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A common good argument for legalising same sex marriage

  • 31 August 2016
  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.

What 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