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Marriage is a private matter

By David Leyonhjelm - posted Monday, 14 July 2014


Most Australians are horrified when they read stories detailing how, in some countries, parents arrange their children's marriages and then get mighty stroppy when the kids won't play along. The explanation for this is simple: one of the main reasons for our contemporary understanding of marriage is recognition of the importance of love and affection. The modern 'marriage for love' represents a decisive rejection of parental and social control over individual romantic choice.

However, before we Australians start getting too smug about all our marital freedom, we need to remember that, as things stand, we let the government regulate the gender of the person we're supposed to marry. I struggle to see how this is much different from parents calling up a marriage broker and choosing their children's spouses for them.

Sure, arranged marriages may have been the norm in the past, but they're not now, and that's because the definition of marriage has changed. In my view, it's time for parliament to catch up with other changes currently taking place in society. In last December's case overruling the ACT's same sex marriage legislation, the High Court stressed the extent to which 'marriage' in Australia is a term of law, not one of morality or religion. The Court rejected the opportunity to give marriage an originalist interpretation, frozen in time and therefore incapable of reworking by Parliament.

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This is important because those who oppose same-sex marriage often attempt to fix in law a particular definition of marriage, like trapping an insect in amber. That is not, despite popular perceptions to the contrary, how law works. Legal definitions undergo a process of evolution, sometimes rapid, at the hands of the courts or Parliament. Often the two work in concert.

Throughout history, human societies have had every form of marriage imaginable (including same-sex marriage), and a couple have had no conception of it at all. Even within opposite-sex marriage, the definitional differences over time are pervasive. It took until the 20th century for the status of a married woman in developed common law countries to surpass that of a married Roman woman in the first century AD, for example. The historical diversity is staggering and occasionally frightening, because it then leads to angry debates over which sort of marriage is 'best'.

Another important lesson, this time from Roman law, is that marriage is a private matter (it's part of private law, not public law, in civilian countries). The state simply provides a legal framework, particularly in the event of divorce or intestacy. It is difficult to resist the argument that defining the gender of people getting married is intrusive as well as silly and petty. Laws defining marriage in that way are akin to once-common laws that forbade the marriage of Jews and non-Jews, Protestants and Catholics, and blacks and whites.

The simple fact is that Parliament can change the definition of marriage if it wants to; indeed, Parliament (and other authorities) have been changing it for centuries. Importantly, widening the definition to allow marriage equality will do existing forms of marriage no harm, just as no harm was done when Jews could finally marry non-Jews, Protestants could marry Catholics, and blacks could marry whites.

Widening the definition of marriage beyond the union of a man and woman is also necessary now that the High Court has confirmed some people are neither male nor female but of non-specific sex. These people are currently prevented from entering into marriage with anyone.

Of course, while those who have a particular view of marriage should not seek to impose that view on others, neither should it be necessary to approve of other people's marriage choices. Who hasn't met a friend's spouse and thought, 'what does s/he see in him/her?' If we accept the view that marriage is a private matter between consenting adults, the only choice we each need to make is whether to participate and which variety of marriage to embrace. And for those who perform marriages, religious or civil, there should be no obligation to marry those of whom they disapprove.

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It is much better to adopt a deregulatory rather than a regulatory approach, and not just to marriage.

If there are to be 'definitions', let them be drafted widely, facilitating individual choice. Letting the state tell people whom they may or may not marry represents the worst sort of 'minding other people's business'; if parents are not supposed to regulate their children's marriages, then it seems perverse to let the government do it instead.

Persuading Parliament to deregulate marriage is something I intend to pursue.

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This article was first published in the Australian Financial Review.



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About the Author

David Leyonhjelm is the Liberal Democrat Senator for NSW.

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