In the United States and Canada, the cause of gay and lesbian marriage has recently made some progress. Its opponents are now seeking to reverse these achievements. As a result, the issue of same-sex marriage is in the focus of public debate yet again. There has been some debate in Australia too. That was triggered off, in particular, by the Australian Family Association’s recent submission to the federal government arguing for a reform of the Marriage Act in order to reaffirm its heterosexual character and ensure continued exclusion of gays and lesbians.
Ours is a free and democratic society, meaning that when a minority demands equality with respect to an important social institution, we should grant it — except, of course, if there are very strong arguments against doing so. So, what are the arguments against same-sex marriage?
One is that “marriage” means a relationship between a man and a woman, making “homosexual marriage” impossible by definition. But while ordinary usage bears out this claim, marriage is a legal institution, so it is legal usage that counts. Now, legal definitions, too, are currently couched in heterosexual terms but this doesn’t settle the matter for it is precisely whether the law should be changed to allow gays to marry that is at issue.
Well, should it? Some say that marriage has historically been a heterosexual institution and that is what it should remain. But the fact that something has always been one way or another isn’t a conclusive argument for keeping it that way. If it were, no social change would ever be justified. Moreover, marriage hasn’t always been the preserve of heterosexuals. As American legal scholar William N. Eskridge Jr. shows in his book The Case for Same-Sex Marriage, the history of both Western and non-Western societies provides examples of same-sex marriages.
The nay-sayers insist that the state has a legitimate interest in procreation and therefore ought to withhold recognition from unions that will not produce children. Again, the argument doesn’t hold up. If procreation were its overriding concern, the law would rule out all nonprocreative marriage. Couples that can’t or won’t have children couldn’t get married: not only gay and lesbian couples but also heterosexual couples that can’t have children because of sterility or some other deficiency; those too old to have children; finally, those that could but for whatever reason decide not to have children. And whatever motives heterosexual married couples have for having children, the exclusion of gays and lesbians from the institution of marriage is certainly not one of them. Nor are we told just how this exclusion promotes procreation. Does it somehow encourage heterosexual spouses to procreate more than they otherwise would? Would legal recognition of same-sex marriage cause them to procreate less than they do now?
There is also the argument that allowing same-sex marriage would be bad for children. Children raised in such marriages would have just one, rather than two role models, male and female, to look up to and to learn from.
Some feminist writers have questioned this assumption. But, for the sake of argument, let’s assume that a child needs to have both a male and a female role model within the nuclear family. If this need were to shape the law of marriage, it would mean that the state shouldn’t allow the creation of single-parent families. It should forbid artificial insemination of, or adoption of children by, single parents. Couples with underage children should be denied divorce. Would anyone seriously advocate all these measures?
Finally, there is the claim that legalising same-sex marriage would pose a threat to heterosexual marriage. This is a very general and indeed puzzling claim: we are never told just how is this supposed to work. If the stability of heterosexual marriage did, as a matter of sociological fact, depend on the unquestioned monopoly of the procreation view of sex and marriage in the public realm, that would indeed raise interesting moral and legal issues. But we have no reason to believe that.
Some opponents of the full and equal inclusion of gays and lesbians in the institution of marriage try to defuse the issue by arguing that a gay or lesbian couple can secure almost all rights and benefits of marriage without actually getting married: either by making certain special legal arrangements, or by entering into legally recognised domestic partnership. But while this may be enough for some same-sex couples, others insist that the law recognise their commitment to one another in the same way it recognises the commitment of heterosexual couples. For them, the issue isn’t solely, or even primarily, one of rights and benefits but of recognition and the acceptance by the larger community that only such recognition can express.
The bottom line, then, is that none of the arguments against same-sex marriage are sound. Of course, the church, the mosque, and the synagogue must act by their own lights. But civil marriage is a different matter. The law of marriage should admit gays and lesbians on an equal footing with heterosexuals. As long as it doesn’t, the state is engaging in invidious discrimination.
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