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November 17th 2011 print

Tim Cannon

Heretics beware!

Let’s not be half-baked in our dedication to non-discrimination: in these sexually amorphous times, surely it’s discriminatory to exclude men from maternity leave, purely on the basis of gender, right?


Faith, dogma and marriage 


As usual, faith and dogma are distorting the marriage debate. That’s right, those pesky secular proselytes are at it again, dogmatically preaching their blind, irrational faith in the god of "non-discrimination". 

“Marriage discriminates against same-sex couples” they rail. “This evil discrimination must be cast out!” 

Such have increasing numbers of Labor MPs – particularly Senators and ex-Premiers – homilised from the public pulpit in recent months. And so shall the Labor left piously process to kneel and pay homage at the altar of non-discrimination, during the ALP’s national conference this coming December. Heretics beware. 

Well at the risk of invoking the judgment of the grand inquisitors of the age, this heretic is keen to open a window or two and let the light of reason in, because common sense says that the god of non-discrimination really ain’t all he/she/it is cracked up to be. 

First, let’s be clear: marriage discriminates. It excludes same-sex couple-relationships. That’s pretty much the point. The legal institution of marriage is specifically designed to signpost the unique significance of one particular kind of human relationship as against all other relationships, homosexual or otherwise. 

Now unless you’re a biology denier, and completely out of touch with biological reality, you’d likely agree that the heterosexual union is uniquely significant to human society, being the relationship by which our species reproduces itself. And unless you’re a children’s rights denier, you’d have to concede that we, as a society, have an obligation not to interfere unnecessarily with a child’s right to be raised by his or her own biological mum and dad. 

In recognition of these two fundamental realities of human existence, the state has traditionally thought it wise to fortify, by legal means, the one kind of relationship which, by its very nature, accommodates both human reproduction and the raising of children in optimal circumstances: the union of a man and a woman, to the exclusion of all others, for life. 

The motive is entirely practical: by fortifying these particular relationships through the legal institution of marriage, the state stands to forestall a great deal of social dysfunction (and associated cost to the community), through an institution whose observable (though admittedly not universal) effect is to give children a stable home-life with their own biological mum and dad. 

The fact that the legal institution of marriage specifically corresponds with the particular significance of the lifelong, exclusive heterosexual union does not mean that other kinds of relationships aren’t significant. It just means that no other kind of relationship has the same significance, and so the state does not have the same interest in recognising other relationships in the same way. 

Lifelong, loyal friendships, for example, are extremely significant and immeasurably beneficial, both to individuals and to society. But they are not significant for the same reasons that lifelong, exclusive heterosexual unions are significant, so they are not recognised by the state in the same way. Indeed, despite their immense value, friendships are not recognised by the state at all. 

Similarly, given that same-sex relationships are not conducive to human reproduction in the same way that heterosexual relationships are, they don’t attract the same kind of recognition from the state. That is to say, same-sex and opposite-sex relationships are different in a deeply significant way, and so, quite sensibly, they are treated differently. 

This is no slight on persons in such relationships; just an acknowledgment of the truism that different kinds of relationships are, in fact, different. If our dogmatic impulse to stamp out discrimination leads us to treat significantly different things as if they are not different, the result is not justice; it is insanity. It is the antithesis of sense. It is the triumph of dogma over reason. 

Take an analogous case, also related to sex and gender: maternity leave. 

Maternity leave is an entitlement specifically for women in paid employment who have recently given birth, miscarried, or adopted a child. As such, the entitlement excludes women who have not recently had a child. It especially excludes infertile women. And obviously it excludes men. 

Is maternity leave discriminatory? Should it be more inclusive? 

It certainly seems grossly unjust that certain women should be excluded from a substantial workplace entitlement merely on the basis of a medical condition (infertility). And what about those “socially infertile” (i.e. single) women who can’t fall pregnant, and can’t afford IVF? Aren’t they being unjustly discriminated against by virtue of their relationship status and lack of financial means? 

And besides, wouldn’t there be broad positive consequences in the community if maternity leave wasn’t so discriminatory? Wouldn’t it have a positive impact on the psychological health of infertile women, and improve community perceptions of infertility, if fertile and infertile women were treated in exactly the same way? 

But let’s not be half-baked in our dedication to non-discrimination: in these sexually amorphous times, surely it’s discriminatory to exclude men from maternity leave, purely on the basis of gender, right? 

What’s that you say? Perhaps we could have a separate paternity leave scheme for men? How dare you. Separate, dear comrade, is not equal. To adopt Senator Doug Cameron’s parlance: it’s apartheid. 

You may scoff, but none of this is at all far-fetched. The benefits of making maternity leave more inclusive really do ring true. So why persist with a discriminatory system? 

The answer is so obvious it hurts: making maternity leave more inclusive would defeat the entire purpose of the scheme in the first place, which is to provide assistance specifically to women who have just had a child. Maternity leave schemes are supposed to “discriminate”, by addressing a specific situation of unique significance (i.e. maternity) in a very specific way. 

Similarly, through marriage, our legal system treats a specific relationship of unique significance in a very specific way. 

It’s really not that hard to see the sense in doing so. Unless, of course, you are blinded by an irrational, dogmatic faith in the god of non-discrimination. 

Tim Cannon is the Australian Family Association Research Officer