Tuesday, 29 October 2013

Same sex marriage is coming to the ACT. That is, the High Court of Australia!


In a week's time, I would have attended three weddings in three weeks. As a married man, it is great to witness other couples tie the knot, committing themselves to each other for life. Hearing them recite their vows reminds me of the beautiful lifelong promise I made to my wife in front of my family and friends almost two years ago.

Unless you've had your head under a rock for the past two to five years, the issue of same sex marriage has at times dominated the marriage landscape. I don't know the actual figures as to how much public support there is, or is not, for same sex marriage, however, there is substantial support for same sex attracted couples who want the "right" to marry.

Last week, the Australian Capital Territory became the first State or Territory in Australia to legalise marriage between same sex attracted couples. What is extremely interesting, and also quite concerning, is the fact that the ACT's new law contradicts the Australian Constitution, (Federal Law) on marriage. Currently, and as has always been the case, the Constitution defines marriage as a lifelong union between a man and a woman. Specifically, Section 5 of the Marriage Act 1961 states marriage as:
"...the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."
At a federal level, former Prime Minister Julia Gillard was against same sex marriage, although she was willing to take a conscience vote in Parliament on the issue. Kevin Rudd was also against same sex marriage until he decided he needed more votes and did a complete back flip. Who knows where he stands on the issue at present. Current Prime Minister Tony Abbott is staunchly against same sex marriage.

State and Territory Law can differ from Federal Law, however, they must be constitutional. Therefore  the obvious question stands out like a sore thumb. How could the ACT legalise marriage between same sex attracted couples when it contradicts the Marriage Act 1961?


This is the very reason Tony Abbott is going to challenge the ACT's new legislation in the Australian High Court. The ACT's law on marriage is so inconsistent with the Federal Law and is therefore arguably unconstitutional. To the extent it is unconstitutional, the High Court could not possibly uphold it.

Should the High Court repeal the ACT's law on marriage, there will no doubt be some form of outrage from same sex marriage advocates. Regardless of any potential backlash, it is worth exploring whether a reversal of this law would be a good thing or a bad thing for our country.

In order to delve into this, I believe it is important to remove ourselves from the standard frames our society impose on marriage. These frames include:

  • Marriage is about equality;
  • It's discrimination to not allow same sex attracted couples to marry; and
  • Children are an afterthought.
In fact, the same sex marriage issue throws up many more topics of conversation than these. For example, if marriage is redefined to include same sex attracted couples, the redefinition would actually reduce or eradicate the actual concept of marriage. Marriage will no longer be what it is and has always been. Under the guise of being "all-inclusive" with respect to who can marry, a redefinition would actually rid society of traditional marriage.

Another crucial topic that is often missed is the idea of gender identity. Children need a mother and a father in order to truly discover their masculinity or femininity (depending on their sex). Seeing how your mother and father act and live helps a child distinguish themselves from the opposite sex.

There are complimentarity problems with redefining marriage. Complimentarity in relation to motherhood and fatherhood and how this works together. Redefining marriage actually redefines parenthood. Children suffer through multiple parents. For example biological parents, gestational parents, social parents etc.

Redefining marriage opens the door to pro-creativity problems. Same sex couples cannot naturally conceive. Do we want a generation of test tube babies in the future? What are the implications of this?


Re-definition is arguably discrimination against heterosexual couples who view marriage to be as it has forever been.

The list goes on. These and numerous other issues could be discussed at length, however, I will focus on the dot points above in this post.





Marriage is about equality

Many good values are stated by homosexual advocates when it comes to marriage. If marriage is purely about commitment and/or emotional feelings between two people, then same sex marriage would be a good thing and the Church and the State would have no grounds to exclude same sex attracted couples from marriage. However, marriage is an institution that pre-dates both the State and the Church and is widely recognised worldwide throughout different cultures and countries. It has been since man was put on earth.

Interestingly, under most State Laws, homosexual couples are currently entitled to the same rights as heterosexual couples through civil partnerships and civil unions. Therefore they will not gain any additional legal rights by being included in the definition of marriage.

Once I point this out to people in a discussion on this topic, (which usually shuts down the equality argument for a minute) the argument usually turns to: "well what's wrong with letting two people who are in love get married? They have feelings for each other just like heterosexual couples".

In my opinion, we, as a society need to reconsider what marriage actually is. Marriage is more than just a union between two people that are in love or who have emotional or sexual feelings toward each other. It is about selfless giving to your spouse with a view to creating children. What is more loving than me giving myself completely to my wife, giving my body to her in an act of love, and creating a brand new human life? Unfortunately, due to our biological makeup, same sex couples cannot do this.

Given marriage has stood the test of time as a lifelong union between a man and a woman with a view to creating and nurturing children, same sex attracted couples simply don't fit the definition of marriage. This is not inequality.

It's discrimination to not allow same sex attracted couples to marry

When I point out the fact that it is not a matter of equality if someone does not satisfy a definition, it usually leads to a protest on the grounds of discrimination. However it is important to distinguish between just and unjust discrimination. There is a distinct and important difference.

Like all laws and policies, marriage has requirements that need to be fulfilled. The State makes reasonable exclusions in all laws and policies. Not only does marriage justly distinguish against same sex couples, it also distinguishes against couples that are under age or couples that are family members. Not allowing under age couples or family members to marry is not unjust discrimination. These are reasonable distinctions for the State to make.

It is similar to the State not allowing people under the age of 65 access to the pension. I cannot get access to the pension at age 30 because I want it and think I have a right to it for whatever reason. The age restriction on the pension is a reasonable distinction to make and is not discriminating those under 65. Nor is it unequal to not allow people under 65 access to the pension.

Children are an afterthought

Children! The often forgotten and neglected piece of the same sex marriage puzzle. Maybe same sex marriage advocates are onto something when they talk about rights and discrimination. Every child has a human right to know and be nurtured by their biological parents. The Universal Declaration of the Rights of the Child states:

"The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother..."
Numerous studies have proven that children who are raised and nurtured by both their biological parents fare better in later life economically, socially, emotionally and in other ways. Studies have also proven that children from broken homes, or children with multiple parents or single parents, do not fare as well as those that come from stable, loving homes. 

This makes sense. I have seen first hand the damage broken homes can have on children. I have also seen, in fact I am part of, a loving and unified family. My parents have been happily married for over 30 years. My six sisters and I are all happy in life (well three of them are under the age of 16, but they're happy!).

Picture a teenage child who has same sex attracted parents who has never met his biological parents. If a conversation with his peers turns to traits they have developed from the genes of their parents (for example a certain style of voice, mannerisms etc), how do you think he or she will feel? Do you think he or she will wonder who his or her biological parents are? Do you think he or she will wonder about his lineage and where he or she came from?

The State has an interest in preserving the common good. It makes laws and introduces policies that uphold the good of our society. It then follows that the State has a vested interest in the upbringing of our children as family, and children, are the cornerstone of our society. Same sex marriage is not in the best interests of the child, and by extension, the common good of our society.

In my opinion, the common good will be the High Court repealing the recent ACT law on marriage. Watch this space and let's hope, for the good of our children and future generations, that they will not be discriminated against in times to come.

All the best,
Dom Meese

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