A few days ago I asked Brian if he would kindly write an article about the current no. 1 hot topic: gay marriage
I spent a lot of time last year stewing about the gay marriage issue. The result of this was my article in Compass, Summer edition, last year.
You are very welcome to use this if it suits your format and meets the need
Thank you Brian!
April 4, 2012 Brian Lewis, Ballarat, Australia Brian's previous articles
MOVEMENT FOR SAME-SEX MARRIAGE
movement for the legalisation of same-sex marriage has today become a prominent
aspect of western culture. Twenty or thirty years ago the idea was virtually
unknown. It speaks volumes for the cultural power of the gay and lesbian
movement that today not only is same-sex 'marriage' legally recognised in many
European countries and in some states in America and Canada but also is set to
become law fairly commonly elsewhere, including possibly in Australia. In
February 2011, the Prime Minister called on parliamentarians to gauge the views
of their constituents on 'ways to achieve equal treatment for same-sex couples,
including marriage'. In the United States of America 'defense of marriage'
amendments have been passed in Hawaii and in 29 other States. Five other States
and the District of Columbia permit same-sex marriage.
Australia, since 13th August 2004, the Federal Marriage Amendment
Act, which amended the Marriage Act of 1961, banned same-sex marriages from
being performed or recognised in Australia. However, all levels of Australian
Government do recognise cohabiting same-sex couples as de facto couples, having the same rights as cohabiting heterosexual
couples under state law. In November
2008, the Federal Parliament passed laws that recognised same-sex couples in
federal law, offering them the same rights as unmarried heterosexual couples in
such areas as taxation, social security and
health, aged care and employment. This means that same-sex couples who
can prove that they are in a de facto
relationship have most of the rights of married couples since 1 July 2009.
further development is that in New South Wales, Tasmania and Victoria, same-sex
couples can access domestic partnership registries, and civil partnerships are
performed in the Australian Capital Territory. However, even though there is
equality of rights, Australia does not have a national registered partnership or
civil union scheme.
argument generally advanced for same-sex marriage rests upon the demand for
equality, irrespective of gender. The
claim is made that every member of the human community has the same basic
rights, including that of marriage, and thus, if justice is to be served, no
discrimination against any member of society, particularly persons engaged in
loving, committed and stable relationships, should be permitted. This is a
familiar current assertion, but
little attempt is made to discuss the existence of such a right for all and to
consider other important issues, such as the nature of marriage, the question of
children and the impact on the public interest and the common good.
clarifying what is possible for Australian civil law to do as regards legalising
same-sex civil unions short of supporting civil marriage, this article tackles
the fundamental issue of re-defining traditional marriage as a secular reality.
Legalising Same-Sex Civil Unions without using the term Marriage
Australia federalism involves both independent action by states and territories,
with oversight by the Federal Government, and action at the Commonwealth level.
As has already been mentioned, under Australian law de
facto relationships are recognised as well as marriage. Federal law covers
marriage, whereas state and territory laws are largely responsible for de
facto relationships. In the
light of this, the proposal has been made by priest and lawyer, Frank Brennan,
that the states and territories should legalise same-sex civil unions or
partnerships without changing the nature of state-recognised marriage. He says:
'Just as the states and territories deal with de facto relationships, the best
way to proceed is for all the states and territories to give recognition to
same-sex civil unions' (Brennan 2011). This
would involve the granting of the same rights enjoyed by heterosexual couples
under state law but would not use the term marriage.
a resolution could satisfy the activists' call for 'equality' and
'non-discrimination' under the law.
If civil partnerships carried the same rights as civil marriage, though the name
would be different, there would hardly be a reasonable case for the claim of
injustice to gays and lesbians involved in a loving, stable relationship. They
ought to be able to live freely in society as respectable citizens and with the
approval of the law. Furthermore, it
is difficult to see how this legal non-discriminatory protection for same-sex
couples would lead, as some have claimed, to a lessening of respect for marriage
or undermine public morality. Arguably the public interest and the common good
would not thereby be threatened.
Legalising same-sex civil partnerships without any reference to marriage
would seem to be a simpler and a viable alternative to same-sex marriage, but it
is doubtful whether this would be acceptable to gay and lesbian activists. Some
authors make the claim that the fact that most same-sex “marriage” advocates
refuse to accept civil unions and domestic partnership programs under which the
benefits of marriage are extended, but which do not use the label
“marriage”, is clear evidence that most of those seeking legal recognition
of same-sex partnerships on the pretext of gaining civil benefits were in fact
seeking public approval of homosexual conduct historically condemned as immoral.
This view is contentious but needs to be taken seriously and considered in
Extending the Definition of marriage to include Same-Sex Unions
of change do not allege that same sex unions approximate to marriage in the
traditional sense. Rather, they want
marriage to be understood in broad terms as a stable bond between two persons
bound by a faithful and self-giving love, who work together as equals to create
a life together with all its shared joys and burdens and to form an enduring
bond and a social identity. This
broad or generic definition of marriage, according to this approach, would then
have two species: same-sex unions between couples joined by mutual committed and
fruitful (at least for the persons themselves and their outreach to others)
love, and heterosexual conjugal, procreative marriage (marriage in the
traditional sense). This is an enormous step for an understanding of marriage as
it has been long accepted without
question in the western world. Let
us look at this more closely.
marriage in the west may be defined in broad terms as (1) the socially
sanctioned union of man and woman, (2) that reproduces the family. We will
consider these two aspects.
1. Marriage is the state
of being united to a person of the opposite sex as a husband or wife in a
consensual and contractual arrangement recognised by law (Merriam-webster
Dictionary). In Australian law
currently in force, 'Marriage means the union of a man and a woman to the
exclusion of all others, voluntarily entered into for life' (Marriage
Legislation Amendment Act, 2004).
pretty generally accepted understanding of marriage has been influenced by a
number of factors before being enshrined in civil law.
In the West the most important has undoubtedly been the Bible.
In the Bible marriage is ultimately based on the creation stories of
Genesis, wherein God reveals his plans for the human race. 'Yahweh God said:
“It is not good that man should be alone. I will make him a helpmate...”'
(Genesis II, 18ff). 'Male and female he made them. God blessed them, saying to
them, “Be fruitful, multiply...' (Genesis, 1:27-28). In a patriarchal society
like Israel the prime focus in the way marriage was lived was the preservation
of the male's clan. This explains the great value of children, especially sons,
and the disvalue of female sterility. For the prophets of Israel, marriage is so
important in God's plan that it is chosen as a symbol of the
covenant between Yahweh and Israel (Hosea 2, Isaiah 54:4-5, Jeremiah 2:2,
the New Testament Jesus responds to the Pharisees' question about divorce by
recalling the teaching of Genesis. 'Have you not read that the Creator from the
beginning made them male and female
and that he said: This is why a man must
leave father and mother, and cling to his wife, and that the two become one
body?' He concludes with an uncompromising affirmation of the indissolubility
of marriage, 'They are no longer two, therefore, but one body. So then, what God
has united, man must not divide' (Matt 19:5-6).
the Old Testament, the Pauline writings see marriage as Jesus understands it to
be so important that it is a fitting symbol of the union of Christ with his
Church (Ephesians 5:21-33).
was further assured of its understanding of marriage as between a man and a
woman by what it saw as the frequent condemnation in the Bible of homosexual
actions (See for example Leviticus 1+8:22; 20:13, Genesis 19:4-14. Romans
1:26ff; 1Corinthians 6:9ff). Today among contemporary Protestant biblical
scholars there is a lively debate over the meaning of these texts. For instance,
Robert Gagnon contends that the Bible unequivocally defines same-sex intercourse
as sin and that there are no valid hermeneutical arguments to interpret the
texts in any other way. Others disagree and argue that it is all a matter of
interpretation. Among Catholic biblical experts, Richard Hays comes to much the
same conclusion as Gagnon, but others tend to interpret the texts through the
prism of their own interpretative values (Keenan 2003, 127).
2. The second
dimension in the traditional definition of marriage relates to the link
between marriage and the family. There is no doubt that same-sex persons can
come to love one another in a self-giving, committed and lasting relationship.
The issue is: if it can be
established that marriage involves an inherent link to children, can the notion
of marriage be extended to embrace such relationships?
seeking change argue that there is no inherent and necessary connection between
marriage and children. If that were the case then those who do not want or who
cannot have children would not be able to marry. Yet such couples have never
been prevented from marrying despite infertility or any other condition. That
being so, why should gays and lesbians be considered unable to get married.
Inability to have children can be no obstacle.
this argument that, since infertile couples can marry, marriage is not
intrinsically connected to procreation, can be shown not to hold water. In the
first place, when a married couple express their love in marital intercourse
they perform a biological action (mating) which makes them 'one flesh', one
body, a biological unity (literally one organism). It is a specific action, the
only kind of action that can create a child as the fruit of their mutual love.
Conjugal intercourse between a man and a woman establishes a real biological
unity of a unique kind. This is not to say that their action is purely
biological. As persons, their action is an interpersonal act; it is one integral
act, though composed of different elements: physical, emotional, spiritual. But
as a specific kind of biological communion their sexual expression of love makes
them one single procreative principle and establishes the kind of multi-tiered
relationship – biological, emotional, spiritual - they consented to in getting
married. As the tradition puts it,
the fundamental, though not exclusive, purpose of marriage is the procreation
and education of children (e.g., Aquinas, passim).
to what same-sex activists often allege, the sexual-biological unity that forms
the basis of marriage is not a mere means to the extrinsic end of procreation.
It is rather an end in itself. 'The union of the spouses to one another in a
relationship whose distinctive structure is what it is because of its aptness
for procreation and the rearing of children is no mere instrumental good, but
rather is good in itself - an intrinsic fulfillment of those united in the
relationship.' Nor is marriage a
sexual relationship that is equivalent to any other sexual relationship having
no inherent connection to procreation. When a man and a woman marry they commit
themselves to each other in the kind of community that would be fulfilled by
procreating and educating children. In this way 'the biological unity
established and renewed in sexual intercourse is the beginning or embodiment of
that community we know as marriage' (Lee,
George and Bradley 2011, 3).
every conjugal act leads to the procreation of a child; in fact most do not. But
the action that is proper to marriage, conjugal intercourse, is open to all
married men and women. That is why even married couples who for whatever reason
cannot have children can still fulfil the meaning and purpose of marriage. They
can form together a biological unit , that is, they can perform the type of act
that can result in procreation, even though conditions of procreation outside
their control cannot or in fact do not occur. And secondly, they can form the
kind of multi-layered community – bodily, emotional and spiritual – that
would be naturally fulfilled by the bearing and raising of children – even
though in their case this does not or cannot happen.
Secondly, this conjugal community is extended and brought naturally to
fulfilment by children. The child is not a mere product, but rather the
expression and ultimate crown of the mutual love of the spouses, who now become
parents and collaborate in raising the child. Parenthood is not, however, an
altogether distinct relationship. Rather parenthood naturally fulfils and
enriches the relationship already existing in the community of marriage. The one
relationship flows naturally out of the other (Lee, George and Bradley 2011, 3).
From the child's point of view, it can be argued that children have an inherent
need, and indeed a right, to be reared by the parents who gave them life. They
need a mother and a father in different ways at different times of their lives,
and not only as role models. The breakdown of many marriages in modern society
and the unfortunate effects of this upon children, who are thereby sadly
deprived of the ministration of a father and a mother, cannot rightly be used as
an argument to justify same-sex parenting, for this would inflict the same
deprivation upon the child, who would have no possibility of being reared by
both a father and a mother.
No matter how committed they are to one another emotionally and even
spiritually, same-sex couples simply cannot achieve the type of biological union
that is the foundation of marriage and that would naturally be completed by the
bearing and rearing of children. Homosexual
intimacies, however mutually satisfying they may be for them, may be expressive
of their love and may nourish their love but they cannot make them biologically
one procreative principle and hence cannot form the basis of a relationship
embracing all levels of their personality that is the prerogative of marriage.
Same-sex couples can make arrangements for one of them to bear a child by IVF or
surrogacy and they can commit to working together to rear the child, but this is
parenthood in a very loose sense and it bears no intrinsic link to procreation.
Nor can it satisfy the needs and the rights of children. Such a relationship
cannot rightly be called marriage. In reaching this conclusion, there is no
unjust discrimination against them, because same-sex couples are unable to form
together the kind of community that marriage is. They have no right to marriage,
because there is no object for such a right.
Here the objective sought evaporates in the very attempt to attain it.
foregoing arguments lead to the conclusion that the Federal Government ought not
to change the federal law regarding marriage as it currently stands. It has a
grave moral obligation to safeguard the social institution of marriage as a
community of a man and a woman inherently oriented to procreation and education
of children. This is a requirement of truth and the common good of the state.
Brennan SJ, 'In defence of same-sex unions', eurekastreet.com.au,
F. Keenan SJ, 'The Open Debate: Moral Theology and the Lives of Gay and Lesbian
Persons', Theological Studies 64
Lee, Robert P. George and Gerard V. Bradley, 'Marriage and Procreation: The
Intrinsic Connection', Public Discourse:
Ethics, Law and the Common Good, http://www.thepublicdiscourse.com/2011/03/2638?
St. Thomas Aquinas, Summa Theologiae, especially I-II, Question 94 and II-II, Question 154
Brian Lewis was formerly a lecturer in moral theology. Now retired,
he maintains an interest in writing on ethical issues of contemporary
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