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Same sex (same old) marriage

By Kellie Toole - posted Friday, 20 September 2013

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 modernsecular 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.

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About the Author

Kellie Toole teaches Criminal Law and Procedure, and Evidence and Proof in Theory and Practice at the Adelaide Law School, University of Adelaide.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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