According to Jim Wallace, Managing director of the Australian Christian Lobby, “Marriage is between a man and a woman”. Furthermore, “It’s not for two per cent of the population to redefine a majority institution, particularly when it’s so important an institution to a healthy society” (SMH, May 5,2008).
Is this opposition to same-sex marriage analogous to the support of slavery? The reported claim being made by the Australian Coalition for Equality suggests the answer is yes. My initial reaction to Rodney Croome’s argument, when I heard it on ABC RN two days ago, was one of sympathy. After considering Croome’s claims in the light of my recent academic focus on John Stuart Mill’s On Liberty; particularly Mill’s argument against the voluntary slave contract; I feel that a strong argument can be made in Croome’s support. While I recognize that I may be preaching to the converted, I will present my support here in the hope that it stimulates further debate against Kevin Rudd’s current Labor Policy position.
According to the New Law Dictionary and Glossary of 1850, a slave is “One who is by law deprived of his liberty for life, and becomes the property of another” (1998:936).
The argument to deny freedom from slavery, if it were to take the same form as Mr Wallace’s argument against same- sex marriage, would look something like this;
You are a slave. By law, you have no liberty. By law, you are owned. It is not for you to redefine the institution of slavery, particularly since slavery is such an important institution for the health of our society. Our plantations and our economy will sink into disrepair if this institution is not maintained. Your lack of liberty is therefore necessary.
Like the laws that once sustained a tradition of slavery, the law that opposes same-sex marriage seeks to limit a group of individuals, by tradition and utility, to a state of affairs that restricts their equality. If you are interested in confirming the similarities of this hypothetical argument to those of early to mid-nineteenth century supporters of slavery, I recommend the Carlyle-Mill “Negro Question” debate as a starting point.
The critic might counter that same-sex relationships are tolerable; that equality is not the issue. People may choose this particular way of life, and receive all of the same benefits that heterosexual couples receive from the traditional marriage contract. This counterargument is harder to respond to. If such an institution did exist for the benefit of same- sex couples, would they be happy if it was called something other than marriage? I will return to this question shortly.
Slavery is a direct denial of autonomy. As J.S Mill (On Liberty, 1973:583) would say, the slave permanently forgoes their use of autonomy. The denial of equality is a secondary consideration. Lack of equality harms the autonomy of the individual by reducing the options open for choosing. Mill’s ideal government would deny the validity of a slave contract on the grounds that autonomy is directly negated. It is clear that this is not the basis for denying a same sex contract. Nor is the government denying this contract on the basis of indirect harm to autonomy. As has already been noted, the only basis for the government’s position is an argument to maintain a traditional definition of the institution of marriage. That definition is seemingly inseparable from the religious tradition of marriage. While it may be true that many state authorities now allow marriage regardless of religious affiliations, the demand for traditional male/female qualifications still persists. This persistence might be morally justified by a few religious doctrines, but it can’t be justified by a government that claims to recognise equality for all.
Returning now to the question of whether same-sex couples can share equally in the benefits of marriage under a different name. This approach might provide equal financial benefits. It may even lead to equal social opportunities; opportunities that might include free and equal access to adoption centres and fertility treatments. Nevertheless, a society that would seek to institutionally identify some groups as inherently different to other groups on the basis of their non-traditional gender mix is, in my opinion, a long way from accepting a principle of equality.
References:
Burrill, A.M., 1998. A New Law Dictionary and Glossary: Containing Full Definitions of the Principal Terms of the Common and Civil Law, The Lawbook Exchange, Ltd. Originally published: New York : J.S. Voorhies, 1850.
Mill, J.S. (1973) ‘On Liberty’ in The Utilitarians. Garden City, NY : Anchor Books (p 583).
http://cepa.newschool.edu/het/texts/carlyle/negroquest.htm
http://news.smh.com.au/gay-activist-questions-govt-decision/20080505-2ay9.html
May 8, 2008 at 11:10 am |
Why is it, do you think Brad, that every time marriage comes up so does religion? Isn’t marriage a secular and legal contract between two persons?
Nice take on Mill by the way too.
May 8, 2008 at 9:47 pm |
Nice piece, Brad. I have some further reading for you here with regards to Rudd’s (faith in) politics.
The validity of a marriage comes down to one document, the Marriage Act of 1961; however, one needs to ask, “who are the law makers?” We begin to realise why religion has such a strangle hold on marriage. God made Adam and Eve, not Adam and Steve, right?
May 8, 2008 at 10:45 pm |
Thanks Simon and Nathan,
I’ll take up that suggested reading asap Nathan. In response to your question, Simon;
I am sensitive to the tendency in western society to think of religion through the rather limited prism of Christianity, Islam and Judaism. Whilst I am hardly qualified to make claims on behalf of the many other diverse forms of religion, I can confidently assert that same-sex marriage does not present doctrinal problems on a religion-wide basis. One reason that “religion” asserts itself in debates of same-sex marriage in western society is precisely due to the limited western perception; that religious doctrine forms the terms and conditions of the marriage contract. This is evidenced by the fact that the Australian Christian Lobby has chosen a supportive stance toward the Labor Party policy. Since the ACL is involved in the debate, it is necessary to recognise the force of their presence.
I really don’t take issue with the ACL offering their support. That is their position and they are entitled to it. Neither does the similarity between the ACL position and the government position present a valid problem. The government should not shy away from a position purely on the grounds that it might seem to be supportive of a religious doctrine.
If the government can demonstrate that its legal denial of a same-sex marriage contract is consistent with a principle of equality that justly defends the autonomy of every individual, then it can expect the support of a society that values that principle (until society decides that a better principle exists). My argument suggests that the current attitude to same-sex marriage is not consistent with liberal values. Therefore, until the government legally recognises same-sex marriage it will leave itself open to charges of hypocrisy and bias.
I suspect I would be guilty of contradiction if I were to agree that marriage is defined as a legal and secular contract between two people. That definition of marriage would permit a government to deny religious marriage contracts and polygamous marriage. Therefore, I can’t justifiably raise secularity to a position of authority. The highest legal authority that I can recognise is the authority of individual autonomy. That is currently the foremost principle that should legally govern relationships between peoples.
May 9, 2008 at 10:58 am |
“That definition of marriage would permit a government to deny religious marriage contracts…”
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Our government doesn’t recognise religious marriage contracts as any more binding than a De Facto relationship. I know this first hand.
I completely agree with you Brad and I just can’t see that if religion is removed how the prohibition of same sex marriage isn’t arbitrary.
May 9, 2008 at 5:45 pm |
If we can’t advocate one way of legitimizing marriage -or one way to legitimate other issue, given ACL’s recent beef with surrogacy- over another, then aren’t we just discussing relativism? Not allowing same-sex marriage because of religious belief is a disgrace.
This is the problem with Democracy; it can’t allow for individual autonomy. The problem is we have a popularity contest, and the recent election proved this. The last time I checked Australia wasn’t a Theocracy.
May 10, 2008 at 7:27 pm |
Kevin Rudd’s essay, Faith in Politics (link provided by Nathan, May 2008), confirms my confidence that Mr Rudd can engage respectfully and critically with many of the important issues that face us today. It is notable that Kevin Rudd, on the issue of sexual morality, has demonstrated a level of dissatisfaction with “a narrow tick-the-box approach to passing a so-called Christian morals test” (2006). The Marriage Act 1961 – Sect 88EA, and the definition of marriage that supports this section, present what can only be described as a legal square box. What legally justifiable principle, Mr Rudd, can you offer in support of maintaining this particular test for recognition of marriage?
May 11, 2008 at 1:08 am |
Hi Brad,
At first glance, I am unclear about using an argument relating to slavery in relation to same-sex marriage as the subject matters are quite different, however, if the structure of the argument in relation to same-sex marriage is logically the same as for slavery then it makes sense that it could be used.
This following argument resonates for me: “As has already been noted, the only basis for the government’s position is an argument to maintain a traditional definition of the institution of marriage. That definition is seemingly inseparable from the religious tradition of marriage. While it may be true that many state authorities now allow marriage regardless of religious affiliations, the demand for traditional male/female qualifications still persists. This persistence might be morally justified by a few religious doctrines, but it can’t be justified by a government that claims to recognise equality for all.”
Indeed – marriage is a product of Commonwealth legislation and can be defined by the federal parliament as it sees fit. Religious aspects of marriage, to the expent they exist, are an entirely different kettle of fish – there is no reason that the federal parliament should enforce a particular religious conception of marriage on the Australian population. As such, there is no religious reason why the federal parliament should not legislate in favour of gay marriage.
Lastly, the liberal (and to my mind strongest) argument: why should two people be prevented from getting married if they want to, regardless of their gender? I havn’t heard of any reasonably reason.
May 12, 2008 at 11:23 pm |
Thanks Sacha,
Your comments have helped to clarify the heart of the issue. Assuming that the definition of marriage has been defined by an independent Commonwealth, I think it will be necessary for me to seek the rational grounds for that definition. Judging by the Attorney-General’s skirting around the question on the 7:30 report recently, that might take some time.
May 15, 2008 at 10:57 pm |
Hi Brad,
I don’t think there is a rational basis for the definition of marriage – it’s based on electoral politics which is based on tradition and history. But it could well change within two decades.
May 17, 2008 at 7:48 pm |
I think one would have to take a look at the constitution related to marriage, however, I’m delighted to see the Supreme Court of California allow same-sex marriage on the grounds that it is unconstitutional not to allow same-sex marriage.