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.

A Husband's Sacrificial Love and the Law

 

Sacrificial love: Just for husbands?*

My last post here concerned the change to wedding vows in the Sydney diocese of the Anglican Church.  Under the change, women can now 'submit' to their husbands, rather than obey. This is appropriate, apparently, because:

The husband's love is one of sacrificial love, and to submit to that kind of love is not oppressive, but is actually a joy and a great freedom.

Since this story, an Anglican minister from the Sydney diocese has released a paper upholding 'male headship [as] part of God's good ordering of all society - not just His Church' and suggesting that Christian women in leadership roles should only take such roles if they are prepared to adopt an appropriately masculine leadership style.

While both of these stories represent a view of women that holds no sway in the context of contemporary Australian life, they provide an excellent opportunity to re-evaluate the law and its assumptions.  Despite anti-discrimination legislation and other measures to uphold the status of women - not as submissive to 'male headship', but as autonomous legal actors in their own right - the law remains imbued with presumptions originating in these dated paternalistic Christian beliefs.

Women in Queensland. Back to the Future.

The public and private lives of women have come under scrutiny in Queensland in the last couple of months, including in a series of statements by LNP parliamentarians and advisers.  What is the status of women in Queensland in mid 2012, a few months after the swearing in of the Newman government?

What is the ‘Truth About Marriage’?

...Right-faction powerbroker Joe De Bruyn said marriage had been the union of a man and a woman ''since the dawn of humanity''...

...The Australian Christian Lobby reacted swiftly to the resolution, saying the party - in defiance of Ms Gillard - had chosen to be on the "wrong side of truth".

(The Australian, 3 December, 2011)

These comments by Joe de Bruyn in 2011 piqued my interest.  As I’ve written here before, marriage is, in my view, an institution of the law that seeks to subjugate women.  In a related context, in my view, it is a relationship concerning property.  Yet there is a very strong notion that marriage is so much more than this.

I have no opinion on private or religious views of marriage within the context of religious practice or how one chooses to celebrate it with one’s family and friends.  My interest lies in the legal construction of this private relationship – and de Bruyn’s comments, as with all comments in the same-sex marriage debate, occur in the context of law-making.

So I’ve been doing a little reading into the context of marriage and its regulation by the law.  I’ve a long way to go in learning about this complex institution, but even a preliminary overview provides some interesting contrast to the bluster of the political debate.

Is it true that marriage has been between a man and a woman since the dawn of humanity?  If you consider this as a moral or religious question, it need not enter the legal debate.  In the context of the law, I think that this is the wrong question.  I think that the right question is: since when has the law been so certain about its role in marriage, and in what circumstances?

The Invisibility of Marriage

Marriage can construct visibility

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing (Sir William Blackstone, Commentaries on the Laws of England. Vol, 1 (1765), 442

In the contemporary debate in both Australia and internationally over same-sex marriage, I have been torn between my antipathy towards the institution of marriage and my desire to see a more inclusive society. In this post I consider this tension in an attempt to articulate a consistent basis from which to understand ‘marriage’ in a way that respects all as individuals in their own right and likewise affords respect at law to the domestic partnerships they enter into.