The High Court’s decision to allow exceptional government spending on the marriage postal survey makes way for the latest bizarre, but typical, episode in the history of political responses to changing social attitudes to marriage.
The voluntary postal survey is unique and bizarre, in that no government has yet conducted such a statistically unreliable exercise in gauging public opinion on a contentious social issue. Yet it is typical, in that political responses to social change in areas of sex and morality are usually slow, fiercely contested, ideologically confused, but nonetheless important.
Political change in response to changes in social values is slow
The slow and strange political processes in Australia over the political recognition of same-sex marriages are actually typical of those around the world. The legislative histories of many previous changes to marriage law have been far longer and more drawn out than the recognition of same-sex marriage in Australia is likely to be.
One of the most contested changes in British marriage law was the now-obscure reform to allow a man to marry his deceased wife’s sister.
In an era of high maternal death and limited social welfare, it was common for deceased women’s sisters to marry their brothers-in-law and assume their sister’s role as wife and mother. The churches regarded such marriages as incestuous, and fiercely opposed law reform to legalise them. It took almost 70 years for this now forgotten reform to pass.
Reforms to permit divorce, interracial marriage and to administer traditional polygamous marriages were similarly contested and slow to be formed and reformed.
It should, therefore, not be a surprise that legislative reform in Australia to allow same-sex couples to marry is taking longer than a decade.
The complex relationship between religion, law and marriage
In some jurisdictions, in some times, religious institutions have legislated and adjudicated for marriage. This has never been the case in Australia. Between 1753 and 1836, the Church of England did enjoy sole political jurisdiction and administration of marriage in the British world.
However, from federation, Australian marriage law has always been secular. Religious organisations have made their own rulings about what marriage practices their own members should engage in. But while “churches, mosques or synagogues might bless nuptials, marriage itself is not a religious institution”.
Nor is it the law’s role in Australia to impose moral standards on society. Since at least 1971, when censorship law was reformed, lawmakers have sought to use legislation to enforce current community standards, rather than impose ideologically based absolutes.
The government’s ostensible rationale for the optional postal survey is actually in line with this norm: to assess community standards. Both proponents and – especially – opponents of change have been careful to frame their arguments in relation to shared community values.
Marriage equality is about more than marriage
The case for marriage law reform to allow same-sex couples to marry has been relatively simple and consistent around the world: a claim that to include same-sex couples in marriage will increase equality and social inclusion.
As this case has gained traction in the West, opponents of change have had to innovate in order to combat rapidly changing community standards.
As I have argued elsewhere, opponents of marriage law reform are primarily motivated by religious conviction. However, in a largely secular context, where moral values cannot easily be imposed on a population, “they are attempting to hide religious and moral arguments in the Trojan horse of health and human rights discourse”.
The “No” campaign has so far largely sidestepped the social justice argument of the “Yes” campaign. Instead, they have raised fears about children in rainbow families.
Conservatives have argued that children have a “right” to a mother and a father, and that same-sex parenting necessarily involves the “removal” of a child from one of its natural parents. These are innovative arguments.
Same-sex parenting is clearly not in contravention of the UN Convention on the Rights of the Child. The right to a mother and a father is a completely novel human right for children, and one that is impossible to guarantee. And research clearly shows that children raised by same-sex parents show no different health or wellbeing outcomes to children raised by opposite-sex parents.
Similarly, when donor assisted reproduction became popular and was debated 70 years ago, governments and churches considered it at length. However, the major objection raised in these historical debates was that donor assistance in reproduction was equivalent to adultery.
Today, individuals and couples of all sexualities access assisted reproduction technology and have done so for many decades. Equating the donation of sperm or eggs to child removal is a completely novel argument.
As the postal survey goes ahead, we can expect to see more of these novel arguments from the “no” campaign. But it’s important to remember that legal change around marriage is historically slow, and that this debate is not about religious values, but community values. Specifically, it is about how we value LGBTI people, their relationships, and their families.