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December 4, 2017 Charles Heintel 0Comment

Australian Parliament is set to take up the issue of same-sex marriage.

Nearly 80% of Australians voted in a postal survey (plebiscite vote) from September 12th through November 7th on whether the Australian government should legally recognize same sex unions as marriages. The Marriage Act of 1961 defines marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” Thus, purported marriages of same-sex couples in Australia are considered legally void. While it is not illegal for same sex couples to publicly consider themselves married, activists refer to hopeful government recognition of same sex marriage as “legalization.” On November 14th, the government announced that slightly over 60% of voters chose “yes” for the government to recognize same sex unions as marriages. This was not a binding vote so it is up to Parliament to decide whether they want to implement this through legislation.

Since at least 1975, Australian law has recognized de facto relationships between two people of the same sex. “De facto” status arguably gives couples the same rights as married ones. Recently, former prime minister Tony Abbott wrote, “Already, indeed, same-sex couples in a settled domestic relationship have exactly the same rights as people who are married.” Activists point out that while rights afforded to married couples are simple and easily attained, it can be complicated and time consuming for de facto couples to secure the legal rights that married couples have. Laws concerning de facto couples also differ between different states and the Commonwealth as a whole, and different laws and government programs have different definitions about what constitutes a de facto relationship.  

Notice that it is not people who qualify for a de facto union, but a situation that qualifies. Any adult could qualify for a de facto union, or a legal marriage for that matter, but not every situation can be considered. This might provide a counter argument to those who say that not legally recognizing same-sex marriages is unacceptable discrimination. People must be treated equally by law, but situations do not. The government can distinguish between a situation where three people apply for marriage together, someone who is already married applies for a new marriage without a divorce, an adult applies for a marriage with a minor, and a “typical marriage” where one unmarried man and one unmarried woman apply for a marriage. There is little debate whether it is legitimate for the government to distinguish between these situations. Thus, the debate should be about whether the government should in a sense promote or ignore a given societal phenomenon, such as same sex marriage, or marriage at all. We will return to the latter topic later.

Certainly, it would be wrong for the government to negatively discriminate against situations based on certain factors like race. When it comes to same-sex marriage, the distinguishing factor is sex. Is it fair for the government to look at gender when passing laws? The US government, and historically the Australian government, has drafted men into war, but never women. Governments also recognize bathrooms that are for only one sex as being legal (and sometimes required it by law as was passed in North Carolina). Governments have also passed laws that treat paid parental leave for mothers versus fathers differently. This is the case in Australia. While these laws are contested, it is probably fair to say that there may be times when it is reasonable for the government to distinguish between men and women.

“When government is in the marriage business, someone will always be losing.”

Furthermore, let’s consider the point of licenses like marriage licenses in the first place. They exist to grant privileges to some and not to others. Not every establishment gets the liquor license they want, you have to meet certain requirements to get a license to fly a plane, and you have to be in a certain situation to qualify for a marriage license. Now, we don’t have to take for granted the system of licensure. One can believe that the government should not require licenses for many of the things they currently do. One could say that the government shouldn’t grant some people privileges that are withheld from others. This way, more freedom could be left to individuals.

However, marriage is not the same as a liquor license. Without liquor licenses, every establishment would be able to serve alcohol. But without marriage licenses, everyone would be left without legal recognition and the privileges that come with it. I propose that this would actually be preferable. This way, government would take a step back from its current role in society. The state should not be signaling to us which unions are “acceptable” and “unacceptable.” If you want to be in a same-sex union, it isn’t fair for your government to be treating your lifestyle choice as second class. And if you’re a conservative Evangelical Christian, for example, it isn’t fair for your government to be legally define marriage in a way that undermines your beliefs. When government is in the marriage business, someone will always be losing. With marriage laws, the state signals which unions are “better” and which ones are “worse” or considered completely unacceptable. It is certainly not the rightful role of government to promote and demote certain things in society.

Any privileges that currently come with marriage could be achieved through private contracts between married people and across the board tax cuts to all, regardless of arbitrary characteristics Employers, hospitals, and other organizations could still have criteria for who is considered married. And instead of a one size fits all policy from a national government which ends up displeasing plenty of people, organizations could deal with marriage in a way that considers their particular beliefs and the lifestyles of those they serve. The flexibility and diversity of marriage that would occur under this system is similar, in a limited way, to the recognition of de facto unions which naturally occur in society by different levels of government across Australia.

If you wanted to get married, you would get married however you see fit: by a friend, by a religious cleric, or without any sort of officiate. No one else would have to accept your marriage as legitimate and you wouldn’t have to accept anyone else’s marriage as legitimate. Instead of government setting the standards for marriage, individuals and groups would. This is how society functions: people make value judgements for themselves based on their own personal beliefs. But you would never have government deciding whose arrangement counts and whose doesn’t. The beauty of a free society is that you can live a sheltered, conservative lifestyle if you wish, or you can live a progressive, non-traditional lifestyle if you see fit. And in either case, the government shouldn’t be getting involved.

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