What harm would same-sex marriage do?

Marriages are no longer arranged, between families; mutual consent is all that's required. If gay couples want to marry and declare a lifelong commitment, to make their love and mutual support public, what harm can there be in that? Far better to have a publicly declared commitment than an unstable sexual relationship lacking any legally binding and reciprocal responsibilities and social obligations.

In Australia, we have already recognized that 'de facto' couples are virtually the same as legally married couples: they have equal rights to shared property, finances, superannuation. Their children (whether natural, step or adopted) have rights of care from both de facto parents in the same way as do children of married parents, and those parents have a shared responsibility to care for them after separation. It is ironic that the law recognizes this more unstable form of relationship but denies recognition to same-sex couples who want to take on the legal obligations of formal marriage. Significantly, in recognizing the social reality of couples 'living together', the law insists on their responsibility to children and on the economic equality of the partners.

There is no reason why this should not hold with homosexual couples, but the law currently does not recognize the rights of gay partners, or the rights of children, who may be born of one natural partner, with a donor parent, or even a surrogate parent, in the same way as married couples can become parents through adoption, surrogacy or in vitro fertilization. Case after case can be found of lesbian couples agreeing to one partner conceiving, having a child, then breaking up and the 'birth mother' denying the other 'parent' access to their mutually agreed-upon child. Neither married nor de facto couples can get away with that.

Being a parent is not just a biological fact; it is a social status which carries responsibilities to the child. There have been traditional societies where several 'visiting uncles' have sex with a woman who conceives; then one visiting male is nominated as the social 'father', regardless of whether genetics would prove him to be the biological sire, and he carries that responsibility to help raise the child for the rest of its life. That form of social parenting is, in our society, made 'legal' parenting where a child is adopted or artificially engendered, and any child whose family is so dysfunctional they cannot act as responsible parents is made a ward of the State as the 'legal parent'. While we might argue that no adult has the 'right' to become a parent (a notion that leads to anguish when they cannot conceive), every child born through whatever technique, has the 'right' to have two parents – we designate two parents as responsible for each child's upbringing. That is why it is of more import to resist single-motherhood, or single-person adoption than it is to resist homosexual adoption, same-sex marriage or mutually-agreed conception.

So the remaining objection to same-sex marriage is religious and moral. Given that church and state are supposedly separate in a secular democracy, to continue insisting on a religiously-derived definition of marriage is an historical anomaly. The law long ago took control of the marriage contract away from the Church, but it left intact the notion that only a man and a woman could legally be married. Legislation should keep up with changing social norms. In Australia, we have legislation preventing discrimination on grounds of sexuality, yet this is a clear case of sexual discrimination. Social norms round sexuality are much more fluid and despite some continuing homophobia there is widespread acceptance that sexual preference is no-one else's business. Well over half the population supports same-sex marriage; three-quarters believe it will eventually become a reality.

Australia is out of step with most of the Western world. Countries such as Sweden and Norway have long recognized same-sex marriages. The British Civil Rights Partnership Act covers virtually all the rights of marriage. Several US states have legislated for marital equality, the federal government under Bush moving rapidly in its 1996 Federal Defense of Marriage Act to deny federal recognition of those State laws. No US State has to recognize same-sex marriages ratified in other States, but the new Act did not forbid States to allow gay marriage. Same-sex marriage is still discriminated against through taxation and social security, so equality has not been achieved.

Similarly in Australia, the Howard Government moved to consolidate the 'man/woman/for life' definition of marriage, despite the fact that, for 100 years after federation in Australia, marriage had remained undefined. As Justice Alisdair Nicholson pointed out, even the Family Law Act (S43) injunction for the Court to have regard to 'the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life' was not really a definition at all. It harks back, he says, to Lord Penzance's 1866 definition which even then flew in the face of the 1857 provision legalizing divorce. Nicholson is unequivocal in stating that discrimination against same-sex marriage is in contravention to the International Covenant on Civil and Political Rights provisions relating to non-discrimination and to arbitrary interference in privacy and the family. And the High Court of Australia in 1996 observed that the concept of marriage was never frozen in time. Nor, it must be noted, was the acceptability of homosexuality, even within the confines of religion. Social practices and norms change and, in time, the laws must recognize that change.

Finally, it must be noted that in those countries that have already recognized gay marriage, the evidence is clear: it does not undermine social morality or lead to undesirable effects. On the contrary, in Sweden, heterosexual marriage rates have increased 30 per cent; similarly in Denmark, with the added result of lower divorce rates and fewer children born out of wedlock, both surely desirable outcomes. Canada reports a lower divorce rate for same-sex couples and the American Academy of Pediatrics reports that children with gay parents fare as well as those with heterosexual parents on all measures of emotional, social, cognitive, and sexual functioning. Studies repeatedly find that marriage benefits the health and wellbeing of the partners too. It is (as with single-parent, step, de facto and married couple families) the nature of the relationships within that family that matter, not its formal 'structure' or type.

The Churches (and Australia's Labor Government) have to accept that marriage serves secular needs, not spiritual goals. Marriage is a fundamental social institution which recognizes and regulates adult couple relationships. In the Canadian debate about same-sex marriage, Ottowa Justice Laforme held that a 'civil union' is still an 'alternative' status, equivalent to the segregation of black and white students in pre-Brown vs. Board of Education US civil rights times. The State already controls the institution of marriage as a secular institution; it is the State's responsibility to guarantee the rights and responsibilities of all adult partners and of children born from or being cared for within that partnership.

As a matter of individual choice, couples with religious beliefs can already opt for a church marriage (the church being registered by the State to certify legal marriage), though over 60 per cent today choose a non-church ceremony using a registered civil celebrant. The Church could still insist on not conducting or recognizing any same-sex marriage (being immune from anti-discrimination laws) but that would be irrelevant to same-sex couples who simply want full legal recognition of their commitment to one another. Where the State must continue to be vigilant is in the area of mutual care and responsibility for children who may become part of that same-sex marriage (by whatever path), and in ensuring that gay partners have the same financial and legal rights as those already granted to both heterosexual and de facto couples.

Legal recognition is not the same as moral approval and same-sex couples have done no harm, so we should get over whatever ingrained repugnance some may feel towards homosexuality and allow those who want to live within the legal restrictions and obligations of formal marriage do so. The current law is out of step with changing social norms which, history shows, are never immutable as human relationships adapt to new circumstances. Indeed, recognizing same-sex marriages as equal in the law to heterosexual marriages may reinforce the ongoing historical reality that marriage is 'an honorable estate' which 'should not be entered into lightly'.