In the midst of a lot of sound fury, the value of which readers will have to judge for themselves, we here make our own contribution. We note the current attempt to change the Marriage Act to include homosexual and other "committed life-long partnerships" within the Act's definition of marriage. This political effort misunderstands public law, marriage, civil rights and the Marriage Act itself. Perhaps it is time to step back and accept that this political debate is evidence of a serious problem about our own impoverished political understanding. That is what this edition of NJ assumes.
The arguments put forward by proponents, and those opposing the change, can easily fail to properly address the purpose of the Marriage Act. Are we predicating our contribution (pro- or con-) on a right understanding about what the definition of marriage in the Marriage Act is trying to do? That definition is not to define marriage as a right; the Act is not about denying a "equality" or "civil rights" to un- or non-married people whose relationships are not covered by the definition. That definition is there in the Act as a legislative attempt to define lawful marriage for this polity. It is seeking to exclude, but it is forms of marriage which it excludes. Within this polity it is not lawful to have a monogamous marriage. The intention of the Act is to define marriage in terms of a monogamous union of a man and a woman for life. Polygyny, polyandry and polygamy are thereby defined as outside the definition of lawful marriage, as outside the law. The Act has the purpose of defining lawful marriage.
To want to change the definition of marriage in the Marriage Act, to include homosexual and non-marital committed-for-life-partnerships, is therefore to try and change the purpose of the Act. The political campaign therefore becomes an attempt to change reality by making a change to public law. The changes to the definition as put forward imply a fundamental change to the purpose of the Act, a change which would bring marriage into the civil and political sphere and make it henceforth subject, as an institution, to the over-riding normative demand of "equal rights" which should characterise all Government's legislation.
But marriage is not brought into existence by legislation. The attempt to attain for homosexual partnerships the legal identification of marriage is a legal error based on an empirical mistake.
[For explanation of this wording see "Homosexuality" of "Guidelines for Government and Citizenship" of the Center for Public Justice, Washington DC, USA, at pt 5, initially formulated for political debate in the US, a helpful statement influencing my approach].
Still, we have to take note of how, in recent decades and in many legislative areas, a expanding and greater measure of justice has been achieved in the granting of 'entitlements' in regards to all kinds of matters that relate to the support, given and received, in long-term supportive relationships of both a marital and non-marital kind. Indeed, part of the political struggle has been with the unjust administration of such 'entitlements' that tried to justify its approach by an exclusionary appeal to the marriage-bond - previous 'recipients' of this lack of due legal recognition were, as we know, women whether mothers or adult daughters, whose public and other social status was often defined in terms of what had previously pertained when most, if not all of social life, was built around membership in family and extended family (clan), when such was assumed to be the social environment in which a person's independent identity flourished. It has taken decades, if not centuries, for public life to unfold (over generations) as a venue from which an independent personal identity may be achieved. It is also in that historical context that we should interpret, and give due regard to, the growth of 'entitlements' in the public sphere.
We have now in this country for a couple of decades been confronting a legal and political situation in which the justice of such 'entitlements' has required adequate legal recognition of various kinds of long-term supportive relationships. There is no doubt that for these to be given their due - in all kinds of ways - they need to be appropriately defined and coded. We can even say that serious injustice is perpetrated when 'entitlements' are denied by an administrative appeal justifying 'non-entitlement' on the basis of a relationship in which the person or persons were not even involved. And so Government and citizens together have had to learn how to develop lawful codes which give due respect to the relationships in which people are engaged in mutual support, rather than judging them in terms of relationships in which they are not involved. Such an approach, involving the appeal to the definition of marriage as a norm for non-marital relationships, is an unjust administration of entitlements and in many respects it has now been, or is in the process of being, overcome.
We might also add that the administrative use of a definition of lawful marriage in this way has caused significant public confusion about the nature of the marriage institution itself. We might even want to explore how it may have harmed marriage's rightful reputation as an institution that deserves public respect.
But 'entitlement' injustices have been overcome without it being shown in any way whatsoever that it was the definition of marriage itself which was the root of the injustice. It is not the definition of marriage as a male-female bond for life that was unjust. It was rather an unjust appeal to this definition of marriage to justify an exclusionary approach to entitlements in the administration of justice.
And that is why changing the Marriage Act, as is proposed, simply confirms a serious misunderstanding of the long-term legal processes that have been in train for decades, let alone marriage, let alone the Marriage Act itself. Is this debate not evidence of our own poor and inadequate understanding of marriage? We here confront our own national confusion about such public-legal instruments as the Marriage Act and what a Marriage Act can do.
For those seeking a Christian political option, this comes as
yet another reminder of what the prophet Micah calls us to do (6:8). The way of
the Lord is the doing of justice, which must include a righteousness that
gives due respect to the marriage institution. The way of the Lord calls us to
love kindness, just as the Lord has been kind to us, embracing all fellow
citizens as neighbours whom the Lord has sovereignly brought across our path.
We are promised that this is the way in which we will find ourselves walking
humbly with Jesus Christ Himself.
How can a legal redefinition of marriage bring justice? Sept 2008 &
Body politics (1) Nov 2007 &
Body politics (2) Nov 2007 &
Conscience votes and the
withering of conscience - Nov 2006
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Nurturing Justice is written by Bruce Wearne, Point Lonsdale, to encourages a sustained Christian political contribution by seeking justice in the gentle and merciful rule of Jesus Christ, the ruler over all of the earth's political regimes.
July 2009 © The contents of this email are copyright.
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reprinted or transmitted without permission. "Nurturing Justice" is a
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