Last Thursday, Tasmania’s Lower House of parliament passed a bill which, if ratified by the Upper House next month, will make the Apple Isle the first state of Australia to legalize gay marriage.
It’s not going to happen: for one thing, the states have no jurisdiction over the Marriage Act, a Commonwealth law. That the bill even got as far as it has, is an artefact of Tasmania’s unique electoral arrangements. The Lower House (Legislative Assembly) uses the Hare-Clark electoral system, in which the state is divided into five electorates, each sending five members to the parliament. While affording an accurate reflection of the will of the electorate, Hare-Clark effectively guarantees that neither Labor nor the Liberals will be able to govern in their own right, and that that the Greens will hold the balance of power indefinitely. It also means that if ever I have cause to contact my state government regarding matters of legislation, I need to write five letters, to politicians of wildly differing persuasions. No easy task.
The Upper House (Legislative Council), by contrast, is composed of representatives of fifteen single-member electorates and, with one Labor and one Liberal member alongside thirteen independents (most of whom have party affiliations but regularly cross the floor), remains firmly conservative, as my own member’s inaugural speech amply demonstrates.
In the unlikely event that the bill passes the Upper House and is gazetted into Tasmanian law, preparations are already being made for a High Court challenge, from a number of sources, including the Australian Christian Lobby, and (possibly) the Federal Government itself. Gillard has painted herself into a corner on this issue, declaring that “marriage is between a man and a woman”, and angering many gay marriage activists; this despite her undergraduate dalliances with groups holding diametrically opposite views on the subject, and despite, as National President of the Australian Union of Students, supporting an AUS motion declaring 1983 to be “The International Year of the Lesbian”.
In one way, it is quite symbolic. Tasmania, politically separated from New South Wales in 1856 as the colony formerly known as Van Diemen’s Land, inherited its statute on the matter from English Common Law, which in turn dates back to 1533, when Thomas Cromwell (great-great-great uncle of Old Ironsides and Chief Minister of Henry VIII) pushed through the English Parliament An Acte for the Punysshement of the Vice of Buggerie. The original punishment for offences against this law,
…the offenders being hereof convicted by verdict confession or outlawry shall suffer such pains of death and losses and penalties of their good chattels debts lands tenements and hereditaments as felons do according to the Common Laws of this Realm. And that no person offending in any such offence shall be admitted to his Clergy…
was not softened (to life imprisonment) until 1861, that is, five years too late to make any difference to homosexual Vandemonians. Indeed, as late as 1997, sodomy in Tasmania remained a criminal offence, punishable by up to twenty-five years in prison. Pressure for change did not arise until the mid-1970s, when the Tasmanian Homosexual Law Reform Group was founded by a then-unknown Launceston doctor named Bob Brown. Being disappointed by the indifference to change by successive state governments, it finally took an appeal to the United Nations Human Rights Committee by Tasmanian citizen Nicholas Toonen, who argued that the state law proscribing homosexual acts violated his right to privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR), to which Australia was signatory. He also argued that, since the law covered male homosexual acts but not lesbian acts, it also violated Article 26 of the same Covenant.
In 1994, after three years of bureacracy and delays (during which time the state government pressured the Tasmanian AIDS Council into sacking Toonan from his position as General Manager), the UNHRC upheld the complaint; the subsequent refusal of the Tasmanian government to change its law led to the Keating Federal government passing the Human Rights (Sexual Conduct) Act 1994, which invalidated the Tasmanian statute. After a failed High Court challenge to the constitutionality of the Federal Act, the state law was formally repealed. Tasmania thus became the last state in Australia to legalize homosexual acts between consenting adults.
From a Libertarian perspective, it boils down to this: sexuality is at the core of human existence, one of the most basic attributes by which we define ourselves. This makes it a natural target for totalitarians, be they Church or State. By controlling human sexuality, the Leviathan controls us. This makes any State regulation of sexual behaviour between consenting adults anathema to anyone upholding the liberty of the individual. It is to me, however, ironic beyond words that it took an appeal to as one-world, undemocratic and totalitarian a body as the United Nations to guarantee one of the most fundamental liberties a human being can have.
So much for the legality of homosexual acts. Marriage, however, is another issue entirely, and I am convinced much of the brouhaha surrounding the current debate centres around the conflation, deliberate or otherwise, of these two very separate subjects. You aren’t born married. You can make a conscious and voluntary decision to marry. Or to stop being married. This is very different from sexual orientation, which you do not choose, but which chooses you. One concerns what you do; the other, what you are.
I can’t speak completely objectively about marriage, of course. Nor can any of us. Whether or not you’re married, or whether your parents were happily married, unmarried, badly married, separated, divorced, or even unknown to one another, your own unique life experiences will colour your views on the topic. As with so many issues that touch on the personal, there is a tendency for any debate to be shaped by defensiveness, as if somehow any views contrary to our own represent a potential threat, or an invalidation or belittling of our own life story. And while I’m not a psychiatrist, I strongly suspect that this subjective and emotional need for validation and inclusion, rather than an argument from higher principles, is behind a large part of the push for legalization of gay marriage. A false dichotomy is created, wherein anyone who even questions the advisability of changes to the Marriage Act is deemed ipso facto a homophobic, bigoted, ignorant, fascist, bible bashing, knuckle-dragging…
Libertarian? I’ve been on the receiving end of more than one spray of this kind. And strangely enough, never from gays. In fact, most of the gays and lesbians I know are remarkably benign on the whole issue; those in relationships have no interest in marrying, are completely comfortable in their own skin and neither need nor want any official state sanction of their private affairs; indeed, as one gay remarked to me, why would he want to buy into an institution which for thousands of years has been the domain of the Church, for whom poof-persecution has been a perennial recreational activity, or even spectator sport. Many of their loudest and most virulent anti-gay moralists have turned out to be closet queers themselves. Just goes to show.
Which brings me to my next point: the slippery slope. I’m taking the liberty of cutting and pasting from something I wrote last month over at Knotted Prop:
One of the issues being put up against gay marriage is the “slippery slope” argument, which has some merit. Already on the fringe of the LGBTXYZ (placeholders added for future additions) movement down here is something calling itself the “poly community”, meaning polyamorous. Essentially, they are saying that if a man and two women, or for that matter, six men and six women, want to set up house and share love equally then they should not be unfairly discriminated against by being excluded from the institution of marriage. Although seen by some as a stalking horse for the Muslims, the “poly” community actually goes much further in its demand for what it regards as equality under the law.
Then there’s paedophilia. Now, no paedo activist is ever going to come straight out and demand the right to have sex with children and even marry them. What they will do instead is gradually push for a lowering of the age of consent. “If sixteen is OK, then why not fifteen? If fifteen, then why not fourteen?” And so on. If they play their cards right (and they have), they can make it appear as though this push is actually coming from children themselves! Seeing as the prophet Mohammed married a nine-year old, the paedos would seem to have long-range and far-reaching plans in this area. One former politician in this country is widely rumoured to have told friends he wants the age of male homosexual consent lowered to ten. Which sums it up.
After that, the floodgates open. Already respected academic Peter Singer, to whom I have referred at my place several times, has written approvingly about what he calls “zoophilia”, which you and I know as bestiality. How unjust is it to forbid a pop star and a chimpanzee who truly love one another from becoming married? Incestuous marriages are the next step after that; once you start breaking taboos so old that we have almost forgotten why we have them in the first place, it’s impossible to know when to stop breaking.
In all of this, those agitating for liberalization of the law are counting on the unwillingness of lawmakers and the public to draw a definite line, and ridicule anyone who suggests they should, or that a “slippery slope” even exists at all. As a Libertarian, I’m all for less laws that are not specifically connected to property rights and the protection of life and limb. But there’s an issue of responsibility here as well. The institution of marriage is a societal bargain; rights are conferred on those who enter into it, in exchange for responsibilities; primarily, fidelity and the good upbringing of children. Marriage in its traditional definition gives a woman a secure material environment, beyond her years of reproductivity and physical attractiveness; a man gains exclusive sexual access to his wife, and a guarantee of paternity of the children he works to raise. Rights and responsibilities, the same mantra I’ve been repeating for years.
What we are witnessing today, however, is a push for rights, without a corresponding guarantee of increased responsibilities: irresponsible rights. As much as we regard “love” as fundamental to marriage, the institution and societal bargain of marriage isn’t predicated on love at all. Nor is it designed for the purpose of “inclusiveness”, or to otherwise make people feel better (or at least, less worse) about themselves. Marriage is designed for the purpose of rearing children, and socializing them so they will enter adulthood as functioning, positive members of society and not asocial menaces. Which is exactly what we are seeing in society today, not uncoincidentally a generation after the institution of marriage first began to weaken in the West.
As to individual choices, who are we to judge if two sentient adults (or three, or six) who love each other want to set up house together? Good luck to them. And God knows, there are enough terrible conventional marriages around, and enough healthy gay relationships, to take seriously those who want to at least look at the marriage law as it stands. If it leads to a reduction of some of the more silly traditional bigotries, so much the better. But when you start tinkering with ancient institutions, it’s worth remembering exactly why they are ancient, and why they have stood the test of time.
The slippery slope argument has already been made far more eloquently by others; the most cogent observation about the guarantees earnestly made by gay marriage advocates, that any changes to the Marriage Act will definitely end with their type of relationships, is that those guarantees are simply not theirs to make, as they are made on behalf of other groups whom they do not control, and whose interests lie precisely in not imposing any such limitations. You cannot set a precedent on your own behalf, and not expect anyone else who sees potential advantage in invoking it, to portray that precedent as a general principle and not a special case.
After all, if you wish to have tomorrow’s society accept and permit something which it condemns and abhors today, how would you go about it? You wouldn’t just march on down to your parliament and demand that politicians change the law. No, it would take a decades-long process, involving working through the arts and the media, gradually “normalizing” whatever it is you are trying to persuade society to accept. Homosexuality was barely mentioned in western literature before the 1960s; E.M. Forster’s Maurice, written in 1914, was not published until the author’s death in 1970 at the age of 91; Victim (1961), starring Dirk Bogarde as a lawyer facing blackmail, was the first feature film which openly canvassed the topic, and in fact the first English-language film which even scripted the word homosexual. The arts are always in advance of general public opinion in matters of progressive social change; six years after the cinematic release of Victim, the UK parliament passed the Sexual Offences Act (1967), decriminalizing private homosexual acts between consenting adults.
Does this history provide a roadmap for others wishing to legitimize, or “normalize”, their private behaviour, as a precursor to changing the law? Or are our laws underwritten by a core, absolute moral code which precludes this? If the latter, and yet we go ahead anyway and alter the definition of marriage, then we have no choice but to recognize that the definition of marriage that has persisted for thousands of years was always wrong, and that untold suffering has been wrought upon innocent victims as a result. If the former, then it is highly likely that, one hundred years from now, anyone opposing paedophilia will be treated with the same contempt and derision as those who today continue to oppose the legalization of homosexual acts between consenting adults. I simply can’t see any middle way between the two.
I’m personally fortunate in that my own parents were happily married for forty-three years, and indeed four of my five siblings are so today. None of them are gay, though if they were, it may possibly have had some impact upon my views. But today (it being Fathers’ Day here in Australia), I am compelled to reflect upon the fact that the institution of marriage, founded as it is upon a balance of rights and responsibilities, in the final analysis doesn’t exist for the benefit of adults at all.