I think I am in favour of gay marriage, on balance, with some reservations. I would not wave placards in the street, or even change my vote on this issue.
Yet it seems that this moderate position is not considered ethical. There is almost zero tolerance among some people for anything other than strident uncritical support for gay marriage. No caveats, qualifications or maybes are allowed. Never mind that twenty years ago many of the same people would have smirked at the very notion.
Remember the Jason Akermanis saga four years ago? A reasonably thoughtful article raised the ire of the righteous for advising gay footballers to stay stumm. Yes, there are things you can take exception to in his article, but there is nothing hateful in it, and he is even self reflective when he says
What I should have done was to sit down and talk with him in an attempt to understand his life
His comments unleashed the lynch mob and arguably led to the early end of his football career. This ensures that real homophobes will keep their views to themselves … and their team mates.
Support for gay marriage is also apparently obligatory for anyone who believes in equal opportunity and human rights. In 2012, Professor Kuruvilla George was forced to resign from the Victorian Equal Opportunity and Human Rights Commission within 24 hours of it emerging that he had signed a Senate inquiry submission arguing against gay marriage. Seems the right to free speech is not a core issue for the VEOHRC.
There is a lack of tenability between his position on same sex marriage equality and those obligations and duties (of the Commission).
Really? Exclusion of same sex partners from marriage was and is the current law of the land! It was the policy of then Premier Ted Baillieu whose government oversaw the Commission! Traditional marriage was supported by then Prime Minister Julia Gillard. How can you get fired for being in such illustrious company?
In late 2013 the High Court struck down the ACT gay marriage legislation on technical rather than moral grounds. Surely, their even hearing the case is proof that they are hateful homophobes who are against the notion of equal rights and they should be sacked, right? Or the other possibility is that the argument for gay marriage on the basis of equal rights is bollocks.
Regardless of your ultimate stance on gay marriage, it is important that false arguments do not gain public currency. Once bollocks is woven into the fabric politic, it quickly leads us where we don’t want to go.
The arguments below occurred to me almost immediately that gay marriage first became an issue. I am not the first or only person to air these ideas. They are obvious. Many people have (often crudely and sometimes maliciously) made similar observations quite independently, yet you will never hear these points properly considered in the opinions pages of the Age or discussed on the ABC or articulated on Q&A.
If marriage is a right then it must be granted to polygamists. To artificially limit the definition of marriage to the union of only two people carries no more weight than limiting it to the union of a man and a woman – as the prime minister (both previous and current) is ridiculed for doing. It is arbitrary. In fact, it carries even less weight because there is no biological basis for monogamy.
Moreover, in as much as religions like Mormonism (and to a lesser extent Islam) have allowed it, banning polygamy is then an imposition of traditional Christian values on those of other faiths. And equal treatment of people of different religions is certainly an existing and widely supported principle of liberal democracies.
For these reasons, I believe that the equality argument, if you are going to rely on it, is stronger for polygamy than for gay marriage.
Keep in mind though that I think the equality argument itself is bollocks. Nor do I have any fears that polygamy will suddenly be on the political agenda if we allow gay marriage, though it should be if the equality argument was the basis and we are going to be consistent. So this is not a fear-mongering slippery slope argument. It is a “your argument leads us to bollocks so it must be bollocks” argument.
Incest (between consenting adults)
But it gets worse. Even marriage between siblings or between parents and off-spring (as low demand as there is for it) becomes necessary if we fall for the argument of equality and human rights. Why should loving siblings who want to marry be denied this “equal right”?
The usual retort is that the equality argument cannot apply because procreation by close relatives involves genetic incompatibility. But not allowing siblings to marry does not stop them procreating. More important though, if genetic compatibility is a pre-requisite to marry and reproduce then those who carry the gene for cystic fibrosis, haemophilia or thallassemia must surely be banned from marriage. When haemophiliacs marry, 100% of the male offspring will suffer from the disease and at least 50% of the daughters will be carriers. And while such couples are offered genetic counseling they are legally entitled to marry.
Our society steadfastly refuses to legislate against marriage, or other legal contracts, on the basis of even extreme and specific genetic risk. One can hardly then ban siblings marrying on the basis of very slightly elevated chances of unspecified genetic disorders. And what about infertile siblings for whom there would be no such risk? Is everybody comfortable with invoking the marriage equality principle for sterile siblings? How about your post menopausal mum?
No. The reason siblings (or parents and children) may not marry has nothing to do with genetics though this may be part of the historical source. It has everything to do with upholding tradition notions of family structures, religious teachings, and the simple “yuk” factor. There is no logical argument against sibling marriage that I am aware of that does not lead to consequences that both I, and the gay marriage lobby, would not accept.
Absent a genetic argument then, there seems no reason why the equal rights principle that is used to justify gay marriage would not also imply that siblings may marry. Not, I stress again, that I am worried that sibling marriage is on anyone’s agenda, but one never knows where legal precedent might lead us.
It is idiotic to even raise this. Animals cannot enter into legal contracts at all. Cory Bernardi is a malicious crank who is playing to an audience of religious zealots. Let’s move on then.
International human rights
Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
Remember that this declaration was ratified in 1948 when homosexual activity itself was illegal in most countries including Australia. What was in the minds of the drafters and UN delegates at the time?
The 48 countries voting in favour included Afghanistan, Iran and Pakistan. Do we really think that the intention of article 16.1 was to enshrine gay marriage as a universal right and that these three countries signed up to the notion? Were the first three words “Men and women” deliberately chosen, as the gay marriage lobby would imply, to allow for the possibility that men may marry men? Or were they chosen assuming that men would marry women? I think the question answers itself.
And again, if you are going to interpret section 16.1 literally, don’t we end up with polygamy again? After all, “men and women” is in the plural! Monogamy could have been signaled by starting with the phrase “A man and a woman.”
If the drafters were trying to establish the groundwork for gay marriage in 1948 then they would have begun section 16.1 with “Any two adults.” End of story.
The UN rights argument is legal trickery at its worst, trying to force us to a predetermined outcome through word play rather than convince us by argument. Indeed, the way some people appeal to UN bills and conventions reminds me of the way religious zealots appeal (selectively) to the bible or papal decree to convince us that homosexuality is a sin.
What is marriage?
The equal right to marriage principle is pure bollocks. And it is not harmless bollocks because it imposes ridiculous consequences that we recognise are not moral necessities.
I think that the source of the nonsense is that marriage is not a right at all, primarily because a marriage contract is not necessary to be a couple. It is entirely optional. De-facto relationships are virtually identical in law and the marriage contract has few binding implications, apart from limiting your ability to marry others. So it is a legal obligation rather than a right. Those who are not married do not suffer any legal disadvantage (Ok, there are a couple of things still to tighten up here which should be fixed). So marriage not being a right, applying the equal rights principle to gay marriage or indeed polygamy is a non-sequitur.
Now if marriage is not a right, not an obligation, what is it in 2015?
The marriage vows are a personal but non-binding promise. You can make them without legal permission and you can break them just as easily. The marriage ceremony is a celebration of a particular relationship which again does not require state sanction. Your family and friends do not need legal license to come to the reception.
So the marriage contract that so many are demanding as a right is actually an essentially empty legal document, an unnecessary state addition to personal vows and community ceremony. It’s not a right – it’s a rite. It is a symbolic formal public endorsement of a relationship, in the abstract, as an ideal. Last time I checked, endorsement of anything was not a moral principle. Only tolerance is.
The Age, who have advocated for gay marriage quite shamelessly, now seem to have come to a different form of reasoning:
The state should not be the ultimate arbiter of who consenting adults choose to marry.
So having slammed politicians for not changing the law, it is apparently now not even something the state should have an interest in. Yet the marriage contract is something bestowed by the state. Oxymoron from beginning to end. But there’s more. Where does the state-should-get-out-of-it principle leave us on polygamy and incest? Oh dear. Seems the Age editors didn’t think this one through but were just enjoying the sound of their own moralistic preaching.
How to think about the issue
So where does this leave the issue of gay marriage?
It means that if you support gay marriage you will have to find other reasons. Those reasons are not absolute. Your reasons and views may be valid but others may have a different view and you will not be able to prove they are wrong. This is not a position that outraged lobbyists want to hear.
Support for gay marriage is not an issue of fundamental principle. It is a judgment call, even a symbolic gesture; not an imperative that one can demonstrate; not a moral conclusion that all rational and civilised people must come to.
So in summary
- It is important not to accept the equal rights argument otherwise we are logically bound to reject or accept gay/sibling/polygamous marriage as a bundle.
- Marriage is not a right because it is an optional and essentially empty legal contract. So the principle of equal rights does not apply.
- A view on gay marriage is a view on whether you think our society should endorse, formally ratify and celebrate same sex unions.
Your view will depend on your personal level of comfort with the notion of same sex unions. You will have to balance any personal discomfort that you and others may feel against the sense of acceptance that marriage reform may bring to gay couples. The number of gay couples who would benefit compared to the number of those who would be discomforted is also a consideration. In other words, we are talking some kind of utilitarian calculation, not a categorical imperative.
You will need to go through the same thought processes in assessing polygamy and adult incest. My judgment is that the level of discomfort which I and most people feel about gay unions is mild or absent compared to the relief that large numbers of gay couples would feel at public acceptance.
Whereas, my discomfort levels are much higher for incest and there are very few who want to partner with their parent. Now, if a rational consenting adult actually wants to partner their Dad then I am not going to put them in gaol. But I sure as hell won’t endorse it and buy them a wedding present. And I will treat any claim for marriage equality with the contempt it deserves.
“Marriage equality” is a slogan. Just like “toxic tax based on a lie”, it is designed to shut down discussion. Unfortunately though, if I argue against the erroneous principle of marriage equality publicly, many will brand me a hetero-normative bigot with a hateful hidden agenda.
It is a pity that the shrill moralisers cannot get down off their high horse and simply say that they support gay marriage because it will make more people happy than unhappy – in short that they support it just to be nice. They might find they persuade more people than with their current strategy of ridicule, moral condemnation and forced termination of employment.