Friday, September 29, 2017

Gay marriage is (and isn’t) all about equality

It’s sometimes said by those in favour of gay marriage (i.e., those advocating for a YES vote in the plebiscite), that the question of gay marriage is essentially just a question of equality. This is why the term marriage equality is often preferred as a description of the issue. In this post, I want to explore this claim a little.


To this end, imagine a society where marriage is all about the creation of a family. Couples (of any gender combination) can partner up formally in civil partnerships, and hold equal rights in law on that basis. But this institution of civil partnership is not understood, in law or in social sentiment, as marriage. To the contrary, in this society, marriage is all about having children. Strong religious and social pressures link marriage to creating and raising children. Marriage ceremonies focus on this purpose, and this commitment. Marriage vows valorise the intention to have children, and to raise them in a stable family environment. We might even imagine that this commitment is reflected in law, and that where it is known that one partner in a couple is completely infertile, that couple cannot be married. Similarly, married couples who do not have children within a given period of time might have their marriages automatically dissolved. Romantic love and friendship between the two partners are acknowledged to be important ingredients in the mix, but without the intention and wherewithal to produce and raise children, there is simply no marriage. 
In this society, the essence of marriage centres on the biological creation and nurturing of children in a family. That is the institution’s socially and legally determined purpose. To be sure, there may be cases at the margins that do not perfectly meet this understanding. But overall, across the society, marriage is intrinsically linked to two people coming together to create a child, and then to nurture it and support it into adulthood.

It seems to me pretty clear that, in this imagined land, the question of gay marriage would not be a mere question of equality. The institution’s role and purpose is to promote unions that create and nurture children. It is therefore not arbitrary or discriminatory to make the institution apply only to those capable of doing so.
This does not necessarily mean that this society should not legalize gay marriage. There may be excellent reasons for it to do so. But if the society does legalize gay marriage, it would thereby expand and change its understanding of marriage. This change, for example, might be to an understanding of marriage as applying to any couple that was planning to raise a child (even if the child is not the biological creation of both parents). The decision to make this change would not be based on the moral demand for equal treatment, but instead would be a question of the society rethinking and revising its shared understanding of marriage.

Meaning and equality
The point that I think this little thought experiment shows is that the question of gay marriage is not purely about equality. The question is also a question about the meaning of marriage. If marriage is essentially linked to the biological creation of children from both parents, then it is not a violation of equality to deny that institution to gay couples. To the contrary, they would be denied entry on the basis of the purpose of the institution, in just the same ways that elderly couples, very young couples and infertile couples would be similarly denied entry.

So when YES proponents say that the question of gay marriage is simply a question of equality, as if we were only talking about equal legal standing under the rule of law, it seems to me that their argument is too swift. The prior question is also one of what the meaning of marriage is, or should be. Only once we have settled that question, can we understand whether it is arbitrary or discriminatory to exclude some people or partnerships from the institution.
Another thought experiment…

With this in mind, consider another society. In this society, there is a different meaning given to marriage. Marriage centres on love and commitment to one’s partner – specifically, it is about romantic love between two people, forsaking all others. In this society, while some couples marry in the explicit expectation of eventually having children, many marrying couples have no such expectation – and nor does the society (through either law or custom) pressure them into having children. Simply, the question of having children is independent of marriage. People can have children out of wedlock, and can be married without ever having, or wanting to have, children. In this society, when couples share marriage vows, those vows speak about their relationship and their feelings of love, care and support for each other. Their vows may not even mention the prospect of children. And when you look up the word ‘marriage’ in the dictionary, it talks about a partnership between a couple, or other tightly coupled unions, and doesn’t mention anything about children or procreation.
Suppose in this society, that the question of gay marriage arose, and that it was plain to everybody (as a social-psychological fact, established on the basis of empirical evidence) that gay couples can love each other, and be committed to each other, in all the same ways as heterosexual couples. In this case, to exclude gay people from the institution would be a violation of equality. In the first society, gay people (like all others who did not, or were not able, to have children) were excluded because of the very nature of the institution, which was all about having children. In the second society, gay people are excluded despite the nature of the institution, which was all about love and commitment to a partner.

Now I’m sure you can see where this is going. Our society, in twenty-first century Australia, is plainly much more like the second society than the first one. The intention and capacity to have children is not an essential part of the social understanding, or the legal reality, of marriage. But the presence of love between two partners, and their commitment to each other, lies at the absolute centre of our current understanding of marriage.

For this reason, it seems to me that to deny marriage to gay people in our society really is, at the end of the day, a failure of equal treatment.
An important objection

An objection can be raised here. A NO proponent could object to this line of argument by saying, “Okay, I accept that the widespread social and legal reality of marriage in twenty-first century Australia is essentially about love and commitment between two people, and not essentially about having and raising children. But I think this is an unfortunate result, and that our society would be better off with an understanding and legal definition of marriage that is all about having and raising children. So when I vote NO, I am voting for that, more traditional and family-focused, understanding of marriage.”

I have some sympathy with this counter-argument, in the sense that many conservatives may well have been despairing over the changes to the social meaning of marriage occurring over the last couple of centuries – changes they may have disagreed with and would have done everything in their power to prevent. For this reason, it may feel for such conservatives that voting NO in the plebiscite is consistent with their long-cherished and deeply-held views.
However, there is a fundamental problem with this counterargument. It is simply this: The plebiscite does not have the power to change the meaning of marriage, and to change it to a biological-children-based meaning. In fact, it is hard to see any social and legal forces that could effect this change in the present environment. To install that vision of marriage would require an enormous raft of legislative changes – ones that would disrupt and exclude countless existing (childless) marriages.

And even if those changes in law were made, it is doubtful that social sentiment on the issue would shift. This is a point that conservatives usually understand very well - that it is enormously difficult for top-down legislative activity to change entrenched social beliefs and values. As I see it, a YES result would take the existing social understanding (and dictionary meaning) of marriage, and remove the legal impediment to that concept applying in law to gay couples. But the NO result would not change the existing social understanding of the term (as nothing can do that).

To explain: Regardless of what happens in the plebiscite, the dictionary will still say that marriage is a union between two people, couples’ wedding vows will still extol their love for one another, the law will still focus on couples’ commitments to one another (and not their commitments to having children), Shakespearean romances and contemporary love stories will end in celebrations of marriage, unmarried couples will still have children, married couples will still decide not to, and so on, and on. There is nothing in the plebiscite that will change any of this.

What this means is that the Australian people are not being asked whether marriage should be an institution that is essentially linked to biological procreation. Instead, they are being asked whether the existing institution of marriage – as a union in love and commitment of two people – should be extended to gay couples. And if we accept that gay people can love, and be committed to, their partners just as much as heterosexual couples, then it really looks like an arbitrary exclusion to say that they should be excluded.
So I think it is understandable that, in voting NO, a conservative voter may hope to express their aspirations for another, perhaps long-past vision of traditional marriage. But the reality is that even if the NO vote prevails, that traditional vision of marriage (one that did not arbitrarily exclude gay couples) will not be re-instated. A NO result would leave us with the exact same social understanding of marriage we currently have, as a union of love and commitment. All it would accomplish is to continue the exclusion of gay couples from that institution. And because the institution remains about love and commitment (and not about having children), it would be an arbitrary discrimination to exclude gay couples from that institution.

In the end, then, in our country – but perhaps not in all others, at all times – gay marriage is a matter of equality.
And the same point may be made about religious marriage…

The same argument applies for marriage as a religious institution. If the definition, social understanding, and legal reality of marriage was essentially linked with a given religion (or, perhaps, with religion in general), then it would not be a vote for inequality to keep marriage occurring wholly within the dictates of that religion. The meaning of marriage would be religious, and marriage would naturally exclude unions operating outside the meaning the religion gives to marriage. If the religion said that gay people, heretics and atheists could not be joined together under God, then gay people, heretics and atheists could not be joined together under God. (Whether the law should follow the religion on this matter, or just leave the issue entirely outside the realm of the law, would be a further question - one about the proper relation between church and state.)

But, again, this marriage-as-essentially-religious does not reflect the reality of twenty-first century Australia, where atheists, agonistics, apostates, heretics, fornicators, blasphemers and all the rest are completely free to marry. And, again, the plebiscite will not and cannot change marriage to being religious in this way.
As a result, in this case as in the above case, a NO result would not serve to make marriage religious – it would only serve to exclude gay people from the existing institution of marriage.


Summing up, I think conservatives are quite right to draw attention to issues about the meaning of marriage, and to note that this is a prior question to the issue of equality under the law. But it seems to me that conservatives ought to go on to reflect on something that conservatives are usually very alert to: the ways that law can and cannot impact upon long-held social understandings. Simply, there is no way that this plebiscite (or any law) could budge the widespread and long-established belief that marriage is all about love, commitment and a union between partners. Nothing will change that. So the only question is whether the existing understanding of marriage should apply to all those who exhibit the relevant qualities - of love and commitment to one another.

And that is just a question of equality.

(This blogpost is the first in a series on the moral arguments in gay marriage.)


William Ferguson said...

Hang on Hugh, how dare you bring a rational argument to a thoroughly emotive debate :-)

While I'd like to think you could, do you really expect to sway a conservative to appreciate that there is more than one side to this debate?

Hugh Breakey said...

Hi Bill,
Well, maybe. The grim truth is that on politically charged issues, very few of us (conservative, progressive, religious, agnostic…) are easily open to rational persuasion. People hold their views on the basis of a wide range of convictions – and also on the basis of emotions, life-experiences, habits of mind, peer-groups, loyalties, and all the rest. One argument is rarely enough for any of us to change our tune, even on specific issues.

But I do think that everybody deserves the respect of having their reasons and arguments taken seriously, and considered on the merits! So at least I can aim for that.