Same Sex (Same Old) Marriage

Australian politics is abuzz with debate on whether to redefine marriage to allow the union of two people regardless of their sex. Adelaide Law School’s Kellie Toole takes on the legal institution of marriage, asking not whether same-sex marriage should be legalised in Australia, but whether marriage should be de-legalised.

New Zealand, England and Wales joining the list of countries to redefine marriage as the legal union of two people, rather than the legal union of a man and a woman, has fuelled activism in Australia for legalisation of same sex marriage here.

The current debate on marriage, both within Australia and internationally, focuses exclusively on the pros and cons of the extension of the privilege of the institution of marriage to same sex couples. Defenders of the traditional definition of marriage as between a man and a woman, pit against those who argue that gay people will not be equal before the law until they have equal rights to marriage.

However, surely in a modern liberal democracy the question of ‘should gay couples be able to legally marry?’ is less pertinent than the question ‘should heterosexual couples be able to legally marry?’

Reframing the debate on marriage to consider whether any couples should be able to legally marry, focuses attention on whether the modern secular state should be in the business of labeling and regulating intimate relationships between adults of any sex or sexual orientation.

In Australia, the significant material benefits and legal protections associated with marriage have been largely extended to same sex couples through changes to Federal laws affecting taxation, superannuation, social security, family assistance, the Pharmaceutical Benefits Scheme, Medicare, aged care, bereavement benefits, veterans’ entitlements, immigration, citizenship, child support, and family law.

The intangible benefit that continues to elude same sex partnerships is the privileged social status associated with the legal institution of marriage. The cultural and religious traditions historically associated with marriage give it a special public status that recognises it as higher than, or superior to, other forms of personal relationship. This special status can only be conferred on couples through the legal recognition of their relationship by the state.

Both the opponents and supporters of same sex marriage support the state continuing to exercise its authority to sanction a hierarchy of personal relationships, and the state itself vehemently defends that role. Its investment in defining and regulating the legal institution of marriage is illustrated most effectively not by reference to same sex marriage, but rather to the crime of bigamy.

Bigamy attracts a penalty of up to 10 years imprisonment. Second and subsequent marriages that occur without the legal termination of the first marriage are criminal offences, even where they are undertaken with the consent of all parties to the marriages, and where no legal recognition or entitlements are sought for the later marriages.

There are no criminal provisions relating to multiple non-marital intimate relationships. Criminalisation and stigmatisation applies exclusively where certain formalities are undertaken, and the term ‘marriage’ is applied to more than one concurrent intimate relationship.

However, the regulation of intimate relationships by the state, and the conferral of social status on the basis of relationship status, is in profound conflict with the philosophy of the liberal democracy. There is no liberal justification for the involvement of the state in marriage, and obvious liberal restrictions on it.

Liberalism is designed to secure the political conditions necessary for the exercise of personal freedoms, including maximum freedom in private life. Its key principles are liberty, through individual rights and limited government; and equality, for individuals before the law and between citizens at law.

The principle of equality is invoked in the name of same sex marriage without serious consideration being given to whether marriage as an institution is compatible with the principles of liberty and equality.

The institution of marriage is at odds with the liberal principle of liberty. The regulation of marriage draws the state into the realm of family and sexuality, which, by the definition of the liberal state, are private matters that deserve protection from the state not regulation by it.

Marriage also offends the principle against equality. It will continue to do so, in only a slightly reduced way, if it is extended to same sex couples. Marriage confers privileged social status and material benefits onto people who have the will and the opportunity to organise their personal lives according to a professed, monogamous intimate relationship for life, and so discriminates against people who organise their private affairs in any other manner.

The social status of marriage was conferred at a time when its importance as the foundation for social stability was taken so seriously that its termination was almost impossible and adultery was a crime. Its privileged status was earned through compliance with those rigid conditions. However, the social status has become an anachronism where divorce is readily available and socially accepted, and adultery carries no legal penalty and limited social stigma.

Marriage needs to be abolished as a legal institution.

An intimate personal relationship could still be called marriage, and be formalised in any public manner chosen by those involved. If civil society and religious institutions continue to admire and encourage ‘marriage’, then those relationships would still attract social approval. The beginning, middle and end of such relationships could be regulated contractually as a matter of private law, and according to any terms and conditions agreed by the parties to the marriage. However, the intimate relationship per se would lack a formal legal status, and the state would not be one of the bodies that conferred a privileged social status or any other tangible or intangible benefits on one group of citizens based on a certain type, of often temporary, intimate relationship.

It is now the time to end, not extend, the privilege of the legal institution of marriage in order to recognise true equality by abolishing the privilege of certain citizens on the basis of relationship status.

Kellie Toole is an Associate Lecturer at the Adelaide Law School, University of Adelaide.

This post first appeared on Online Opinion.

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