities and the language that describes them are not arbitrary or merely subjective, Brett. Not all, of course, accept marriage as a divinely created institution (though many more throughout the world do than advocates for same-sex 'marriage' acknowledge). From Socrates to Swift we know that words - especially those with as strong a grounding in human biology as marriage - have a traction that demands respect for the sake of social coherence and human flourishing world-wide - not only in affluent western nations that misguidedly seek to privatise, if not outlaw completely, their religious heritage.

John Kelly | 22 July 2015  

I’ve made valid points supporting marriage equality John but sticking with yours, marriage is a social construction. I did not say “arbitrary”, but social realities reflect the society to which they apply and they do change as society changes – that is the reality. This discussion is about the legal definition of marriage. But many faithful people would include marriage equality in the divinely created institution of marriage blessed by God, possibly many more than you acknowledge. Churches will be freely able to celebrate the love and joy of same sex marriages as they would other marriages, embracing relationships blessed by God. You don’t have to share the celebration if you don’t want to, but please don’t deny others the opportunity to be included.

Brett | 23 July 2015  

More on the hypothetical bakers and florists who would chose to discriminate against marriage equality. Why should (some) bakers and florists have the deciding voice in who should or should not be married? Let’s not ignore it, this is exactly what some marriage equality opponents want when they talk of conscientious objection. All points of view should be respected in a mature society but people acting in a perfectly legal way should not face discrimination. Religious organisations are exempt from some laws but you rarely get to chose which laws you obey and which laws you can disregard. That would lead to chaos and although libertarians may prefer it, I suspect others would prefer not to go down that path. Good to see the ten years gaol term for tomato sellers has been downgraded to a fine.

Brett | 27 July 2015  

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