Although expensive, it is now clear the same-sex marriage debate will be resolved by a national vote at or after the next election. The polls, together with experience in the UK, France, Ireland, Norway, Belgium, New Zealand and Canada, suggest the law will change. There are, however, many people, including those with religious convictions, who are undecided or strongly oppose reform.

The debate has seen a good deal of confusion, much of it due to a failure to make two connected distinctions. The first is the need to distinguish religious reasons and doctrines shared by some protagonists, from arguments based on ordinary, everyday values such as fairness, humanity and respect for others, which transcend religious differences. The second is a failure to distinguish religious marriage, that is, marriage in the eyes of God – which is a sacrament defined by church authorities – from civil or official marriage, which is defined by the state. In practice they overlap, since a marriage valid in canon law must also meet the conditions prescribed by state law.

Dr Michael Jensen, rector at St Mark’s Anglican Church, Darling Point, author of a book on religious belief, and online critic of same-sex marriage, is aware of these distinctions and seeks to argue from more universal premises here: ABC The Drum: I oppose same-sex marriage (and no, I’m not a bigot) . He begins well, reminding readers that reformers have no right to assume opponents are bigoted, and the mere fact that most people support same-sex marriage is not a reason to change the law, citing surveys which show most people also support the death penalty.

In reminding us that politicians ‘should exercise leadership, not follow opinion’, he helps counter a popular view that majority opinion is a relevant moral test, not just of who has the right to make the laws, but what kind of laws they are entitled to make.

He offers another insight in a brief discussion of equality and discrimination:

‘… it is the duty of the law to judiciously discriminate and to appropriately recognise difference with, at times, unequal treatment of things that are not the same. It isn’t automatically wrong to discriminate per se.’

There may, as he says, be reason to discriminate, as when those who break the law are deprived of their freedom. So the important question is whether unequal treatment is unfair, and the test of fairness must keep in mind the insult which wrongful discrimination entails. Accordingly, we need to ask, not whether those who complain are treated equally but whether they are treated ‘as equals’ – that is – with equal respect as members of the same political community.

The point was illustrated in the 1954 US Supreme Court decision in Brown v Board of Education, which found that ‘equal but separate’ public schools were unconstitutional. The evidence was compelling that they worked to institutionalise a sense of inferiority in black students which prejudiced their education and future prospects, depriving them of the fair treatment implicit in the right to ‘equal protection of the law’.

Such introductory remarks help clear the way for Dr Jensen’s aim, which is to defend traditional marriage on grounds which do not rely on specifically religious doctrines, and should therefore appeal to any rational, fair-minded, person. The core of his argument is that supporters of same-sex marriage fail to see the merit of the ‘conservative’ position, which he describes as follows:

‘As we now understand it, marriage is not merely the expression of a love people have for each other. It is, or is intended as, a life-long union between two people who exemplify the biological duality of the human race, with the openness to welcoming children into the world. Even when children do not arrive, the differentiated twoness of marriage indicates its inherent structure ….(this) is the meaning of marriage that emerges from all human cultures as they reflect on and experience what it is to be male and female.

Now, I didn’t pluck this definition from the sky, nor is it simply a piece of religious teaching. It is the meaning of marriage that emerges from all human cultures as they reflect on and experience what it is to be male and female.’

As a statement of fact this may be true – it might be the case that most people, in most nations, have looked on marriage as exemplifying the biological difference between men and women, and as a precursor to having children. But the debate is about what the law ought to be, so it cannot be resolved by pointing to history; indeed, it has already been agreed that the fact that most people already have an opinion is beside the point. What is needed is a defence of their opinion which does not rest on religious doctrines.

It is not a moral value …

Dr Jensen thinks he has found this defence in a conservative view of history but, like so many political conservatives, forgets that it is at best a cautionary principle – a counsel of prudence reflecting a commonsense view that long-established institutions are likely to have benefits which are not obvious to a casual observer. It is not a moral value. Accordingly, if a law excluding same-sex marriage is discriminatory, it is no defence to insist it has always been thus.

This is not, it should also be noted, an argument about the definition of the word, or the proper meaning of the concept, but the assertion of a duty on government to preserve a traditional practice. But it is hard not to see this duty as reflecting a deeply religious view of the world – highlighted by the fact that both Orthodox Judaism and Catholicism oppose contraception. The following passages do nothing to dispel this view.

‘I prepare many couples for marriage each year. Most of them already cohabit. When I ask them about marriage, they almost always indicate that it is for them the beginning of a new family unit open to welcoming children.

A child is a tangible expression of our sexed twoness.

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.

This is precisely what many pro-revision advocates themselves argue: that a new definition of marriage would establish marriage as a new thing altogether. As Brandeis University’s E.J Graff puts it, a change in marriage law would mean that marriage would “ever after stand for sexual choice, for cutting the link between sex and diapers”.

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.’

But the public debate, as noted, is about civil – not religious marriage – and the state has no obvious duty to foster procreation, and no reason to enforce this sectarian idea on citizens. Moreover, and despite a respectful approach, these passages seem gratuitous. The idea that same-sex marriage will mean a triumph of sexual passion, emotional choice and ‘the will’ over more spiritual values ignores the central fact that it celebrates a loving commitment, meant to be permanent. In the end this exclusion of same-sex couples appears to come down to a belief that non-religious persons cannot truly love another.

What is, however, a contribution, is Dr. Jensen’s sense that the issue of discrimination must be resolved by clarifying the rationale of official or civil marriage, since this is the only way to decide whether excluding same-sex couples is unfair, not just different, treatment. This is crucial. It explains why civil marriage does not exclude divorced couples whereas Judeo-Christian marriage prohibits divorce and re-marriage (the Anglican Church appears to leave it to the discretion of individual ministers).

If we put these religious ideas to one side and go back to first principles, it is not hard to understand why a state founded on secular values might choose to honour and encourage the commitment which lies at the heart of the exchange of vows central to a civil marriage.

This is, I believe, the case Rodney Croome, a leading reformer, makes. He emphasizes that marriage serves ‘traditional family values’ here:
New Matilda: Marriage Equality Adds Up To Family Values Precisely what this means is not spelled out but if we agree that the essence of family values lies in an ideal of mutual love and support, to the exclusion of competing relationships, the claim is compelling. Even more so if we believe the state has a duty – arguably a foundation stone of any defensible political theory – to treat all citizens with equal concern and respect.

The commitment to a mutually supportive union, intended to be permanent, is a reason to treat marriage as an institution of unique value – something which any civilized society has reason to celebrate and encourage. But if this is right – if this is the best justification for civil marriage – it is prima facie unfair to exclude gay and divorced couples who make the same commitment.

Max Atkinson is a former teacher at the University of Tasmania Law School with interests in legal theory and international law.