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Against marriage reform

By Max Atkinson - posted Thursday, 21 January 2016


This is not, it should also be noted, an argument about the definition of the word, or the proper meaning of the concept, but the assertion of a duty on government to preserve a traditional practice. But it is hard not to see this duty as reflecting a deeply religious view of the world - highlighted by the fact that both Orthodox Judaism and Catholicism oppose contraception. The following passages do nothing to dispel this view.

I prepare many couples for marriage each year. Most of them already cohabit. When I ask them about marriage, they almost always indicate that it is for them the beginning of a new family unit open to welcoming children.

A child is a tangible expression of our sexed twoness.

To remove the sexual specificity from the notion of marriage makes marriage not a realisation of the bodily difference between male and female that protects and dignifies each, but simply a matter of choice.

This is precisely what many pro-revision advocates themselves argue: that a new definition of marriage would establish marriage as a new thing altogether. As Brandeis University's E.J Graff puts it, a change in marriage law would mean that marriage would "ever after stand for sexual choice, for cutting the link between sex and diapers".

Instead of the particular orientation of marriage towards the bearing and nurture of children, we will have a kind of marriage in which the central reality is my emotional choice. It will be the triumph, in the end, of the will.

But the public debate, as noted, is about civil - not religious marriage - and the state has no obvious duty to foster procreation, and no reason to enforce this sectarian idea on citizens. Moreover, and despite a respectful approach, these passages seem gratuitous. The idea that same-sex marriage will mean a triumph of sexual passion, emotional choice and 'the will' over more spiritual values ignores the central fact that it celebrates a loving commitment, meant to be permanent. In the end this exclusion of same-sex couples appears to come down to a belief that non-religious persons cannot truly love another.

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What is, however, a contribution, is Dr. Jensen's sense that the issue of discrimination must be resolved by clarifying the rationaleof officialorcivilmarriage, since this is the only way to decide whether excluding same-sex couples is unfair, not just different, treatment. This is crucial. It explains why civil marriage does not exclude divorced couples whereas Judeo-Christian marriage prohibits divorce and re-marriage (the Anglican Church appears to leave it to the discretion of individual ministers).

If we put these religious ideas to one side and go back to first principles, it is not hard to understand why a state founded on secular values might choose to honour and encourage the commitment which lies at the heart of the exchange of vows central to a civil marriage.

This is, I believe, the case Rodney Croome, a leading reformer, makes. He emphasizes that marriage serves 'traditional family values' here. Precisely what this means is not spelled out but if we agree that the essence of family values lies in an ideal of mutual love and support, to the exclusion of competing relationships, the claim is compelling. Even more so if we believe the state has a duty - arguably a foundation stone of any defensible political theory - to treat all citizens with equal concern and respect.

The commitment to a mutually supportive union, intended to be permanent, is a reason to treat marriage as an institution of unique value - something which any civilized society has reason to celebrate and encourage. But if this is right - if this is the best justification for civil marriage - it is prima facie unfair to exclude gay and divorced couples who make the same commitment.

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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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