In defence of same-sex unions

FRANK BRENNAN  MARCH 09, 2011
The messy same-sex marriage debate continues in Australia and in the US. I remain of the view that we should not extend the definition of marriage to include same-sex unions; that we should legislate to recognise same-sex unions; and that we should leave questions about the legal availability of new technologies for the creation of children by same-sex couples for determination at a later date.

In Australia, the issue is focused in the Parliament; and in the US in the courts. Here the Prime Minister has committed her party to consulting with the public while deciding how to deal with the Greens on the issue. There the President has decided his Administration will no longer argue for the constitutionality of the 1996 Defense of Marriage Act in court proceedings.

For many same-sex marriage advocates, the debate is a matter of equality and non-discrimination. A person should be allowed to marry the person they love whatever the gender of the partner.

The trouble with much human rights discourse is that it is too readily reduced to assertions about individual rights and non-discrimination. Human rights discourse needs to be more subtle when it comes to a conflict of rights situation, or when the law is having to consider the public interest or the common good as well as individual liberties.

Historically the state had little interest in recognising and enhancing the place of marriage as a social institution just for the good of the couple. The state interest in marriage is just as focused on the rights of the children and the need to provide support for the social structure most suited to the rearing and nurturing of children.

Though there has never been an ideal time when all children were born into a marriage, we have maintained marriage as the ideal institution for the raising of children by their biological parents.

In Australian civil law, we recognise de facto relationships as well as marriages. Marriage is covered by Commonwealth law, while de facto relationships are largely governed by state and territory laws. Marriage should remain a Commonwealth matter.

If the Commonwealth Parliament were to attempt legislatively to expand the common law definition of marriage to include a union between two persons of the same-sex, there would probably be a High Court challenge to determine whether such an attempt was constitutional, given that the Commonwealth Parliament has a restricted power to make laws ‘with respect to marriage’.

Under our Constitution, the Parliament cannot increase its powers just by legislatively redefining the constitutional heads of power. To take a very different example, the Commonwealth Parliament has power to make laws with respect to ‘lighthouses, lightships, beacons and buoys’. It cannot willy-nilly define lighthouses to include tall inner city buildings and then make laws governing those buildings.

Just as the states and territories deal with de facto relationships, the best way to proceed is for the states and territories to give recognition to same-sex civil unions. That way we can accord equality to same-sex couples in their relationships without changing the nature of state recognised marriage.

While some human rights activists think this approach unprincipled, there are many Catholics who wonder how a Catholic priest can approve even civil recognition of same-sex unions. After all, Pope Benedict, before he became pope, taught constantly the immorality of all homosexual acts.

He also spoke against state recognition of same-sex relationships when he headed the Congregation for the Doctrine of the Faith (CDF). Some Catholics agree completely with this teaching. Others find it problematic.

Back in 1986, then Cardinal Ratzinger taught: ‘Although the particular inclination of the homosexual person is not a sin, it is a more or less strong tendency ordered toward an intrinsic moral evil; and thus the inclination itself must be seen as an objective disorder.’

Though homosexual acts committed by a heterosexual person might be judged immoral, one cannot credibly cast judgment on all such acts committed by a homosexual person without first taking into account the personal and relational context of the sexual act.

There are homosexual persons who enter into loving, faithful and committed relationships. These persons should be able to live in society free from discrimination, without state interference and with state support and approval. They should enjoy the same state protection as de facto couples enjoy under existing state and territory laws.

It is very difficult to characterise such a law giving this non-discriminatory protection to same-sex couples as ‘so harmful to the common good as to be gravely immoral’ as Benedict has previously done. It is at least contestable whether such a law would be harmful to the common good.

Not everyone who opposes same-sex marriage is a religious bigot or enemy of human rights. We need to keep an eye on the rights of all persons, including future generations of children, and on the maintenance of a social institution which is about more than the couple. We should continue to distinguish marriage from other relationships in the law whether they be de facto or same-sex.

Fr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.