Why Is There A Law On Marriage?


The United States is currently convulsed by two Supreme Court cases on marriage equality.  At home the two-thirds of Australians in favour of marriage equality grapple with Julia Gillard’s Jeffersonian contradiction on the issue. Despite – or perhaps in spite – of the rapid pace of change of on an issue of liberty, there is an important political question not being discussed: Why is marriage legislated at all?

There is no compelling argument for governance of marriage; the only exception is to right the wrongs of eternal discrimination by granting equal rights to all citizens – but only in the short term.

Historically, the institution has much of which it should be ashamed. Marriage likely evolved due to men’s desire to secure their agricultural and human property, and ensure legitimate succession. It is believed that the Catholic Church stopped priests marrying in the fourth century to prevent their kin making claims on Church property after their death.

Marriage has been antithetical to liberty for the majority of human beings who have inhabited earth throughout the ages, most notably women (or girls, as so often has been the case). Today, in many parts of the world, legalised marriage continues to be a tool of oppression, whether for the child brides of elderly men on the Arabian peninsula, or cultures where women are dishonourably murdered for refusing to be treated as the chattel of others.

In our own country, unmarried women were forced to adopt out their babies into the 1970s. In the 1980s, unmarried women faced the degrading discrimination of being unable to take out a bank loan.

The history and traditions of marriage show it to be a patriarchal institution of the highest order.

Why, then, are Western liberal democracies so polarised between defending and fighting for something which has been such a pejorative concept to so many, for so long?

When Kevin Andrews preached his views to us last year, he disguised socio-economic disparities to make the case for marriage in his book Maybe “I do” – Modern Marriage and the Pursuit of Happiness. Central to his argument was the logical fallacy of the slippery slope: “Once the state can no longer insist that marriage involves a commitment to a member of the opposite sex, there is no ground (other than superstition) for insisting that marriage be limited to one person rather than several.”

There is no justification in his diatribe as to why government should play a role in enforcing this view. The principles of liberal democracy hold that consenting adults should be able to make any union they so wish, provided it does not interfere with the rights of others.

There is simply no role for state regulation of group marriage, homosexual marriage, or heterosexual marriage in a democracy, with one caveat: If constitutions, human rights bills or other laws are unable to ensure the fundamentals of adulthood and choice, then appropriate legislation would be warranted.

The evolution of de facto rights has in many instances negated the need for marriage laws for matters of estates, finances, and custodial disputes.

Many have been captivated by the  United States’ two Supreme Court hearings on the constitutionality of California’s Proposition 8 ban on gay marriage, and of Bill Clinton’s 1996 Defense of Marriage Act (“DOMA”). Worldwide, many believers in gay rights have excitedly pounced into the publicity frenzy and the solidarity of the online avatar movement. They fail to see that any victory will be hollow – the issues at stake have as much to do with states’ rights as gay rights. The judges have so far indicated their reticence to make a broad ruling on gay marriage.

Roe v Wade has afforded protection of rights since it was heard 40 years ago, but the issue remains both very live and very controversial. Indeed a series of subsequent court decisions have narrowed its scope. Conservative legislatures are making laws to make access to abortion as difficult as possible. There will surely be a battle ahead like this over marriage equality.

The zeitgeist is rapidly evolving in Australia, the United States, and many other liberal democracies. Support for marriage equality is so quickly gaining momentum in both the public and political sphere that popular legislation has and will soon be enacted in many jurisdictions. Is victory via the democratic process not more satisfying than legal technicalities? Surely majority public acceptance is the endgame, and best gained by winning the public debate (if it has not been won already), rather than one swing-voting Supreme Court judge.

The debate on legislation of marriage be taken up by those who believe in social liberties. In 2004, John Howard obstructed the zeitgeist by amending the Marriage Act to define marriage as a “voluntarily entered-into union of a man and a woman to exclusion of all others”. He justified this inflammatory and discriminatory act by stating “[marriage]is something that ought to be expressed through the elected representatives of the country”. 
Religions may have a preoccupation with the bedroom activities of believers and non-believers alike, but should we tolerate this in our elected representatives?

Moreover, given the undeniable links between marriage and religion, the current arrangements should cause discomfort to all in favour of the separation of church and state. A prudent government should separate itself from that which is an essentially religious institution.

Separation of church and state is the essence of the secular, liberal democratic system of government. Tragically, the High Court effectively ruled in the 1981 Defense of Government Schools case that there is in effect no such separation in Australia. Even so, it remains important to reflect on this vital concept. In Jefferson’s famous 1802 letter establishing this fundamental of democracy, he stated his belief “that the legitimate powers of government reach actions only, and not opinions”. Marriage may be seen as an action in its most literal sense, but in actual fact it is an opinion –  for it is nothing less than an expression of one’s feelings for another.

The Australian Marriage Forum, an extremist Christian lobby group, believes allowing marriage equality entails support for the “institution of adult narcissism”. While it is better to leave the absurdity of this argument to defeat itself, it must be stated that there is no harm in ceremonial pursuits of narcissism. Indeed, the modern wedding industry could be described as such by its detractors and supporters alike.

If government is expected to legislate to prevent “adult narcissism”, it might be forced to legislate itself out of existence.

That which we know as marriage – a nice, albeit expensive, celebration of commitment, which comfortably dissolves into drunkenness and bad dancing – is not a bad thing in and of itself. On a semantic level, it would be futile to try to stop the use of the word marriage, or to change its heteronormative nature. But it is important for people to be able to define marriage of their own free will.

We must immediately, symbolically, give all people the right to marry whoever they choose. Less immediately, but equally symbolically, Australia must repeal the Marriage Act so that government may have no business with either our hearts or our bedrooms.

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.