The time has come for Australia to provide for same-sex marriages. This would reflect the countries with which we compare ourselves, including the US and the UK, and it would acknowledge the contemporary meaning of marriage in Western liberal democracies.
As I write, however, progress has stalled. It remains to be seen whether Australia will have a plebiscite on same-sex marriage in early 2017. Federal parliament is considering the issue, and political parties are negotiating. Something that ought to be easy has become very difficult.
A plebiscite is unnecessary, since the federal parliament has undoubted power to amend section 5 of the Marriage Act to change the definition of “marriage”. That is exactly what happened when the definition was last altered by parliament, as recently as 2004, to exclude the possibility of same-sex marriages. On that occasion, the Howard government’s action did not need a specific vote by the public.
Michael Jensen’s case against same-sex marriage
You need to squint pretty hard to see what arguments can be put against same-sex marriage in Australia without relying on religious morality or appealing to bigoted dislike of gay men and lesbians. On 28 May last year, however, Michael Jensen wrote an op-ed piece for The Drum to set out what seems to be a core social conservative argument.
It’s worth dusting this off to take another look. If a plebiscite does go ahead, whether next year or at any other time, something like Jensen’s case will likely be put in support of a “No” vote.
Jensen almost pleads with readers not to regard him as merely a bigot. In fact, I know Michael Jensen - albeit very slightly - and I doubt that he harbours any secret hatred for gay men and lesbians. The problem isn’t bigotry in the ordinary understanding of that word, and I understand Jensen’s concern that he might be simply demonised. Too much of that goes on in public debate.
At the same time, when I read and re-read his argument as published by The Drum he seems to be living in an earlier era. Central to the argument is that providing for same-sex marriage would alter the very meaning of marriage as a social institution. I can understand this concern up to a point, but the horse has bolted.
In a trivial sense Jensen is correct. The necessary alteration to section 5 of the Act would - obviously - change the definition of marriage in Australian federal law. But of course, that also happened in 2004.
To be fair, Jensen might say that the 2004 amendment to the Marriage Act merely clarified something that had previously been understood. By doing so, it shifted the onus to anyone wanting to introduce a new concept of marriage into the law. Let’s grant this point for the sake of argument. In the end, I doubt that it really matters.
At any rate, Jensen could plausibly claim that the understanding throughout Christendom, during the Middle Ages and continuing into the emergence of European modernity, was of marriage as a heterosexual and monogamous relationship. This idea of marriage was thus the one exported to British colonies, such as those founded in Australia during the eighteenth and nineteenth centuries.
Jensen could then go on to emphasise, as he does in his contribution to The Drum, that marriage was, at least in this European and Christian tradition, about the union of an individual man and an individual woman who intended to have children.
However, the fact that this was a traditional European and Christian view doesn’t get us far. At the heart of the current controversy is whether such a view should prevail in future.
Religion, reasons, rhetoric
Jensen needs to say more, and of course he does. He claims that he is not putting a religious position, but if it’s not religious what is it? He employs some esoteric language that seems astonishingly contrived in a secular context. He writes, for example, “A child is a tangible expression of our sexed twoness.”
What, here on Earth, does that mean? As far as I can decipher it, Jensen is stating that we are a species which reproduces sexually (unlike, say, protozoa and certain starfish). Fine, but no one I know of disputes this.
Putting the point in a strange way is presumably meant to give it a kind of moral overlay or resonance, as if the facts of sexual reproduction among mammals are not merely established by science and common experience but also possess a metaphysical or theological oomph. If so, that’s not a claim Jensen can rely on while also denying that he is arguing from a religious viewpoint, or at least something very like one.
Jensen continues: “To remove the sexual specificity from the notion of marriage makes marriage not a realisation of the bodily difference between male and female that protects and dignifies each, but simply a matter of choice.”
Again, it’s hard to get my secular head around this sentence. But here’s my best attempt: our species, Homo sapiens, is (leaving aside a small percentage of intersex people) a fairly obviously sexually dimorphic one. Or more straightforwardly still: men and women have some significant biological differences. Some people may deny that we’re a sexually dimorphic species, but if so their number is … small. Again, this point isn’t news to anybody who’s not overthinking it.
But nothing follows automatically, from these familiar biological facts, as to whether or not the social institution of marriage should be available only to couples consisting of one heterosexual person from each of the two standard sexes. If we are capable - as we obviously are - of setting up the institution of marriage in a way that caters to personal choice more flexibly, why not? And how is human sexual dimorphism - or how are men and women - less protected if and when we do so? (Notwithstanding same-sex marriage, there will still be men and women unless something very drastic is done via genetic technology!)
It’s also true, of course, that we are a species whose members have varied sexual orientations. So, why shouldn’t our social institutions take that fact into account into some way?
Before I leave the topic of human sexual dimorphism, we need to be careful just how much weight we give to it in policy deliberations. It’s not entirely irrelevant to policy that men and women really are different in certain ways. But at this stage of human history, it is often wiser, and more to the point, to accentuate the similarities between us. Otherwise, it becomes tempting to give the differences an exaggerated emphasis (and, indeed, to be too quick to make assumptions about just what the differences are).
In particular, there’s plenty of work still to be done in response to the key feminist insight that men and women are cognitive equals. Doing that work is a good way to “dignify each”. In the past - and even now - the contrary assumption has unjustly excluded women from a very broad range of social positions and roles.
Though Jensen is not a bigot, and although he attempts to be civil and scrupulous, he can be criticised for some of his rhetoric. He approaches the role of propagandist when he states: “Instead of the particular orientation of marriage towards the bearing and nurture of children, we will have a kind of marriage in which the central reality is my emotional choice. It will be the triumph, in the end, of the will.”
The last sentence of this really adds nothing of substance, but it sounds very sinister: “Oh no! It will be … the triumph of the will!”
More seriously, although I don’t know whether this was intended, Jensen’s wording evokes the spectre of Nazism via the title of Leni Riefenstahl’s 1935 propaganda film, Triumph des Willens (“Triumph of the Will”). Whether or not Jensen’s (or my) readers are familiar with Riefenstahl’s brilliant, histrionic, terrifying film, a Nazi-like tinge to the phrase “triumph of the will” has entered the English language. (If not, what exactly is so bad about triumphs of human will?)
It would be helpful if all parties to the same-sex marriage debate managed to avoid suggestions that good-faith opponents are Nazis, resemble Nazis, or have anything to do with Nazis.
Once the rhetoric is stripped away, why shouldn’t my decision to get married, or not, reflect my values and choices, “emotional” or otherwise? Jensen’s suggestion here, that there is something wrong with individual choice, is highly illiberal. We might wonder why the law should override individual choices unless some kind of significant harm to society can be demonstrated. As to that, Jensen himself seems to accept that no such harm is in the offing. He states, early in his op-ed, that introducing same-sex marriage will not be “the end of the world for me.”
As best I can reconstruct it, then, Jensen’s argument against same-sex marriage comes down to a claim that European Christian marriage (and perhaps marriage in other cultures) traditionally mirrored and represented the fact that Homo sapiens is a sexually reproducing and sexually dimorphic species. That is, marriage involved opposite-sex couples who intended to have children via (of course) sexual reproduction. Therefore, the argument seems to conclude, the institution of marriage should always be like that.
This simply doesn’t follow as a logical argument. Something more must be being assumed, but if so Jensen doesn’t explain what it is.
Living in the past
A problem for Jensen and others who share his views is that the nature of marriage has already changed. It is already a matter of “emotional choice” whether or not to get married. It is already possible, furthermore, to have children outside of marriage without the traditional stigma of illegitimacy.
Nothing prevents a heterosexual couple from having a traditional sort of marriage, oriented mainly to children, if they want one, but already this is an option rather than a social obligation. Already, many straight couples get married with no intention of having children. They have various personal reasons. Some might find the status of marriage legally and socially convenient, and they might find the idea of marriage romantic - yet not connected, for them, with procreation and child rearing.
Far from being socially disastrous, such developments in freeing up the nature of marriage have given many people more ability to live as suits them best. With highly consequential life decisions and plans such as this, one size does not fit all.
A more accurate picture than Jensen’s of recent and current social change is that same-sex marriage is not putting pressure on the institution of marriage to become something different from what it was. At least in the main, the causal arrow goes in the opposite direction.
That is, same-sex marriage became more thinkable in the last few decades partly because marriage itself was already changing in ways that made the idea of same-sex marriage seem more coherent and attractive.
Over the past two centuries, and increasingly over the past fifty or so years since the Sexual Revolution, the institution of marriage has been transformed. Marriage, as once understood, was a form of social, and especially sexual, control. To be more specific, it especially controlled the sexuality of women. Among the wealthier classes, it assisted economic ends such as estate planning. Marriage was often far from a romantic or companionable relationship.
But in Western democracies, at least, marriage has evolved for the better. The current ideal of marriage is an equal union between two people, involving love, sexual and other intimacy, and companionship. We have, moreover, abandoned the concept of marriage as a kind of licence for sexual experience, which was otherwise forbidden by morality, if not by law; and we increasingly understand marriage as not necessarily including children. Marriage has become a kinder and far more flexible concept.
The institution of marriage retains deep emotional significance for most Australians. But our predominant understanding of marriage is now one from which gay men and lesbians cannot reasonably be excluded. It’s time to let them in, but this is not meant as a mere slogan. Marriage has changed until it no longer makes sense to keep gay couples out.
Conservatives should, as I’ve suggested in the past, take comfort that the institution of marriage has survived the social upheavals of the last half-century, and that so many couples, including gay and lesbian couples, still want to participate in it.
However, arguments against same-sex marriage - when not relying on religious morality or simple bigotry - require that we view the institution as something that it no longer is and cannot easily be again.
Arguments such as Jensen’s are not apt for conserving marriage as it has become widely understood. They are arguments for turning back the clock to earlier ideas of marriage. Such arguments are losing their appeal in Australia, and especially any appeal to younger Australians.
Once more, I don’t call Michael Jensen a bigot and I don’t wish to smear or silence him. But he and others with similar views are living in the past. In that way, their arguments are more reactionary than conservative.
Authors: Russell Blackford, Conjoint Lecturer in Philosophy, University of Newcastle