Once Sara and I decided to get married, I resolved to do something about the privileged position from which we were able to make such a decision. Amongst other things, I vowed to write a letter to my Federal MP, the Attorney-General and the Prime Minister each and every year on my wedding anniversary.
I had actually written one that I intended to send on the day of my marriage. It’s main theme was that government could not legislate the definition of marriage because it could love eluded legal definition. I recently discovered as I moved house that I never posted the letter. It was stamped and then stuffed in my drawer to only find the insides of a notebook, rather than the letterbox and the hands of aforementioned politicians. I don’t regret that actually. It was a little too soppy for what I want to do with these letters. As much as I want to add personal narrative, I also want to put forward a universalised argument – in other words, to outline the reasons why the legal recognition of same-sex couples is good for everyone, even if they don’t agree with homosexuality.
Lets face it, everyone deserves to go through the hell of weddings and marriage!
So, here is a draft of my letter for this year, including some of the good bits from last year’s letter. I’m probably not going to send it for a week, so feel free to offer advice.
I write to you today to express my concerns regarding the legal recognition of same-sex relationships in Australia. I have chosen to write this letter as someone who is married and found it ethically and morally difficult to do so under the existing legal regime. I don’t write letters to politicians. So forgive me if my correspondence does not properly adhere to convention. Having said that, I write to you personally, as a concerned citizen, about the lack of progress on this issue.
I recently celebrated the first anniversary of marriage to my wonderful wife on the 24th of January. I say this because until the laws in Australia are changed, I will be spending some part of my wedding anniversary each and every year writing to you until Australian laws are changed.
There are many reasonable arguments out there both for and against changing our laws regarding the recognition of same-sex relationships. Most of the justifications should be heard and responded to because they do take other perspectives into account. But the fact an argument is reasonable does not make it right. I would like to share a personal story of my own wedding as a way to show why the general thrust of arguments favouring the legal recognition of same-sex couples are not only reasonable, but the right thing to do.
Personally, I’ve never wanted to be married – it has never occurred to me as an option. You don’t have to be married to be in love and to start a family of your own. I have always had two justifications for feeling this way: marriage, as a cultural institution, was not meaningful to me and marriage, as a legal institution, was too discriminatory. Culturally, marriage had always appeared to me as something couples just did because they had to – as a rite of passage from one stage of life into the next. This irked me because, in principle, modern marriage was supposed to be chosen and voluntary. But this only seemed to apply to the choice of partner rather than the choice of whether or not to marry. In all this, modern marriage still seemed to carry the cultural aura of feudal relations within it. Coupled with the fact I have always felt that the Marriage Act discriminates against same-sex couples and the reasons, in my own mind, for not getting married became overwhelming. And so, for the longest part of my adult life, I turned my back on marriage.
However, I never expected every other Australian citizen to do the same. We live in a democracy and part of our obligations as democratic citizens is to find reasons to accept things that we disagree with. It was easy for me to accept different understandings of marriage in the cultural sense. Even though Western culture makes of marriage a virtuous option for formalising a romantic, committed relationship between two people, it still remains only one option within our society. Especially since love increasingly became the essential ingredient for marriage coming into the 20th century, marriage has lost its obligatory character in Western culture. One marries because one wants to and out of love. But, marriage has retained a virtuous status as the best, but not only way, of formalising a committed relationship. I can accept that my own interpretation of marriage does not sit with the dominant view, so long as the dominant view is not imposed upon me in terms of how I choose to live my life. And it doesn’t.
Despite this, I came to realise that my comfortable place within Australian society and Western culture is a privilege. A privilege that is not afforded to everyone. To be specific, it is a heterosexual privilege. As a heterosexual male, I have the choice to shun marriage. If I were a homosexual male, I would not. This realisation bothered me at the time, as it does today. Both my ethical and moral disagreements came from a privileged position, because the law seems to believe that I have a greater or better capacity than a homosexual individual to make ethical and moral decisions about whether or not to marry.
Worse still, the arguments against giving homosexual individuals the capacity within the law to make this same decision are not for the greater good, but appear as self-serving, self-fulfilling prophecies. Take for example a prominent argument against the legal recognition of same-sex relationships: heterosexual couples make better parents. This is definitely true if we take into account the levels of homophobic attitudes in a society – where they are relatively high, so are the domestic problems within same-sex relationships. None of the evidence convincingly points to inherent problems within homosexuality as providing a causal basis for the success or otherwise of families. What the evidence does seem to show is that homophobia can and does hinder the possibilities for the full flourishing of homosexual relationships. And if we recognise love to be the most important ingredient in marriage and, therefore, families, then continued homophobia, it could be argued, plays a larger role in the success or otherwise of families created by same-sex couples. My point is that it is not homosexuality that causes problems in our society, but the continued stigmatisation of it.
But, why should the potential success of families be a determining factor for marriage? Disregard the fact, for a moment, that some homosexual parents are ‘better’ (whatever, that might mean) than some heterosexual parents and that many families are created outside of marriage. If we accept the arguments put forward by opponents of same-sex parentage, how far are we going to go to guarantee the success of marriage and family by means external to the relationship between the parents and the children themselves? Do we stop the disabled from marrying and forming families if it means the possibility of failure? What about groups seen to have high rates of domestic violence? Maybe only working couples in a comfortable financial position should be allowed to marry? Maybe only religious people? Logically extended, the arguments of the opponents of the legal recognition of same-sex couples could have serious consequences for everyone if they are deemed both reasonable and right.
It appears that ‘evidence’ of this kind should not be used as a proxy for our own capacity to make informed decisions about what we want to achieve. In other words, what is the case shouldn’t be used to suggest or replace our democratic deliberations and determinations about what ought to be the case. More broadly speaking, I can’t help but feel that all this emphasis on evidence-based policy in the area of social and cultural issues is diminishing our civic skills within a democratic community, where having a moral compass instead of a mathematical one should be more important. But I digress.
It is hard to argue against there being a range of material and immaterial conditions that statistically lead to ‘better’ marriages and families. This is not a good enough reason to legally proscribe marriages and families formed in the absence of such conditions. So, why is this being allowed for same-sex couples and not anyone else?
On a broader level, the lack of recognition for same-sex couples undermines the legitimacy of our legal regime. Equality before the law, does not have to mean the same laws for everyone, but can also mean legal equivalence. Positive discrimination in the law contains a host of examples demonstrating the success of legal equivalence. But the various legal mechanisms at the state and Commonwealth levels to provide legal protection for same-sex couples and individuals does not amount to equality before the law or legal equivalence. To some degree, and relally only since the Same-Sex Entitlements Enquiry in 2007, it could be said that homosexual individuals posses the same democratic entitlements and obligations as others, except for the ability to have their committed relationships to a significant other legally recognised. But, one technical point of contention remains: that the Marriage Act denies same-sex couples full legal equivalence.
Technicalities aside, why should we care about the Marriage Act if discrimination has been abolished in all other areas? I like to think that our laws are both expressive and regulative. In a democratic sense, our laws express the things we value. Laws do this, specifically, in their regulative function: they enable and constrain behaviour according to what we value. The legal act of marriage does this in a very special way. When my wife and I had decided that we would get married, it was based upon the fact that we wanted others involved in celebrating our love for each other. In fact, the law was sanctioning our love as well as providing us with the opportunity to celebrate this with people who were important in our lives. It was a special day because, as much as the love my wife and I share is ours and ours only, I could see in the people present at our wedding a recognition of our love beyond merely the shape it was taking in marriage. In the deepest sense, I could see in my friends and family that they could see my wife through my eyes and why I loved her. And only then did it occur to me what was so important about the day: this sort of recognition from the people we loved provided the foundation of our own love. I began to think of the many minute and unremarkable ways my friends and family have provided the lubricant and pillars of support for me in my own pursuits as well as those that have been shared with my wife. By the time it was my turn to give a speech at the reception, I was physically overwhelmed with gratitude. I couldn’t stop thanking the people without whom my wife and I would not have been able to share our love for each other.
But this is not the type of recognition I’m asking for within our laws. In fact, I think it would be wrong for our laws to only have this type of recognition in mind for it would be too prescriptive in how a couple should love each other and how people should respond to that. The type of recognition I felt – the sincerity, care and love – was enabled by the Marriage Act. Sure, I didn’t have to get married to have received such recognition – commitment ceremonies are increasingly popular today. But, in getting married that day, I, as a citizen of Australia, enacted a law in that instant. Not in the sense of establishing a law, but practicing it. From that moment on, whether or not someone knows me or my wife, whether or not they were intimately familiar with the character of our relationship, every other citizen in Australia was from that moment on compelled to recognise what my wife and I has established as a committed relationship based in love. It was a powerful feeling.
More importantly, I realised that I had taken part in the positive function of law: the reproduction of things we all value and want to protect and guarantee for future generations. And that thing, on the day of my marriage, was love. Not my particular version of it, because this is only available to my wife and myself. But, the abstract definition of love we all share: the mutuality, reciprocity, care and commitment for that one significant other. And the Marriage Act says this much already. Here is the particular way sections 45 and 46 of the Marriage Act 1961 was rendered in our vows:
I, Elizabeth Trevan, a civil celebrant, am duly authorised by the law to solemnize marriages according to the laws of Australia. Before you Sara and you Bernard are joined together in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn, the serious and the binding nature of the relationship into which you are now about to enter. Marriage, according to law in Australia, is the union of a man to a woman and a woman to a man; it is made in the deepest sense to the exclusion of all others, voluntarily entered into for life.
Not only were my wife and I formally embarking on reproducing a societal value that day, but every Australian citizen was, from then on, formally obliged to recognize our small contribution to making a decent society. The law does have this sort of power in a democracy and it remains one of the most compelling and universal reasons for why the law should continue to be used to formalise and protect love relationships.
As joyous as this occasion was, both as a private individual and a public citizen, it was marred by the inequity of what I had also done: I was asking homosexual couples to recognize my relationship without having to reciprocate. There’s nothing in the Marriage Act that is unavailable to same-sex couples, in that they are more than capable of getting married and being married in the way prescribed by the law. Except for the fact that the definition of marriage excludes them from the opportunity. And to think this had only become so with the Marriage Amendement Act 2004. The irony of this for opponents of the legal recognition of same-sex couples: that a law has to be passed in 2004 to reflect what is supposed to have always been the case. In any case, the fact that I can seek and gain legal and social recognition from others for loving my wife, without having to reciprocate to everyone makes me ill at ease. And, I won’t rest until the laws at the source of this discomfort are changed.
Nevertheless, I think it’s understandable that people might want to argue that marriage is and should stay specifically heterosexual given its history. This, however, should not deny the equivalent legal recognition of same-sex relationships. Most European countries have civil union laws that are legally equivalent to marriage. This way the law reflects and retains the cultural heritage of marriage and the cultural shift where love as the basis of committed relationships is ignorant of sexual orientation. I don’t believe marriage has to be the way in which committed love relationships are formalised. But, we’re not even having a debate about civil unions. And it seems increasingly unlikely since the government walked away from the National relationships registry proposal. I strongly urge you: please start the debate on civil unions. Relationship registries are patronising and condescending and such a weak position continues to provide cover for the more prejudicial attitudes and arguments against the legal recognition of same-sex relationships.
My point is: the law and the bureaucratic apparatus of government should not be substitutes for real democracy. Our laws and policies should not impede ways of life that remain within our sharable definitions of what constitutes a decent society. This does not mean that we can’t disagree and debate what different ways of life mean for our shared existence. And sometimes the social sanctions that emerge from democratic deliberations between citizens hold more power than legal sanctions. At the moment, though, our laws are legitimising un-democratic and unjust perspectives on homosexuality and same-sex relationships. Our laws are perpetuating a stigmatisation that has no basis. This is unacceptable for the legitimacy of our legal system and the liberal democratic social order it seeks to protect.
So, I stand here, from within my heterosexuality and from within the institution of marriage – a position of privilege – to say that arguments against the legal recognition of same-sex relationships are wrong and indefensible. I’m looking forward to your reply. I certainly hope it contains, at the very least, a response to my points. I am certainly eager to know what the government has planned beyond the relationship registries that were proposed.
Before I leave, I would like to express in advance my appreciation for your consideration of my correspondence. If I don’t hear from you, rest assured you will hear again from me in one year’s time.
Mostly because I don’t hop into my Australia Day uniform – the Australian flag. I was never one for uniforms. You might say I’m paranoid and being irrational – that I am part of the club. Some might even say I perhaps don’t deserve membership for even thinking I’m not part of the club. None of this alleviates the conditions that give rise to this sense of discomfort. There are the well-worn criticisms of Australia Day I mentioned earlier – it’s chauvinistic patriotism, the disguise it provides for racism, ethnocentrism or blind nationalism. None of these hold up empirically as solidly as their critiques believe – it’s hard to prove the structural or even prominent presence of such vices. But they don’t need to be in order to have their desired effect. The new uniform of Australia Day acts as a palimpsest for all these vices – real and imagined. The new Australia Day uniform and ebullient celebrations in which they are witnessed are too easily aligned with the vices.
