Civil Liberties Australiaspacer
 

By Max Thomas*

Watching question time in the House of Representatives recently, it was clear to me that the marriage plebiscite impasse would remain.

The Turnbull government has almost no political capital and would therefore not be likely to risk worsening internal divisions with little to gain by introducing a Marriage Bill.

Politicians are reluctant to get too far ahead of their constituents for fear of isolating themselves, but this can amount to a failure of leadership. By not passing legislation to enable the plebiscite, the Parliament has excluded the community.

I contend that there has been insufficient discussion of the potential ramifications of amending the Marriage Act to include same-sex marriage. The public interest is undeniably affected where children and the family are concerned. Consequential impacts on human services provided by government must also be considered.

The proposed Marriage Amendment (Marriage Equality) legislation would define marriage as a union of two people; clarify that ministers of religion are not bound to solemnise marriage by any other law; remove the prohibition of the recognition of same sex marriages solemnised in a foreign country; and include a regulation-making power so that consequential amendments can be made to other Acts.

Pressure to consent to the proposed legislation is constant and growing. Anyone with a contrary viewpoint or who seeks further explanation risks intimidation and derision. A Member of Parliament was ridiculed during the last sitting for expressing concern about the “progeny” of same-sex relationships. He was then offered counselling in a patronising manner by another MP who also said she understood why he was still a bachelor in his forties.

One of the reasons for resisting a plebiscite among same-sex marriage proponents is that they fear homophobic abuse. Hostility, vilification or intimidation from either side of the debate is unacceptable.

With the politicians seeming content to sideline themselves, the community now has an opportunity, perhaps an obligation, to confront the questions politicians seem unable or unwilling to ask. We should also test assertions and misgivings that are bound to occur in any discussion and which need to be resolved before widespread consensus can be reached.

Civil Liberties Australia (CLA) has proposed that the Parliament should pass an Act so that same-sex couples can marry, but permit it to operate only if/when a plebiscite shows a majority of Australians favour such a law. The proposed plebiscite question is: “Do you support a change in the law to allow same-sex couples to marry?”

Ideas sparked by the underground fortress

Some ideas for discussion occurred to me while sitting in that grand underground fortress of federalism:

  • We are accustomed to hearing that same-sex relationships should be included in the definition of marriage and that this is purely a question of equality.
  • The Australian ideal of a ‘fair go’ is offended when we believe someone is being treated unfairly. The term “marriage equality” appeals to the ‘fair go’ sentiment, whereas a demand for marriage redefinition probably would not.
  • Inclusion of same-sex relationships into the established and socially fundamental institution of marriage requires that marriage must be altered to accommodate such relationships.
  • Most people would agree that everyone should be treated with respect, regardless of their sexual orientation or relationships. However, it is mere self-deception to think that ‘equality’ can be achieved by applying the same definition to intrinsically different things. Nor is equality achieved by the levelling of society to a kind of Orwellian sameness. Failure and tragedy has often ensued where this has been tried. We are equal but not all the same and it is obvious that we have no wish to be. The success of a relationship is self-evident and requires no certification.
  • There are communities, collectives, institutions, schools, professions, societies, organisations, clubs, religions, ethnic and other associations and groupings of many kinds that are effectively exclusive and seen to be so. These groups are usually based on shared history or common interests. A mature and successful society accepts diversity and does not see the pursuit of common interests or preservation of special identity as discrimination. Is that not the foundation of multiculturalism?
  • Change does not happen in a social vacuum. Weakening one established social tradition entails risk without necessarily strengthening another. Are same-sex relationships good for nurturing children and how does that affect society?
  • The law as it relates to the family is certainly no place for social experimentation. Making or amending laws can sometimes produce unintended consequences that may be irreversible.
  • If same-sex relationships are a successful model for procreation and the socialisation of children, then the male/female model and the family represent a redundant or failed evolutionary experiment.  But the success of the human species does not support this hypothesis and there is abundant evidence to the contrary. The sad failure of so many heterosexual or traditional marriages cannot logically be used to argue that other forms of marriage are preferable.
  • Attempting to normalise the absence of female and male role models seems unlikely to improve a society already suffering the effects of children lacking this crucial aspect of parenting.
  • The legal definition of marriage in Australia is the exclusive union of a man and a woman, voluntarily entered into for life. But the proposed legislation simply defines marriage as a union of two people. With such an open definition, it is not a great leap of imagination to think that future advocates for polygamous, occult or pagan marriages might also demand ‘equality’.
  • Attitudes which are extreme by Australian standards are represented in our Parliament and serve to remind us of the need for vigilance. If those with racist, xenophobic or even misanthropic views come to believe that marriage can be easily manipulated, it could allow them at some future time to impose their agenda on society by regulating who may or may not marry whom.

Raising issues not much debated

Mr Ian Goodenough MHR, in a speech to Parliament on 13 October 2016, raised some issues in relation to same-sex marriage which have received little media attention.

I think some of his concerns can be applied equally to heterosexual (traditional) marriage, but it seems wise to encourage the community to think carefully and beyond the notion of supposed ‘marriage equality’. Here is a very brief outline of the speech which can be found in its entirety at:

http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/f2541705-5a09-4607-bf3f-1d6fd9b611ff/0079/hansard_frag.pdf;fileType=application%2Fpdf

  • I rise to support this enabling legislation for a plebiscite.
  • I acknowledge that traditional marriage is not perfect. There are many issues with family breakdown, divorce and dysfunction. However, it is arguably the most stable social institution that we currently have.
  • I have great confidence in the ability of the Australian people to conduct a mature and civilised debate.
  • Parliament would create legally married couples who are physically unable to have children but will have the same rights as all married couples under the law.
  • Consider the ethics and future cost of reproductive technology to the health system [which may be expected to rise with increasing demand from same-sex couples].
  • Consider the ethical and legal consequences of commercial and international surrogacy arrangements [that may arise if other options are unsuccessful or not available].
  • Will the proposed change to the marriage legislation trigger consequential issues which need to be regulated? [but not anticipated prior to changing the Marriage Act. Who would be affected?].
  • The rights of children must be paramount.

Child protection and welfare authorities would usually be expected to discourage the placement of children in a situation which is unusual and likely to draw unwanted attention and, potentially, ostracism. ‘Why did my mother or father leave? Did he/she not want me? Why can’t I be like other kids?’ These and other questions are sure to be asked and possibly earlier than a child could be expected to fully understand the answers.

The Federal Parliament has power to legislate on the custody and guardianship of children. But this presents a classic ‘chicken and egg’ conundrum. Should marriage be redefined without providing for the welfare of children? How could this be done without undue and unacceptable interference by government in family matters?

Extreme populism is a danger in itself

The present government has shown its unwillingness to address same-sex marriage, which inspires little confidence in its ability to safeguard the interests of any children of such marriages. A small number of children have already been adopted into same-sex relationships but this is not a conclusive case for marriage redefinition. If anything, it emphasises the need to resolve the matter of same-sex marriage without delay.

Australian society has completely accepted and integrated de-facto marriages and this is enshrined in law. It therefore seems that redefinition of marriage is unnecessary except to accommodate a demand that same-sex relationships be admitted and preferably without a plebiscite.

I am not suggesting that the present campaign for so-called ‘marriage equality’ is anything but well-intended, but I do say that society must defend its social boundaries, in this case against extreme populism, as well as its physical borders.

As the Prime Minister moved that any further questions be placed on notice, a question entered my mind with its inherent reply: what is marriage for?

ENDS

* Max Thomas is a retired member of Civil Liberties Australia, living in Gippsland. His background is in private manufacturing and government services in the water, agricultural and environment science areas. The article was published first on Open Forum: http://www.openforum.com.au

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