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The deregulation of sexual relationships

By Justin Jefferson - posted Tuesday, 2 June 2015

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.

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About the Author

Justin Jefferson is an Australian who wishes to show that social co-operation is best and fairest when based in respect for individual freedom.

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

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