Last Thursday, the Australian Parliament's 'new paradigm' swung into action with the House of Representatives passing a motion calling 'on all parliamentarians, consistent with their duties as representatives, to gauge their constituents' views on ways to achieve equal treatment for same sex couples including marriage'.
If this keeps up, we will have the High Court publishing a judgment calling on all judges to hear argument from counsel for the parties in taxation matters. Even under the old paradigm, it was the job of parliamentarians in a democracy like ours to gauge their constituents' views on matters likely to be debated in parliament, particularly contested moral issues.
Should my local member seek to gauge my views on same sex marriage during the summer recess, I would assure him that paradigms, norms, and symbolism do matter. The distinction between same sex marriage and legal recognition of same sex unions is not just a matter of symbolism. They create different realities regarding children's human rights. Because of that, I support the latter, not the former.
'Marriage' means different things to different people. For me, the paradigm of marriage is an exclusive, indissoluble covenant between a man and a woman entering a partnership for life, ordered to their good and open to the procreation and education of their children.
Not every marriage matches all the features of this paradigm. Some couples are infertile or too old to have children. But such marriages do not overtly breach it, so the paradigm still makes sense. In contrast, same-sex marriage overtly breaches the paradigm that marriage is an institution for the good of the children of the couple.
Australian civil law on marriage varies from my paradigm. Under Australian law, marriage is not indissoluble. Either party can terminate a civil marriage on one year's separation. There is no requirement that the parties be open to the bearing and nurturing of each other's children. There are many married couples who choose not to have children.
There are many couples in Australia who choose not to marry. There are many children born out of wedlock. There is an increasing number of children being raised by same sex couples. If same-sex marriage is legalised, because marriage carries the right to found a family, it may not be too long before a significant number of these children share the genetic inheritance of two same sex parents.
For the moment, every child has one biological father and one biological mother. In the best of circumstances, the child will know and be nurtured by them.
Especially with an ageing society, the state has an interest in recognising and affirming relationships between persons committed to supporting each other, regardless of their sexual orientation. Discrimination against same sex couples should be removed in the public domain.
In the UK, this has been achieved by legislating for civil unions. Archbishop Vincent Nichols, President of their Catholic Bishops Conference, recently said, 'We were very nuanced. We did not oppose gay civil partnerships. We recognised that in English law there might be a case for those.'
I would tell my local member that it is time Australia went the same way. And I would hope our bishops would see it that way too, though I concede that the present Pope did not when he was prefect for the Congregation for the Doctrine of the Faith.
Many same sex couples tell us their relationship is identical with marriage. Until the majority of married couples are convinced this is so, politicians would be wise not to consider undoing the distinction between marriage and civil unions. Our parliamentarians could legislate to recognise civil unions, though there is some constitutional doubt whether this would best be done by the Commonwealth or State parliaments.
In considering whether to advocate a change to the definition of marriage, citizens need to consider not only the right of same sex couples to equality but even more so the rights of future children.
The State has an interest in privileging group units in society which are likely to enhance the prospects that future children will continue to be born with a known biological father and a known biological mother who in the best of circumstances will be able to nurture and educate them.
That is why there is a relevant distinction to draw between a commitment between a same sex couple to establish a group unit in society and a commitment of a man and a woman to marry and found a family.
An infertile married couple might expect State assistance in providing them with children who are genetically theirs. In the name of equality of adults, future children should not be deprived the opportunity to be born of a man and of a woman.
I rather like having a Mum and a Dad, and I suspect in future that will remain the case for most children. Often, orphans too are consoled to know they have a biological father and a biological mother. And most countries are now legally recognising they have a right to know who they are.
Decisions about adoption and assisted reproduction should always be informed by the best interests of the child. If we go down the track of same sex marriage, we are acknowledging that same sex couples will have an entitlement to utilise technology to produce children with the genetic inheritance of each of them, and that same sex couples will be equally situated with a husband and wife team to adopt children to whom they bear no relationship.
As a matter of social policy, we will be affirming that the State has no interest in privileging a social institution which ensures that children have a genetic inheritance from one biological father and one biological mother, and that, all things being equal, they have the possibility of being adopted by a father and mother.
I think we can ensure non-discrimination against same sex couples while at the same time maintaining a commitment to children of future generations being born of and being reared by a father and a mother. To date, international human rights law has appreciated this rational distinction.
Instead of stating 'All persons have the right to marry', the International Covenant on Civil and Political Rights provides: 'The right of men and women of marriageable age to marry and to found a family shall be recognised.' The Covenant asserts: 'The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.'
I believe our parliamentarians should maintain this distinction, for the good of future children, while ensuring equal treatment for same sex couples through the legal recognition of civil unions.
If our parliaments were to legislate, redefining marriage as a relationship centred on the couple regardless of the concerns of children, religious groups should be free to maintain their paradigm of marriage for their own members. After all, we Catholics classify marriage as a sacrament, and even now most civil marriages in Australia are not capable of sacramental recognition in our Church.
After the summer recess, I do hope our parliament can get on with its real work for the good of present and future generations of Australians.
Fr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. A fuller treatment of this issue can be found in his book Acting on Conscience (University of Queensland Press, 2007). Flickr image by Auntie P