The same sex marriage debate is not going away in Australia or the US. It may be delayed in the UK, and it is concluded in Canada. It is not a debate about what restrictions church communities might continue to impose rightly on church weddings. It is a debate about what recognition the civil law should give to committed monogamous partnerships which may or may not involve the nurturing and education of children.
I remain committed to legal recognition of civil unions while maintaining the distinctive institution of civil marriage as the bond between a man and a woman open to bearing and nurturing each other's children. I am aware that the maintenance of this distinction is causing hurt to some people, while others think it is too compromising.
It was a galvanising moment in the same sex marriage debate when audience member Ross Scheepers asked Joe Hockey on Q&A to 'tell us and Senator Wong why you think you and Melissa make better parents than her and Sophie'. Hockey replied: 'I think in this life we've got to aspire to give our children what I believe to be the very best circumstances and that's to have a mother and a father ... I'm not saying gay parents are any lesser parents but I am being asked to legislate in favour of something that I don't believe to be the best outcome for a child.'
Compere Tony Jones then asked Penny Wong for her opinion.
'It is sad', she replied, 'that some families have to feel that they have to justify who they are because when you say those things, Joe, what you're saying to not just me but people like me is that the most important thing in our lives, which is the people we love, is somehow less good, less valued. And if you believe that then you believe that, but I have a different view.'
When asked if it was hurtful Wong replied, 'Of course it is but, you know, I know what my family is worth.'
When Wong's partner Sophie Allouache gave birth to daughter Alexandra a fortnight before Christmas last year, many Australians delighted in the front page photograph of the newly founded family. Allouache and Wong are not married but they are committed in love to each other and they have now committed to bringing up their child.
Like all children, Alexandra has a biological father. Unlike the children of Hockey and his wife Melissa, Alexandra will be brought up and nurtured primarily by a couple not including her biological father. In future, couples like Allouache and Wong may have the option of producing a child who does not even have a biological father.
The essence of equality is that things which are the same are treated the same and things which are marked by relevant differences are treated differently. If things marked by irrelevant differences are treated differently, there might be a breach of the principle of equality and there might result an unjustified act of adverse discrimination.
It would be wrong for the state not to recognise mixed race marriages. The marriage of a mixed race couple should be treated in the same way as the marriage of a couple of the same race. Race is not a relevant difference when it comes to marriage. On the same reasoning, I've argued that the time has come for the state to recognise the unions of same sex couples who are committed to faithful, supportive, long term exclusive relationships.
The state has an interest in seeing such relationships supported even though some citizens for religious or other reasons may have reservations or objections about the sexual relations and sexual acts which might be entailed in such relationships. Basically that's none of the state's business, nor is it the business of religious persons whose views about the good life are not being sought by people living in such relationships.
I have continued to draw the line at civil unions. If a same sex relationship was to be treated exactly the same as a heterosexual marriage, then the couple in a same sex relationship recognised as marriage should have exactly the same entitlements as the couple in a heterosexual marriage. I have two substantive reservations, which could be held in good faith by people of any religious conviction or none whatever.
Couples who are unable to bear their own children can avail themselves of medical and scientific assistance. Naturally couples would like to be able to bear and nurture children who have their genetic imprint, and only theirs.
I am enough of a 'natural lawyer' to think that all persons have a natural right to a known biological mother and a known biological father. The idea that the state would routinely authorise state assistance for the creation of children without a known biological father and a known biological mother concerns me. It will not be long before scientists will be able to create a child from the genetic material of just two men or two women. Such children and their advocates would need to concede that but for such a technological breakthrough they would not exist.
But some of these children will undoubtedly face existential challenges of novel dimensions when they realise that they do not have a known biological father and a known biological mother. I am very wary about the state writing a blank cheque in the name of non-discrimination committing itself to the development and provision of artificial reproductive technology such that children with these challenges will be routinely created.
Though I have no objection to adoption being available to same sex couples when the child for adoption is related to one of the couple (and that is usually the case), I do think that a child who is not related to any prospective adoptive parent should be given in adoption to the available couple most suited to bringing up the child. All things being equal (which inevitably they are not), the state acting in the best interests of the child should be able to show a preference for a family unit including an adult male and an adult female.
Can we have 'marriage equality' while maintaining a ban on reproductive technology using the genetic material of just two men or two women, and while maintaining a state entitlement to choose adoption in the best interests of the child who has no adoptive relations?
If not, then we should settle for civil unions which remove all adverse discrimination against a same sex couple by virtue of their relationship while maintaining state preferences for all children having a biological mother and a biological father and for adoption of any unrelated child into a family with an adult male and adult female.
When the matter comes on for debate, all political parties should provide their members with a conscience vote. While some conservative religious groups in Australia support Tony Abbott's denial of a conscience vote, the shoe is on the other foot in the UK where the Liberal Democrats want to force their members to support a vote for same sex marriage.
The Catholic Archbishop of Southwark, Archbishop Peter Smith, has said: 'The Government's proposal to change the definition of marriage is a profound legal reform which, if enacted, would have major longterm consequences for our society. It is very important in my view that MPs of all parties should be given a free vote on an issue of such major significance. It is an issue of conscience because fundamental moral questions are at stake about the true meaning of marriage and how the common good of society is best served.'
This principle should apply whichever foot is shod.
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.