Nurturing Justice 3 (2008)
As we know the widespread public agitation for "gay marriage" is not just a local phenomenon. It constitutes a significant movement that spans the globe. The "gay marriage" movement coincides with the ongoing need to change the law and its administration to take account of the greater complexity and differentiation that we witness in our social life every day. And that is why the pronouncements of those advocating changes to the laws that relate to marriage, need to be considered carefully and with deepening discernment. We indeed face complex issues with ongoing development of policy implications. The question we consider here - "Can a redefinition of marriage bring justice?" - is an important one and one which we should ponder before examining all the policy implications and giving a considered answer.
Why do we need to consider this particular question? Well, before we consider the empirical problems that will arise from expanding the legal definition of lawful marriage to include homosexual friendships, let us first gain some idea of how the legal definition is already contracted in the present case. There is a significant and important contraction in the legal definition of marriage which is already embedded and enshrined in our laws and legal system. Consider first, those heterosexual unions which are already illegal: I don't only refer to under-age unions but more specifically to variant forms of marriage - polygamy, polyandry, and various forms of group marriage. We have to ask ourselves: Are these marriages? Are they any less marriage because they are deemed by our laws to be illegal? Is there an implicit violation of the rights of those involved that has been perpetrated by laws that refuse to recognise these as lawful marriages? Clearly, these relationships are marriages. And just as important, the civil rights of those involved have not been violated. The law does not confer a "right" to be married, but recognises the rights of those consenting to enter into what is lawfully defined as marriage. These marriages are not lawful marriages. They are outside what the law considers to be lawful marriage and that pertains in this (and other) jurisdiction(s).
In our complex society, we may come across evidence of degrees of tolerance for families and households that are based on polygamous or (perhaps less common) polyandrous arrangements. The way social welfare is administered in relation to those involved may, at times, appear to "turn a blind eye" to such non-legal "marriages", although those involved in social welfare programmes that focus on child protection will also be sharply aware of the delicate limits that accompany such administrative tolerance. We should not presume that people involved in non-lawful or illegal forms of marriage are by definition more prone to sin than "normal" folk. Such households may in fact be bastions of civic and other virtues. We may consider such forms of marriage to be morally wrong. But we need to exercise discernment and in our public discussion of the institution of marriage and its variant forms, as well as the way friendships contribute to our social life, we avoid blurring ethical and legal judgements that we must make all the time when such circumstances come to our notice. The exercise of public (political) discernment with respect to such arrangements does indeed require the wisdom of Solomon.
That then identifies one side of marriage law that has to be considered. There is a limit (a contraction shall we say) established in the law that specifies what is legally permissible as marriage. Now let us consider the other side of legal reform the expansion of what is deemed permissible by the law.
There has been a sustained global advocacy of "rights" in Western countries and beyond over the past decades. This has coincided with greater sophistication in the way public debate handles issues which hitherto were regularly sidelined by prejudices about what "appeared" to be the case. It seems that, unlike previous generations, we are no longer beholden to certain actions, and holding certain opinions in order to "keep up appearances". Consider the changes to the way women's rights have developed, and the recognition of the rights to full citizenship of those from ethnic minorities. The underlying rationale of public moral discourse has changed. Greater care needs to be taken lest we as citizens ride roughshod and unfairly misrepresent those with whom we might disagree by cutting them out of the debate with blurring misrepresentation. Another word for that might be "slur".
And it cuts all ways. Prominent political advocates for "gay marriage" regularly undermine their own argument by the pre-emptive tactic of asserting, without evidence, that opposition to their proposed expansion of the legal definition of marriage, is inherently homophobic. Previously, strident moral opposition to homosexuality, gained leverage by language that embarrassed the small minority of "gay rights" advocates. These days, the balance in public debate seems to be reversed and "homophobic" is the pre-emptive term that also presumes to diagnose the underlying source of the resistance to such legislation which, according to its advocates, is "progressive". The term "progressive" here coincides with the legal search for an expanded definition of "lawful marriage", and is often ideologically linked to an process from women's suffrage to "black rights" with "gay rights" the next chapter in the alleged historical march of freedom.
So one can see how it is somewhat difficult to answer our original question in a straightforward way. The answer is, I suppose, "It all depends!" There has been a redefinition that has occurred over centuries making monogamy the moral norm for many societies. We don't hear any arguments for redefining the legal definition of marriage to include these variant forms, even if they do (empirically) exist. The law, and the corresponding regulations must, from time to time, be amended. And the laws for marriage can not be excluded from this reconsideration. And so when changes are proposed, opposition can be varied. But, at this point, it seems, "gay marriage" advocates are not only proposing a reform of marriage law for their moral purposes. This is what they do propose. But they are also implying a change to the way we view the law in its relationship to marriage as a male-female institution. The advocates argue in a peculiar way, suggesting that the "banning" of gay marriage is a violation of human rights, a violation and hence retraction of what is due to all citizens.
The argument is specious for various reasons, not least because marriage itself is not a civil right, nor is it a contractual relationship that is created by government legislation. Moreover, there is no banning of the freedom of people to live together and, if they wish, to talk about their domestic arrangement as a "marriage". Freedom of speech is not violated because the law does not view a homosexual "civil partnership" as a (heterosexual) marriage.
In legal terms it is a matter of justice that marriage between a man and a woman be legally recognised for its distinct institutional characteristics - it is recognised as a life-long committed bond between a man and a woman that draws a moral limit around the sexual relationship and thereby is also viewed as a basis for raising a family - the law has to define the marriage institution in this way in order to protect the rights of those so married. That is not just a legal fiction created by those who are "homophobic" who wish to exclude homosexuals from their "rights" to this part of the civil realm. It is not a part of the civil realm. Consequently, it would simply be a legal error based upon an empirical confusion of marriage as simply a privileged form of friendship, were homosexual friendship to be legally redefined as marriage (or a potential marriage) that depends ultimately on the wants of the same-sex partners involved.
But "gay marriage" does, at least, seem to be a legislative possibility. The fact is legislation can err seriously, no matter how pompously "progressive" politicians and others may argue their cases. The legal system can indeed make wrong decisions. Reality is not ultimately defined by what the law says as we found with respect to South Africa. For post-apartheid South Africa it has indeed been a matter of the legal redefinition of marriage that has brought a greater measure of justice into that society by a reform that overturns all the remnants of the legal error that was made by banning so-called mixed race marriages. But it would also be a serious legal error if homosexual unions were to be redefined in law to be accorded the legal status of marriage. Just as one does not have an automatic legal (or moral) right to something or other, simply because one has a profound longing for it, so also law is limited in its powers - the law has no ability to create the marriage institution itself nor does it have the power to turn a homosexual friendship into a form of marriage. Any such legal "reform" would merely foment legal confusion and moral uncertainty at a public-legal level - that confusion and uncertainty would not only be about marriage, nor yet about homosexual friendships, but also about what people can think and say and the real states of affairs that the law has to recognise as part of its genuine task of ensuring public justice.
Nurturing Justice seeks to encourage a sustained Christian political contribution by affirming our God-given calling to build sustainable human communities which will promote life and strengthen our interdependence - the way of public justice will help us avoid the myths and contradictions of human autonomy. But a Christian understanding of the myths and contradictions of human autonomy, as they are accepted and enshrined in changes to the law, requires a comprehensive political philosophy, one that finds its point departure for seeking justice in the gentle and merciful rule of Jesus Christ, the ruler over all of the earth's political regimes and the peoples thereof.
September 2008 © The contents of this email are copyright. Documents may be photocopied or retransmitted in their entirety but not otherwise reprinted or transmitted without permission. "Nurturing Justice" is a project to encourage Christian political reflection based upon wise and loving civic participation. Comments are welcome and should be sent to email@example.com