By Martin Hanson
MARRIAGE is defined in Australia’s Marriage Act 1961 as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.
Like a romance novel, the legal definition implies but does not refer explicitly to sexual relationship.
This is understood in the context of “union”.
The relationship in marriage has this feature, a union extending to the physical union that arises in sexual intercourse.
We have before us the question whether marriage can sensibly extend to include homosexual relations and we need ask whether the fact that they do not result in the complete union in the manner of relations between a husband and wife means they should be excluded as a basis for marital life.
The current suggestion for change accepts difference in “union”, but says that people are “wired differently” and because we are all equal, the acts consequent upon that difference are, while different, equal.
This principle of equality means that there should not be a distinction between such sexual acts effectively enshrined in law.
This view of equality means that the Christian idea of marriage is hostile to democratic life.
Such a suggestion is contrary to the teaching of all the principal advocates and defenders of English speaking democracy and its history.
There are obvious consequences for religious liberty, which could now be said to permit anti-democratic ideas.
Such an idea of equality is in obvious need of more detailed and serious consideration.
The discrimination issue can be dealt with simply. The fact that recognition of the sexual union of a man and woman, as a pre-eminent expression of sexual capacity, worthy of peculiar recognition in our laws, would discriminate against homosexual relations is not to the point.
As the High Court of Australia pointed out in Austin v Commonwealth of Australia (2003) HCA 3, discrimination can lie in the equal treatment of that which is not equal as much as in the unequal treatment of equals.
Discrimination, it said, “is an aspect of a wider principle”.
Here the “wider principle” is democratic life and in order to assess the claim for same sex marriage we need ask how sexual function is related to it.
Democracy rests on the principle that all human beings are equal, this being an “inalienable” proposition true in all places and at all times.
As we all are equal, each of us has a duty to respect the common humanity of others, the “do unto others” rule.
This in turn leads to each having an equal claim to political rights, the right to life and the right to choose those who rule over us being the most obvious.
In a democracy all our political actions are to be measured against this principle.
What then of human sexuality?
The most obvious sexual fact is that humankind is divided into two sexes, male and female.
The fundamental issue, sexually speaking, for democratic life, is not the equality of all sexual acts but the equality of the sexes.
The democratic idea of sexual equality, one human nature, two sexes, is based on the view that our common humanity transcends the difference between men and women, each sex therefore being equal politically.
The nature of the sexual function however is more profound for a man and a woman can be completely united sexually.
Unlike any other human difference, be it skin colour or other physical difference, ability or disability, or whatever, it is only the sexual difference between men and women that can, of all human differences, be completely resolved.
The sexual union of a man and a woman living in a relationship the law currently describes as a marriage, is significant then because it, and it alone, of all sexual relationships manifests the principle of sexual equality.
Men and woman are of one nature because, among other reasons, they can give themselves to each other sexually, voluntarily, in a relationship to the exclusion of all others for life.
This is true of all such relationships regardless of whether the “marriage” is sacramental or registered under the Marriage Act.
This sexual unity complements the unity of heart and mind of husband and wife but it is more complete, a consummation of that unity.
The sexual union of husband and wife then represents the unity of human nature and the concomitant principle of human equality in an iconic manner.
Literally it not only represents it incarnates, “gives flesh to”, the democratic principle.
In reflecting on this we are compelled to recall Pope St John Paul II’s observation in the 1994 Letter to Families that sexual love between a husband and wife is Trinitarian, each maintaining their individuality but each unified in a greater whole.
This is perhaps a reference to the older analogy, marriage as a song, a hymn, sung in harmony rather than in unison.
What results is a beauty beyond the individual parts.
The significance of this unity is reinforced by the other relevant biological fact.
Only the sexual union of a man and woman can, of itself, give rise to new life, the sexual union extending to the cellular level.
This new life is to be properly understood in democratic terms as the continuation of the principle of human equality in time.
We may reflect that an act of sexual union that results in conception is the culmination of our sexual nature as it exhibits all the attributes of, and fulfills all the potential of human sexuality. However, the important point for democratic life is that the resultant family, man, woman and child, alone of all relationships completely encapsulates the principle of human equality as a truth for all places and times.
As the institution which alone personifies the substance of democratic principle the family, like that principle, is the proper measure of our society’s laws.
Here also lies the proper basis for the right to privacy.
The family incarnating as it does a principle beyond the law, has rights against society for those things necessary for its protection, not the least of which is the right to domestic privacy, most particularly sexual privacy.
While necessary for married life this right of privacy extends to us all, including those who are ‘wired differently’.
It is in this sense, equality in the right to privacy, that homosexual acts can be asserted as equal to those arising in the “union” contemplated in marriage.
This is not a denial of sexual connection but an acknowledgement that it is deeply private in nature and generally we have no interest in, or a right to know, the details of other people’s sexual activities nor should we speak publicly about our own.
Thus we see the good sense in the Marriage Act not referring explicitly to sexual union, things being otherwise plain.
The result is that rather than seek the extension of marriage, the protection of homosexual privacy finds its more fundamental basis and enduring assurance in the existing institution of marriage and the rights that arise from it.
Strengthen marriage and the right to sexual privacy and homosexuality will disappear as an issue with people being left alone to lead their lives and to be properly treated as our brothers and sisters in Christ.
This conclusion also resolves the issue of religious liberty.
The Christian understanding of marriage supports democratic life. That is hardly surprising. Democracy as we have recalled above rests on the idea that all human beings are equal in decisive respects.
This principle is true regardless of whether one believes, as Christians do, that each of us has a loving God as Father, or not.
As Clem Hawke, the Congregationalist Minister frequently reminded his future Prime Minister son Robert, “If you believe in the fatherhood of God, you must necessarily believe in the brotherhood of man”.
It is the latter which is important democratically and all of us, Christian, Jew, Muslim, Hindi, atheist, agnostic or “don’t care”, must accept that.
A religious freedom that permits “our fleshy religion” as Brisbane Archbishop Mark Coleridge said in his homily on the Feast of Corpus Christi, at Nudgee Junior College in 2012, to preach marriage as a sacrament between a man and a woman is not only no hindrance, but a firm encouragement to the maintenance and progress of a free society.
Martin Hanson is a Brisbane lawyer.