EDITORIAL: by Peter WestmoreNews Weekly
The law and the status of marriage
, March 13, 2004
Until recently, laws in every country throughout the world recognised marriage as a legally enforceable agreement between a man and a woman to become husband and wife. Marriage changes the status of those who enter into it: it is an exclusive and enduring contract which requires the husband and wife to pledge fidelity to each other, and to care for each other and their children.
On this foundation, marriage is regarded as the basis of the family unit, necessary to protect the position of children, and ultimately, important to the stability of society.
With the best will in the world, none of these conditions apply to homosexual couples.
Suddenly, the foundation on which marriage has been grounded is under challenge. Acting on the basis of anti-discrimination legislation, several countries (Canada, Belgium and Holland) changed the law to permit homosexuals or lesbians to marry.Court ruling
Then last November in the United States, four Massachusetts judges decided that laws which disallow gay marriage were unconstitutional, and subsequently, the Mayor of San Francisco decided to marry gay couples, despite the fact that Californian law explicitly rejects marriages between persons of the same sex.
Since then, thousands of couples have been married in San Francisco because the city's newly elected mayor said the city's charter required equal protection under the law. To deny marriage licences to gay couples would violate that law, he said.
Challenges to his actions are winding through the legal system, and are certain to end up in court. (In 2000, Californians voted overwhelmingly for Proposition 22 which declared the only valid marriage was between one man and one woman.)
California Governor, Arnold Schwarzenegger, has said that he wants to have a legal definition of marriage as a man and a woman, but has apparently done nothing to stop the mayor. This has led to a flurry of moves in other American states to legalise gay marriage.
However, President George Bush has announced that he will support an amendment to the Constitution which would define marriage in terms of the relationship between a man and a woman.
He said the debate over the Constitutional Amendment can and must be conducted "in a manner worthy of our country - without bitterness or anger".
Under the glare of television lights, actress and comedian Rosie O'Donnell married her girlfriend Kelli Carpenter in San Francisco. Following the brief ceremony, she told gathered media, "We were inspired to come here by the sitting President and the vile and vicious and hateful comments he made."
If this is the motivation of others getting married in San Francisco, it has reduced the status of marriage to the level of political protest.
Following all these events, it is clear that within a short time, Australia will have to face up to the same issue, or alternatively, we will find that a group of judges or marriage celebrants will simply take the law into their own hands.
The issues at stake were eloquently described by Mary Ann Glendon, a Harvard Law Professor, in a recent article in the New York Times
. Professor Glendon said, "What same-sex marriage advocates have tried to present as a civil rights issue is really a bid for special preferences of the type our society gives to married couples for the very good reason that most of them are raising or have raised children."
There are other relationships of dependence and support which are frequently ineligible to claim them as family for the purposes of taxation, inheritance or insurance, a justification used for homosexual or lesbian marriage.
Professor Glendon said, "How can one justify treating same-sex households like married couples when such benefits are denied to all the people in our society who are caring for elderly or disabled relatives whom they cannot claim as family members for tax or insurance purposes?
"Shouldn't citizens have a chance to vote on whether they want to give homosexual unions, most of which are childless, the same benefits that society gives to married couples, most of whom have raised or are raising children?"
She added that same-sex marriage would "constitute a public, official endorsement of the following extraordinary claims: that marriage is mainly an arrangement for the benefit of adults; that children do not need both a mother and a father; and that alternative family forms are just as good as a husband and wife raising kids together."
In the meantime, media commentators in Australia have generally supported same-sex marriage, effectively endorsing moves by the Australian Democrats and the Greens to amend the Marriage Act to allow marriage between two men or between two women.
If Mr Howard is looking for a "circuit breaker" which will reinforce his credentials as a leader who upholds traditional family values, he will support a law which explicitly affirms what is already clearly implied in both the Marriage Act and the Family Law Act.
- Peter Westmore is President of the National Civic Council