The deregulation of sexual relationships

Australia should be getting government out of the business of registering people's sexual relationships, instead of increasing it by providing for the registration of homosexual unions.

The basis of the same-sex marriage movement are the claims that gays "don't have the right" to marry, or that same-sex marriage is "illegal". These claims are false. They are based on confusion about what marriage is. This is because neither church nor state has ever maintained that marriage is constituted by an act of the church or state. The position of both church and state has always been that marriage is constituted by the act of the parties in exchanging verbal commitments, which the church or state may or may not then recognise or register for their own purposes.

Contrary to popular misunderstanding, the act of marriage is the exchanging of vows, not the signing of the register or certificate.

Homosexuals have the same right as heterosexuals to exchange commitments; and to celebrate the formation of these unions by having witnesses, celebrants, ceremonies and parties, rings, and other such traditional surrounding formalities.

In fact homosexuals have more marriage rights than heterosexuals, since homosexuals can legally enter into multiple simultaneous unions, whereas for heterosexuals the very act of uttering the words is a criminal offence.

(The effect of the de facto relationships legislation is to put gays on substantially the same footing as straights as concerns the dissolution of marriage. It also forces the substantive legal status of marriage on people who do not want it, which would appear to be an abuse of human rights, but the "marriage equality" movement is not concerned with this.)

What gays cannot do, that straights can, is get the government to register their union. But this

a) is not marriage, and

b) only begs the question what government is doing registering people's sexual relationships in the first place.

Governmental registration of marriage is in fact relatively recent in the history of marriage. It started with the Marriage Acts in the eighteenth and nineteenth centuries. Contrary to the assumptions of the same-sex marriage movement, people have been getting married for hundreds and thousands of years before registration of marriage, or the church, ever existed. This fact invalidates the entire argument of the so-called "marriage equality" movement which depends on the false idea that marriage means the registration of marriage.

Before the Marriage Acts, marriage was recognised at common law. This required no notice, no witnesses, no celebrant, no registration. It just required the parties to exchange vows to take each other to spouse. The commitment had to be monogamous, exclusive, for life, and heterosexual. In this, the common law followed the canon law.

This raises the question why modern Australians, homosexual or otherwise, should be dictated to in our private lives by the inflexible opinions of long-dead sex-negative mediaeval monks. The same-sex marriage movement takes issue with only the last condition of the definition of marriage – heterosexuality – and seeks to preserve the rest. But its own rationale does not justify this discrimination. If there is any principle behind the movement for same-sex marriage on which all Australians seem to be in broad agreement, it is that people's sexuality is their own private business. So it is time we take a critical look at all the components of the definition: and what the State has marriage law for.

Times have changed. For example it is commonly accepted in Australia today that marriage can end in divorce, which the canon law and common law never accepted. Thus the federal government's own definition of marriage from the Marriage Act – "for life", i.e. permanent – is contradicted by the same government's own Family Law Act, which in effect defines marriage as lasting only until 12 months separation.

Also, at the time when the common law came up with its definition of marriage – in the middle ages - adultery was punishable under the canon law. And until the nineteenth century a spouse could sue the adulterer for damages for the tort of "criminal conversation". Yet in contemporary Australia adultery is not a crime or a tort, and often perhaps not regarded as seriously wrong. But the point is, it is none of the government's business.

For another example, why must people promise permanence if they want, say, a fixed term? You might not want it for yourself, but that's not the point.

Also many contemporary married people agree to extra-marital relations. Again, the question is not whether you personally agree either for yourself or others. The point is that, since it is common ground that marriage must be voluntary, therefore there is no reason why bigamy should be any more of a crime than adultery. The inflexible prejudice of the feminists against bigamists is no better than the inflexible prejudice of the conservatives against homosexuals. Both groups need to learn to mind their own business, learn some tolerance, and learn to stop sucking lemons and declaring other people's consensual private relations to be abusive or a matter of public policy.

Since serial polygamy is normal in Australia, and recognised and provided for by multiple federal and state legislation and policy, why should it be a crime punished by imprisonment for marriage to involve more than two people at the same time? Why is that any more of the government's business than if the parties are homosexual? And how can the gays for whom multiple simultaneous marriages are unequally legal, claim to be in a worse position, or claim to be seeking "marriage equality" by ignoring this while seeking the same exclusive status of traditional marriage for themselves?

The same-sex marriage lobby says gay marriage elsewhere has not justified any "slippery slope" arguments. This is to admit that same-sex marriage operates to continue to exclude those other forms of sexuality further down the imagined slippery slope. Hence they contradict their own claims to be about marriage equality.

But if the government itself doesn't even follow its own definition of marriage, why should anyone else be constrained, let alone criminalised, by the definition of marriage taken from either the Marriage Act or the common law, and originally from the canon law?

Whatever one's view of it, the question is not whether you approve of homosexuality, or adultery, or divorce, or swinging, or bigamy, as a matter of morality, because even if you don't, that is not a reason for the State to impose your values on others.

The real question of marriage equality is why should contemporary law favour some consensual sexual relationships either as to their formation or dissolution?

Real marriage equality does not mean extending to homosexuals the governmental conferral of an exclusive status of approval on some officially favoured sexual relationships, while it equally arbitrarily imposes marginalisation, disabilities or punishment on other consensual intimate relationships.

Real marriage equality, real respect for diversity, means that government should not be in the business of registering sexual relationships in the first place. Government registration of sexual relationships should be abolished, and consensual intimate relationships should be de-regulated. The consent of the parties answers all questions of morality, property and equity. It is not a legitimate function of government to interfere with them based on the ossified standards of the mediaeval church.