Equality is about protection, not love

Again and again I see the same-sex marriage (SSM) debate cast in terms of love. And while I agree that people should be free to love those they wish (if it is mutual, and freely given, and no minors are involved), that is not what the SSM debate is really about. Instead it is about protecting people.

My mentor, David Hull, was a gay man in the 1980s in Chicago. His long term partner Richard contracted AIDS very early in the pandemic, and David nursed him through the disease until he died. David was not permitted to see Richard in hospital before his death as he was not “family”. This story has been repeated over and again with gay and lesbian partnerships. They lack the protection for access to their partners, inheritance rights, power of attorney, and so on. The simple fact is that same sex partnerships are not treated, in Australia or anywhere else, the same way that heterosexual marriages are.

I am not in favor of marriage generally. It carries with it the implications of yore: that women are somehow the chattel of their husbands, and that a particular the of family structure – the so-called “nuclear” family – is the “right” or “natural” arrangement, which is a case of the suburban middle class projecting their values (from half a century ago) onto the world. Anthropologists know that family structures vary widely in the world, and that American middle class arrangements are atypical, not the default.

However, in our present system, marriage brings with it all kinds of rights, or rather privileges, that de facto and civil partnerships do not. Excluding groups from those privileges is a case of natural injustice. Any right that is not available to all classes of people is not a right. It is purely and simply, a privilege of the powerful. So if we are to have governments involved in marriage, we must make it available to all people, not just the conforming majority, or else marriage is a privilege of the many against the few. I fail to see how anyone cannot grasp this simple principle.

Sure, churches may not like these privileges being available to those they dehumanize and devalue. Nobody says they have to agree with these becoming legitimate ways to form families and partnerships, and certainly, despite the ridiculous rhetoric, nobody is going to force them to enact same sex marriages, any more than we would force Catholics to baptize protestants, or Muslims to run pork-barbecues. They have their choices and they are free (in virtue, by the way, of the Australian constitution, section 116) to practice their religion any way they see fit (so long as it does not contravene the secular law, such as enabling child rape). 

But the churches, synagogues and mosques do not get to define the rights of everyone. At the best, they define the acceptable activities of their adherents only. Rights apply to everyone, or they are simply not rights.

As a nation, surveys show that as many as 76% of Australians are either in favor of it, or are not opposed to it, although the usual figure is around 60–65% (this depends very much on what question was asked in each poll). Even my conservative family now says they think it should just go to a vote. And yet, the conservative parties (Liberal and National) oppose a free vote in parliament, largely because they desire to impose the moral values of a small minority of Catholic and Protestant lobby groups on everyone.

My own solution to this is to simply remove government from such personal issues as marriage. The government has no justifiable role in determining the individual lives and partnering of anyone at all. Not only should they not impose heterosexual marriage on non-hetero folk, they should not impose conditions of marriage on Catholics or Protestant Christians, and so forth. The role of the government is just to protect its citizens, to ensure that contracts entered into are enforced, and that people, most especially children, are protected from harm.

So the Marriage Act itself should be abolished. A Civil Union Act should replace it, in which individuals (no matter the gender or purpose) are free to sign and register a union of any kind, for families or for friendships or for property disbursement. When the Catholic Church marries two of its parishioners, instead of signing a Marriage License, they sign a Civil Union Contract which affords them the legal rights of everyone, as well as the Churches doctrinal obligations (which would not be civil obligations). If people wish not to call this marriage, that’s up to them. But everyone would have the rights of access to dying partners. Everyone would have the property protections of shared accommodation, for example, against predatory children trying to eject the surviving partner from their home (which I have seen several times). And to use an example I have used before, two old mates who share ownership of a fishing shack could sign a Civil Union to protect the other’s ownership if one of them died.

I cannot see a downside to this. The rights of children would be protected, as would the rights of the elderly, and everybody else. Given that people have their reasons (which often is love, but often isn’t) for forming unions with other people, and given that the government should not impose moral views of its citizens apart from criminal legislation, the government should get out of marriage altogether and focus on something else, like the welfare of its citizens maybe.