Few things are more certain than that we will see much more of the slick propaganda presenting same-sex marriage as a righteous push for “equality”, its opponents as bigots and homophobes. What advocates cannot allow themselves to concede is that, legally, their case is a chimera
We — those of us who don’t approve of same-sex marriage (SSM) — are going to lose this argument in Australia as elsewhere. Guaranteed, because the way the issue is presented to the public is one of modern, progressive, rights-driven secularism versus outmoded, authoritarian religiously-driven conservatism. That there are people in the anti-SSM camp who do not conform to the latter image is not entirely unknown, but their voices are drowned out by the clamour emanating from the religious right. Besides, many of them button their lips because they would rather not be thought to be associated with that lot.
One of the fallacies promoted by the Christian right is that SSM is wrong because it contravenes the ‘one man, one woman’ model of marriage which they claim to be divinely ordained, and they assert that SSM is on the proverbial slippery slope to the legalisation of polygamy. In so doing, they conflate two distinct issues: the heteronormativity of marriage and monogamy/polygamy. What they don’t seem to understand is that polygamy is just another form of ‘hetero’ marriage.
Polygamy occurs in two forms: polygyny (one man, more than one wife) and polyandry (one woman, more than one husband). The former is by far the more common both historically and contemporarily, although the latter remains a customary practice among the rural classes of some parts of central Asia. Polygyny also is largely governed by customary law, although it is codified in Sharia law. Now consider prevailing attitudes towards homosexuality in polygynous societies (African, for instance) and have a look at what the Sharia says about homosexuality. Point made? Polygamy and homosexuality don’t mix!
Polygamy and SSM are actually legally incompatible as the viability of polygamy is dependent on a distinction being made between the partners’(as distinguished by sex) rights as defined by eligibility criteria and the marriage contract (of which there is a separate one for each spouse – polygamy is not a form of ‘group marriage’). Some of the people who use the polygamy argument against SSM appear to be confusing it with polyamory, which could (but does not have to) accommodate same-sex relationships. I could get really cheeky here and assert that monogamy appears to be on a slippery slope leading to SSM – all jurisdictions that have amended their marriage statutes to include same-sex couples are staunchly monogamous!
The SSM debate is about the heteronormativity of marriage. Marriage has been around for millennia as a means of legitimising offspring for purposes of inheritance and succession. This is reflected in international human rights law which stipulates the compound “right to marry and found a family”, and defines the family as the “natural base unit of society”. The verb “found” connotes “to bring into existence”, which only a ‘hetero’ couple can do. The UN Human Rights Committee attached to the International Covenant on Civil and Political Rights opined in General Comment No. 19 of 1990 that the right to “found a family” “implies, in principle, the possibility to procreate”. International law regards the male-female combination as inherently fertile (which does not mean that every single M-F couple need be fertile), and posits this inherent fertility to be the basis of marriage. Marriage is heteronormative by definition, and to ‘redefine’ it in such a manner as to enable SSM in effect means to de-define marriage. i.e. it ain’t ‘marriage’ any more.
As with all internally inconsistent law, absurdities arise in the application of SSM. This is superbly exemplified by the application of the consanguinity restrictions – e.g. a man cannot marry his sister, and so, mutatis mutandis, he cannot marry his brother. This is absurd because the purport of consanguinity restrictions is the prevention of in-breeding, and two males or two females can’t ‘breed’. Of course, it could be argued (as some do) that these restrictions should be waived for same-sex couples – but then ‘hetero’ and ‘homo’ couples would not be treated ‘equally’; and to apply ‘equal’ treatment by abandoning these restrictions altogether would amount to the legalisation of incest. We’ve got the mother of all catch-22s here!
The slogan ‘marriage equality’ and the concomitant prattle about ‘discrimination’ against homosexuals by not allowing SSM arise from a fundamental misunderstanding of what ‘equality’ and ‘discrimination’ mean. ‘Equality’ means applying the same rules to everyone, while ‘discrimination’ (in the negative sense) means treating people unfairly on the basis of some extraneous attribute. Let me use an analogy: a visually impaired person is prohibited from obtaining a licence to fly an aeroplane. Does this mean the visually impaired are not ‘equal’ or that they are hereby being ‘discriminated’ against? Answer: no, on both counts. Gaining a pilot’s licence depends on meeting certain standards pertaining to visual acuity which apply to all applicants, so they are being treated ‘equally’. Visual acuity is not an extraneous consideration with regard to what it takes to pilot an aeroplane, so they are not being ‘discriminated against’. I would apply exactly the same reasoning to a couple applying for a marriage licence. Marriage being heteronormative, one must be male and the other female (equality through the application of the same rule); the complementarity of the applicants’sexes is not an extraneous factor in considering their application (so denying a same-sex couple a marriage licence is not discriminatory). QED.
Western law-makers are being badgered into amending marriage statutes to enable two men or two women to ‘marry’ by a vociferous social engineering lobby that runs a slick propaganda campaign and has done a superb job in presenting itself as enlightened avant-garde, an image strengthened by the dour, stodgy face of religious conservatism that opposes them. There are compelling, wholly secular reasons firmly grounded in law for asserting that SSM is a bad idea, some of which I have briefly laid before you. It is reasons such as these, and not the moral reasoning of yesteryear and a few misguided corollaries, that could present the SSM advocacy movement with formidable stumbling blocks . But will that happen? At this stage, the signs do not augur well. Rather, looking at the way the debate is panning out in Australia, I get a strong sense of déjà vu.
Barend Vlaardingerbroek BA, BSc, BEdSt, PGDipLaws, MAppSc, PhD is an Associate Professor of Education at the American University of Beirut. Feedback welcome at [email protected]