Repeal The Marriage Act!


Marriage is a great institution … but who wants to live in an institution?
Variations attributed to Groucho Marx and Mae West

Having myself been institutionalised twice — first, religiously, in my 20s and again, secularly, in my 30s — and also being bisexual, I feel well placed to comment on the current absorption with the topic of gay marriage.

My default position on the matter is that gay men and lesbians (and for that matter transsexuals and others) should enjoy the same benefits as do heterosexual couples when it comes to matrimony: legitimate children, adultery, and — ultimately — divorce.

Scholars of matrimony will know that the term originated circa 1300 from the Old French, matremoine, and before that from the Latin, matrimonium, meaning "wedlock, marriage", which comes from the nominative matrem, meaning "mother", and -monium, a suffix signifying "action, state, condition". Thus the origin of "matrimony" is the action, state or condition of, or bringing about, mothering. (In fact the Catholic Church, a trifle oddly, defines matrimony as "the office of motherhood".)

Clearly then, the link between marriage and begetting of (legitimate) children is etymologically intimate.

Yet the motivation for legitimate children these days is so thin as to barely amount to a rationale at all: there must be many thousands of schools across the western world where the challenge would be to find a pupil born in wedlock whose parents were still co-habiting.

So why does the deep desire for matrimony persist?

While it’s hard to explain the continuing attraction of matrimony in the modern world, the risks are easier to identify: at the advent of one’s first marriage, it would do well beforehand to hear the American proverb: "The most dangerous food is wedding cake". Beyond that, why not consult Samuel Johnson on second marriages: they are "the triumph of hope over experience". (And so a third or subsequent betrothal is surely the surrender of hope to delusion.)

Thus, one of the great advantages of being homosexual is, in my view, the avoidance of any general expectation of matrimony. Being gay, why would one want to marry at all?

As we all know the Commonwealth Marriage Act 1961 defines marriage as, "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life". This definition, incidentally, was added by the Parliament not in the previous millennium but in 2004, explicitly to exclude those you-know-whos.

But leaving aside the whole man-and-woman thing, which has been the subject of much recent debate, have you ever in all your days read anything so preposterous? To the exclusion of all others? Entered into for life? What nonsense this is.

Indeed all this debate raises a broader question: why is there a Commonwealth Marriage Act at all?

The historical answer is constitutional. Here I am indebted to the Australian Parliamentary Library — the Commonwealth’s power regarding marriage comes from section 51(xxi) of the Australian Constitution, which states:

"The Parliament shall … have power to make laws for the peace, order, and good government of the Commonwealth with respect to: Marriage."

The effect of the Marriage Act 1961 and the Constitution is that the Commonwealth has exclusive jurisdiction over the formation of marriages in Australia — there is no room for States to legislate (although State laws may govern civil unions and de facto relationships).

This however does not mean there must be a Marriage Act. There is no reason that section 51(xxi) of the Australian Constitution could not lie fallow, as do some other sections of the Constitution.

The contemporary social edifice of matrimony is hypocritical tripe. Legally, it could all be done through de facto relationship/civil union legislation, with default provisions for couples over 20 and co-habiting for more than two years, or for less time if they have children from the relationship. A sunset clause could come into effect after 10 years, but would not be triggered as long as (mutual) love shall last: which is what in effect we have today with the legal architecture of marriage and divorce.

This wouldn’t preclude the important business of weddings, by the way. It would just make them legally otiose. Love-struck couples no doubt continuing to be so inclined, they would still be able to indulge in their religious, secular or simply bizarre ceremonies. Women (and indeed men) could still play princess for a day at the inordinate expense of their families.

Yep, the solution to the "problem" of gay marriage is self-evident: repeal the Commonwealth Marriage Act 1961 and replace it with … nothing.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.