Teaching Law

Wednesday, 12 August 2015

Marriage Equality: Taking the Liberal out of Liberalism

The same sex marriage debate in Australia is deeply strange. On the one hand, advocates of 'traditional marriage' paint marriage equality as a radical departure from morality. On the other hand, those in support of same sex marriage argue that 'love has no boundaries'. Neither of these positions grapple with the rationale for the law's involvement in certifying relationships. Arguments on both sides of the debate could probably be satisfied by removing the certification of intimate unions from the law altogether. This need not interfere with religious or personal observances, otherwise known as 'marriage'. This is a radical solution outside the framework of the current debate. But it does highlight the inherent conservatism of both sides of the issue - where the legal institution of marriage has universal support. This can be seen in the arguments by both parties in the US Supreme Court decision of Obergefell v Hodges.

Accepting that the law's involvement in marriage will remain, this post seeks to unravel the different aspects of the marriage equality debate through the lens of liberalism. It has been the rather extraordinary process of the Federal coalition joint party meeting on 11 August that raises a lot of questions in my mind. In particular, I wonder about what this debate says about the law and political process, and what it says about liberty and the operation of government control over personal actions.

Marriage is a conservative institution

Marriage is an inherently conservative institution - whether looked at in religious, social, or legal terms. At law it certifies the status of men and women in terms of their sexual relationship, but it also stands for conservative notions of family that reflect 'traditional' norms, and traditional gender roles. These social roles are so pervasive that even where couples believe that they are behaving equally within their marriage (or marriage-like) relationship, in fact they enact traditional divisions of labour and what appear to be gendered intra-familial financial arrangements.

Part of the discourse around marriage, and its desirability in political terms, involves its perceived role in upholding social stability. This is a feature of the traditional norms of the family, which originally revolved around using legal certification of intimate unions to control property rights. This was a concomitant of women's perceived sexual proclivities and resulting pregnancies (and therefore inheritance issues at law). Marriage was a useful vehicle of control over women and by implication also, over men's relationships with women. Through Lord Hardwicke's Act in 1753, English law wrested control of intimate unions from the Church and from custom.

In Australia, marriage is no longer a prerequisite for the ascertainment of property rights between intimate partners. These are now regulated also through de facto property provisions which apply also to same sex couples. Similarly, the law provides for children independently of marriage. Despite these advances in the law, it continues to provide for government certification of intimate relationships under the Marriage Act 1961.

Extending legal marriage to same sex couples encourages the same conservatism that underpins heterosexual marriages. Like the heterosexual marriage, a same sex marriage would likely be defined as a union for life, voluntarily entered into, to the exclusion of all others. Even in the face of no-fault divorce, this type of union ostensibly promotes stability in the sexual dyad. While the concept of family might be slightly different (no mother and father, we are told) same sex marriage continues to promote the State-endorsed intimate relationship as the cornerstone of society.

While this is my interpretation of the legal institution of marriage, others see it differently - albeit still in conservative terms. It has come to represent romantic love and in the context of individualism, the ultimate expression of self.  This can be seen in the judgment of Kennedy J in the US Supreme Court:

The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
This statement illustrates the intersection of law and social constructs. While I might challenge that this institution (in its legal or social context) is the ultimate expression of personal fulfillment, I recognise that it is certainly a such expression for many. Its capacity to represent the individual this way invokes a consideration of the principles of liberalism that we are told inform our democratic system.

Marriage law and liberalism

Australia's contemporary legal system and its laws largely reflect the liberal tradition. They support the individual, small government or limited government power over the citizen, and the idea of personal liberty.  Limited government power over the citizen, for example, is reflected in liberalism's so-called public/private divide. This principle ostensibly justifies the operation of the law in a public context, while the law does not seek to involve itself in private matters. In the broadest terms, 'public' involves civic life while 'private' is usually equated with the market and the domestic sphere.

Despite this general belief, the law has implicated itself in market regulation for example, through competition law and consumer protection. The law has also implicated itself in the domestic domain - when it so wishes. In fact the law defines the private sphere according to perceptions of appropriateness of its own involvement. Thus homosexual acts were until only recently a criminal offence - a clear legal intervention in a purely private context.

On the other hand the law, until very recently, consistently failed to intervene in domestic violence, traditionally on the basis that this was something that occurred in the home, in private, and was therefore beyond the reach of the law. The law's construction of the marriage relationship created a private environment that permitted a man to have non-consensual sex with his wife and (by the 'old law') to give her 'moderate correction'. As a further example of the refusal of the law to intervene in private matters, an Australian court recently refused to uphold a man's agreement to pay his 'mistress' a significant sum if she would be available to him whenever he visited Sydney. Its reason was that this arrangement was personal (private) and therefore the parties never intended to create legal relations.

Although marriage is billed as an expression of the private life of the individual, it is a relationship endorsed by the State whose power is derived from the Constitution. Marriage represents a direct involvement by the State in the private life of citizens. As with other aspects of the public/private divide of liberalism, the law's involvement in marriage highlights the confused notion of the function of the state apparatus in a liberal system.

The contemporary conception of marriage, far from its original roots in status, is considered to be one of contract. This reflects the law's liberal roots in the freedom of the individual to make decisions affecting their own destiny. As many have pointed out however (see also here) the marriage 'contract' is unlike any other. While parties are free to enter marriage, its terms and duration are set by the State. However as can be seen from the decision in Obergefell v Hodges for example, social expectations and the law itself see marriage as an expression of the individual and of free choice. These are essential liberal concepts.

To the extent then that the writ of law seeks to run within this admittedly private sphere and despite the somewhat ambiguous nature of marriage as 'contract', it is very difficult to justify, in liberal terms, the exclusion of some from marriage on the basis of any particular characteristic. This offends the basic liberal ideal of equality and its concomitant legal principle of equality before the law. Further, it fails to extend to LGBTIQ people the liberty of freedom to marry that is extended to heterosexual couples. If marriage represents freedom - as a consensual State-endorsed relationship - this freedom should apply to all.

This goes to the heart of the problem with Australia's parliamentary opposition to marriage equality. The positivist stance of 'marriage is defined by the law therefore it excludes same sex unions by definition' fails to measure up to standards of freedom and equality demanded by our legal system. It invokes some of the problems with the circular reasoning of the law, but importantly does not answer the question of individual liberties and equality before the law.

Appeals to religious norms are similarly irrelevant in determining the question of whether the State intervene in private relationships. State intervention in intimate relationships has waxed and waned according to social norms and has always reflected a capacity to change. There has never been a monolithic understanding of marriage at law and the motivations for the law's incursions have been varied - to argue this is disingenuous.

This is not to disrespect the position that Churches and other religious groups have on marriage within their own institutional framework. It is simply to say that those non-legal frameworks that reject marriage equality have no place within the contemporary Australian legal system. It is inevitable that individual parliamentarians vote according to their own perceptions of the right and the good - and that this is integral to the processes of a liberal democracy. It is actually very difficult to measure whether any particular issue will be informed by religious conscience or not, and impossible to deny it. However MPs who pose such arguments do not sufficiently engage with the fundamental issues of liberties, equality and limited government.

Conscience, freedom and plebiscites

The Coalition's joint party room debate and the ensuing decision not to allow Coalition members a 'free vote' on marriage equality is surprising. While ostensibly allowing free speech within the confines of the joint party room meeting, some have sought to silence supporters of marriage equality within their ranks. Malcolm Turnbull pointed out that the Liberal Party 'is the party of the conscience vote' but it appears that the resolution will prevent Liberal party frontbench MPs from voting as they see fit - if they wish to remain on the front bench. The principles of liberalism have been rejected not only in the text of the law represented in party policy, but in the processes that might enact a properly liberal approach to marriage.

The government's decision appears to favour a plebiscite on the issue, to follow the next election. Ostensibly a democratic move, it is certainly not legally required. The Parliament has the power to enact the relevant change. In that sense, if the plebiscite becomes a reality, representative democracy will have been put to one side in favour of what is perceived to be political expediency.

Proponents of the preservation of the Marriage Act status quo represent the radical option, despite presenting themselves as the face of conservatism and despite seeking to uphold a conservative institution. Their stance, now the prevailing parliamentary position, erodes principles fundamental to our legal and political system. This position has been taken not in the interests of advancing society, but rather to block the enactment of key tenets of our society: equality, liberty, and limited government intervention in our private lives. Surely this is an illiberal outcome.

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