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Against marriage reform

By Max Atkinson - posted Thursday, 21 January 2016

Although expensive, it is now clear the same-sex marriage debate will be resolved by a national vote at or after the next election. The polls, together with experience in the UK, France, Ireland, Norway, Belgium, New Zealand and Canada, suggest the law will change. There are, however, many people, including those with religious convictions, who are undecided or strongly oppose reform.

The debate has seen a good deal of confusion, much of it due to a failure to make two connected distinctions. The first is the need to distinguish religious reasons and doctrines shared by some protagonists, from arguments based on ordinary, everyday values such as fairness, humanity and respect for others, which transcend religious differences. The second is a failure to distinguish religious marriage, that is, marriage in the eyes of God - which is a sacrament defined by church authorities - from civil or official marriage, which is defined by the state. In practice they overlap, since a marriage valid in canon law must also meet the conditions prescribed by state law.

Dr. Michael Jensen, rector at St Mark's Anglican Church, Darling Point, author of a book on religious belief, and online critic of same-sex marriage, is aware of these distinctions and seeks to argue from more universal premises here. He begins well, reminding readers that reformers have no right to assume opponents are bigoted, and the mere fact that most people support same-sex marriage is not a reason to change the law, citing surveys which show most people also support the death penalty.


In reminding us that politicians 'should exercise leadership, not follow opinion', he helps counter a popular view that majority opinion is a relevant moral test, not just of who has the right to make the laws, but what kind of laws they are entitled to make.

He offers another insight in a brief discussion of equality and discrimination:

… it is the duty of the law to judiciously discriminate and to appropriately recognise difference with, at times, unequal treatment of things that are not the same. It isn't automatically wrong to discriminate per se.

There may, as he says, be reason to discriminate, as when those who break the law are deprived of their freedom. So the important question is whether unequal treatment is unfair, and the test of fairness must keep in mind the insult which wrongful discrimination entails. Accordingly, we need to ask, not whether those who complain are treated equally but whether they are treated 'as equals' - that is - with equal respect as members of the same political community.

The point was illustrated in the 1954 US Supreme Court decision in Brown v Board of Education, which found that 'equal but separate' public schools were unconstitutional. The evidence was compelling that they worked to institutionalise a sense of inferiority in black students which prejudiced their education and future prospects, depriving them of the fair treatment implicit in the right to 'equal protection of the law'.

Such introductory remarks help clear the way for Dr. Jensen's aim, which is to defend traditional marriage on grounds which do not rely on specifically religious doctrines, and should therefore appeal to any rational, fair-minded, person. The core of his argument is that supporters of same-sex marriage fail to see the merit of the 'conservative' position, which he describes as follows:


As we now understand it, marriage is not merely the expression of a love people have for each other. It is, or is intended as, a life-long union between two people who exemplify the biological duality of the human race, with the openness to welcoming children into the world. Even when children do not arrive, the differentiated twoness of marriage indicates its inherent structure ….(this) is the meaning of marriage that emerges from all human cultures as they reflect on and experience what it is to be male and female.

Now, I didn't pluck this definition from the sky, nor is it simply a piece of religious teaching. It is the meaning of marriage that emerges from all human cultures as they reflect on and experience what it is to be male and female.

As a statement of fact this may be true - it might be the case that most people, in most nations, have looked on marriage as exemplifying the biological difference between men and women, and as a precursor to having children. But the debate is about what the law ought to be, so it cannot be resolved by pointing to history; indeed, it has already been agreed that the fact that most people already have an opinion is beside the point. What is needed is a defence of their opinion which does not rest on religious doctrines.

Dr. Jensen thinks he has found this defence in a conservative view of history but, like so many political conservatives, forgets that it is at best a cautionary principle - a counsel of prudence reflecting a common sense view that long established institutions are likely to have benefits which are not obvious to a casual observer. It is not a moralvalue. Accordingly, if a law excluding same-sex marriage is discriminatory, it is no defence to insist it has always been thus.

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About the Author

Max Atkinson is a former senior lecturer of the Law School, University of Tasmania, with Interests in legal and moral philosophy, especially issues to do with rights, values, justice and punishment. He is an occasional contributor to the Tasmanian Times.

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