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SSM – Not Again

Friends, this is a post I’d prefer to avoid. Same-sex marriage (SSM) is not something I want to focus on. But we don’t always get to choose which issues to discuss. And SSM really is the issue of the times. Everyone agrees, even if they’re weary of the topic.

So I’ve been asked by church members about a recent opinion piece on SSM on The Drum – the (Australian) ABC’s Opinions blog. The article has attracted plenty of attention from Christians and others, much of it favourable.

It’s not hard to see why. The author – Andrew Tiedt – nails his colours to the mast. And he does it with a really friendly tone. Here’s his opening paragraph…

I’m a Christian. I go to church, I lead a Bible Study once a week, and I believe in the Bible and what it says. Consequently, I believe that homosexual sex is sinful.

In this respect, I am in exactly the same position as Mr Tiedt.

And in what follows, I stress that I’m speaking primarily to Christians who share the same beliefs: the authority of Scripture and therefore, a belief that homosexual sex is sinful. I’m happy to talk to others, of course, but this is a reformed evangelical blog and the aim of this article is not to debate the foregoing.

Given Andrew Tiedt’s views above, it might surprise you that the rest of the world is commenting positively on his article. But his headline explains why…

Legalise Gay Marriage, What’s the Harm?

And here’s his conclusion…

…I am not the only person in the country who thinks that you can believe homosexuality is sinful whilst also believing that gay people should be allowed to marry.

 

To all the homosexuals I am friends with, both in real life and online, as well as all the homosexuals who I haven’t met yet, I have this to say: Go! Be happy, and do what you want with your lives.

 

I have my beliefs. You have yours. We disagree, and that’s fine. I don’t need your approval to validate my beliefs, as I am sure you don’t need mine. If I ever get the chance I would love to tell you why I believe what I do, and I would love to return the courtesy.

 

I hope that one day you have the chance to marry.

[...]

We have legalised divorce. We have legalised homosexual sex. Adultery and sexless marriages have been around for centuries and the institution of marriage appears to have survived just fine.

[...]

Christians: there are gay people. LOTS of them. There always have been, and there always will be.

 

Most of them go about their lives quietly. If they are allowed to marry, it will not change anything. ANYTHING! So relax and let them get on with their lives. It’s not going affect your life, your faith or your morals in the slightest.

It’s an appealing argument, and I’ve already said I’d prefer to be talking about almost anything else. But as readers of this blog (or its predecessor) know, as a Christian, I have advocated a different conclusion, that we should not legislate in favour of SSM.

And I think Mr Tiedt’s friendly article is built on a couple of significant errors to do with his application of the concept of illegality and legality.

His basic claim is that…

Not everything that I think is sinful is illegal. And neither should it be.

He points out that there’s all sorts of behaviour many consider immoral, but which our society does not criminalise; not only adultery or homosexuality, but also gossip, deceitfulness, hatred, and prejudice.

In fact, Mr Tiedt, who is a lawyer, claims of his latter four examples that…

Every single one of them is 100 per cent legal.

But this seems to be a careless and imprecise statement.

I suspect some forms of gossip could fall into the category of slander and may be illegal under defamation laws. Certainly perjury and slander (where the statement is shown to be defamatory since untrue and harmful) are two forms of deceitfulness which are illegal in Australia.

Likewise, Australia has some quite tough hate speech laws making illegal certain forms of speech related to incitement of hatred or racial prejudice (e.g. the federal Racial Discrimination Act 1975 and the NSW Anti-Discrimination Act 1977. That’s why the public incitement to hatred of homosexuals as a category is also illegal.

So contrary to his claim, deceitfulness, hatred and prejudice (at least when expressed in certain concrete forms of speech) are not 100 per cent legal.

Mr Tiedt’s argument falters at this point on a significant error of fact. Some immoral activity is also illegal.

But that’s not the major error I wish to identify in his argument. No one in Australia, as far as I know, is arguing to make homosexuality illegal. I certainly do not.

Rather I believe he’s made a category error in his application of the categories of illegality and legality to recognising SSM. For laws can do more than determine whether an act is legal or illegal. Laws can also confer certain privileges to certain actions or situations.

For example, in Australia, only certain categories of parliamentarians (at the federal level, Ministers, Parliamentary Secretaries and the Speaker) have the right to be called ‘The Honourable’. You might want to be called ‘Honourable’. You might think you deserve it, because you’re as good as any politician. (Fair enough!) But you can’t claim the title ‘Honourable’ for yourself!

And while anyone can style themselves as ‘Dr’ (though they are neither a medical practitioner nor a holder of a PhD), in Australia, the law prevents an unqualified person claiming to be a medical practitioner (§117, Health Practitioner Regulation National Law Act 2009), no matter how helpful they think their health advice might be!

Returning to the issue of SSM, Mr Tiedt correctly identified a number of activities which many people consider immoral, but which are legal in our society, such as adultery, pre-marital and homosexual sex.

However it’s a category error to insist that because an act is legal, this means we must also give all such acts special treatment.

We may not criminalise adultery, but neither do we give it special privileges at law. We do not pass laws to encourage it, any more than we pass laws to honour or protect deceitfulness.

To say it another way, just because something is legal does not mean it deserves special privileged status, if it does not meet the standards required for that status (as with the medical practitioner example).

But that’s what the push for SSM is doing. It wants to gain the honour attached at law to marriage for SS relationships.

But the marriage law is not mainly about proscribing immoral behaviour.

The marriage law is not even about ensuring justice in personal relationships. As I understand it, all legal disadvantages in terms of property, inheritance and related rights have already been removed in Australia in regards to SS relationships. And there are now relationship registers available to provide fair legal treatment of homosexual partnerships.

Instead the marriage law is about encouraging particular, beneficial, moral behaviour, namely by publicly regulating and honouring the lifelong union between one man and one woman.

In most circumstances, such a marriage has, inherent to the union, the possibility of childbirth. It is inherently different from a same-sex union, which cannot provide both and mother and a father. (Acknowledging my Christian convictions, which I share with Mr Tiedt, elsewhere in a previous article, I attempted to make this case in more general terms that marriage deserves a special privilege as a fundamental building block of society. I do not especially wish to revisit that argument here.)

We can agree that certain personal acts are not illegal, even though we disagree about the morality of those acts.

We can agree to disagree on such matters; genuinely to ‘live and let live’ at the personal and social level. And I condemn all hate speech directed towards gay and lesbian people.

But Christian brothers and sisters, none of that means logically means we must privilege those behaviours with a public honour that does not inherently belong to them.

33 thoughts on “SSM – Not Again

  1. Hi Sandy, thanks for a clear analysis of the Tiedt’s article.

    I think people often assume that Christians who disagree with SSM fall into two camps:
    1) The camp that is happy to let people live and let live, because other people’s private lives is none of our business (e.g. Tiedt)
    2) The camp that desperately wants to impose its moral will on the private lives of everybody else in society for no good reason

    According to this assumption, you either belong to one camp or the other. If you’re not a relaxed happy camper (1), then you must be one of those crazy insecure types in camp (2).

    But you clearly don’t fall into either camp. You helpfully started your post by saying, “Friends, this is a post I’d prefer to avoid. Same-sex marriage (SSM) is not something I want to focus on.” And yet, you then went on to focus on it. I’m presuming that you weren’t lying when you said that you didn’t want to talk about it. In fact, I feel exactly the same way as you. I don’t want to talk about it either. But I think I should. How come?

    Because I (and I presume you too) believe that God wants Christians to do the right thing for people around us. We should do the right thing for others even when we don’t feel like it. We should do the right thing for others even when we’d much rather just chill out and relax. We should do the right thing for others even when we feel like there’s a lot of other more rewarding things we could be doing with our time and energy. We should do the right thing for others even when we know that other people are going to be upset with us because they don’t agree with our definition of “the right thing”.

    And in this case, I agree that a fundamental change in the legal definition of marriage is going to be hurtful for the people around us, especially for future generations of children. So I reckon I should say something about it. Even though I don’t particularly feel like it right now.

    So thanks, well done for bringing it up.

  2. One thing we should emphasise in our arguments against same-sex marriage is the use of the question-begging slogan “marriage equality”. I suspect that many who use the term are being deliberately dishonest in using it, but most probably regard it as a valid and strong argument. I think we fail when we don’t point out the flimsiness of the argument (really a non-argument) when that slogan is used.

    As Christians, another way in which some of us err is when we let go through to the keeper the assertion that we believe marriage should always be performed by a minister, preferably in a church bulding. Luther pointed out to the world that marriage is not a sacramnent and is equally valid for non-believers, but we have often failed to recognise that fully, even as Protestants. The gay marriage proponents then come along and say let us get married officially, but in civil ceremonies, as though our main objection is that they might compromise churches and ministers.

    And while this issue continues to threaten common sense, among other things, in Australia, unlike the author I don’t mind commenting on it!

  3. Pingback: The Engaging Essentials – 9/23 at

  4. Here’s my guess for how this will play out politically (of course, God alone knows the future). Anyway, I think the ALP will give members a conscience vote on this pretty soon. That means it will be defeated in the house of reps, as the Coalition will vote against it.

    I suspect we will then have two terms of conservative government. When the ALP gets back in again, so called “marriage equality” will be a part of their platform, and will carry through both houses. So I suspect it will happen within about 10 years.

  5. I also believe the weakness of the arguments put forward against gay marriage are probably laying the foundation for it’s eventual adoption as policy – just as happened in the SRE debate.

    Regarding the article linked above, I think the writer raised an important point which you skirted Sandy – to what extent should Christians seek to legislate their values upon a pluralistic society? I think this is the bigger question that needs answering.

    I actually posed this question on the Christian Stack Exchange, and have gotten a couple of interesting answers so far –

    http://christianity.stackexchange.com/questions/3322/how-should-christians-participate-in-a-democracy

  6. David, Lionel, Marty, thanks for the encouragement. David, I will try not to get weary.

    Hi Craig, and thanks for responding.

    As you know I was not especially putting forward the case here for maintaining marriage as heterosexual. I have made an effort elsewhere on this blog.

    Rather I was critiquing an article written by a Christian who says homosexuality is sinful, and addressed in large parts to Christians who believe the same. I was pointing out some errors in his arguments.

    So I would love to know what you think of the critique, and whether it exposed some flaws in his arguments, in particular the observation that law can do more than simply determine whether an action is legal or illegal, and so it does not follow that something merely legal should also receive special privilege or honour at law.

    The other thing to say is that I reject entirely the narrow terms in which you have couched the argument that “Christians seek to legislate their values upon a pluralistic society”.

    Heterosexual marriage is not a narrow Christian position. It is also the Muslim position. I understand it to be the position of much of Judaism, Hinduism and sections of Buddhism. And I would be certain that there are socially conservative atheists and agnostics who support the current definition of marriage at law. Even some homosexuals, such as Christopher Pearson, seem to support the current law.

    Marriage defined as heterosexual has also been the position of every culture throughout history, as far as I know, until the last few years. In addition, according to Wikipedia, same sex marriage is only permitted in ten countries (and parts of two others) of the more than 190 nations around the world.

    In other words, when we are talking about such a fundamental institution as marriage, which has enormous significance for the well-being of families, the onus of proof should be on those wishing to make a change.

    So here I am arguing that conservatism should be the default position.

    And for Christians, we are arguing for the good not just of Christians, but for society as a whole, because we know from Scripture that marriage is not just for believers, but for all humans (a creation ordinance) and that God has created marriage as heterosexual.

    And still speaking to Christians, we should make our arguments even if we lose the democratic debate. This should not be a matter of pragmatics.

  7. Sandy- You are no doubt a mush busier than I am and you will have more excuse to grow weary of a particular topic than a retired septuagenarian does.

    Yawn- back to the TV.

  8. Sorry- “much”! Also, “person” missing. I wasn’t leaving the space blank for others fo fill in.

    They will let old men loose sometimes.

  9. Hi Sandy,

    Thanks for your response, and I appreciate how gracious and thoughtful you are being in this debate.

    Regarding your critique, it seems to hinge on the following –

    “Instead the marriage law is about encouraging particular, beneficial, moral behaviour, namely by publicly regulating and honouring the lifelong union between one man and one woman.”

    I think you would need to do some work in proving that this is what the marriage act is “about”. As an aside, I actually went and had a look at the marriage act a few weeks ago, and I couldn’t see anything in the text itself that explained the rationale for the Act.

    Assuming your rationale for the Act is defensible historically, you would still need to prove that it was defensible in and of itself. There are lots of laws that were passed in history for “the good” which we’ve repealed further down the track because the rationale was suspect, or downright wrong. The White Australia Act comes to mind.

    So for your argument to hold water, you would need to prove that it is most beneficial on utilitarian grounds for society to encourage heterosexual marriage alone. This is quite an ask, and at the heart of the current debate. So far, I haven’t been persuaded by the utilitarian arguments put forward by the anti-gay marriage camp.

  10. Indeed, it’s possible to run the same utilitarian logic in the other way. Given that some people are going to engage in homosexual activity, it’s better to encourage them to be in monogamous and committed relationships rather than promiscuous ones. So a Christian might support gay marriage on the grounds of what Michael Hill called a “retrieval ethic” – essentially, making the best of bad situation.

  11. Craig, if you want to understand the rationale for an Act, you will generally find it in the Hansard recording of the debates in Parliament as the Bill is introduced. It is not generally included in the Act itself.

    In particular, look for discussion about the Marriage Amendment Bill 2004 which legislated the common law definition of marriage (i.e. being between a man and a woman). In other words, supported by the Labour Party, the Liberal Government decided to make explicit what the common law had always assumed about marriage. I suspect you’ll find some of the policy discussion in the debates that shows what the Act is about, and that it goes much further back in the common law.

  12. Thanks, Ian, for pointing us to sources for the ‘back story’ for marriage legislation.

    Craig, I am not sure I would only want to mount utilitarian arguments. Utilitarianism is not the only way of doing ethics, not even for the non-religious world. But it has some big problems. E.g. who gets to define what is the good to maximise and what is the bad to minimise? Check out Phillip Jensen’s comments on utilitarianism and its failure which MM has allowed the Gospel Coalition to put online (link to PDF of kategoria #11 in which it occurs here).

    I am a bit rusty on terms, but there are also teleological ethics (ethics oriented towards the ‘end’ or ‘purpose’ of a thing) and ontological ethics (ethics oriented towards the ‘nature’ of a thing).

    On your appropriation of Michael Hill’s retrieval ethic, perhaps we both better get out his excellent Matthias Media (free plug) book on ethics The How and Why of Love and consult it again. I suggest you look at page 134. Hill’s point is that a retrieval ethic is to be distinguished from the “lesser of two evils” approach, and is aimed at retrieving something intrinsically good. He explicitly says he does not think this applies to committed same-sex partnerships.

    Marriage – being between one man and one woman for life – has an inherently different nature and end from a same-sex partnership. In and of itself the former has the potential (and generally the intention) for the production of children in the context of a family that supplies a father and a mother, present and together. A same-sex partnership can never have that nature, because that union of two people can never supply a parent of both genders in union, nor even the potential for children themselves.

    Yes, there are other ways of going some way to achieving those ends in a same-sex partnership, but never simply from the nature or ontology of the relationship itself.

    Lastly, even if (and you can see I am saying it is a fairly big ‘if’) we work on the utilitarian grounds, our society has already provided a legislative framework for protecting long term same-sex couple relationships via removal of discrimination in such things as property, inheritance matters, and the provision of relationship registers. Individual couples can hold all sorts of personalised commitment ceremonies (in public) if they wish, and apparently have been doing so for ages.

    I am surprised that someone who (please correct me if I am wrong) has identified as towards the conservative end in politics does not put a higher burden of proof on those advocating for change. For example, even from a utilitarian point of view what evidence has been supplied that recognising same-sex marriage will not actually undermine marriage (as we have known it) even further, for example by importing different notions of fidelity that might be common to homosexuality, as other utilitarian changes seem to have done? Certainly some advocates of same-sex marriage openly say they also want to redefine what marriage means (e.g. to include open marriage, multiple partners etc).

  13. Hi Sandy, thanks for your response. I’ll briefly respond in turn to your major points. I don’t think either of us is finding the other very persuasive, but perhaps this will help others worth through the issues. I’ll put your points in quotes.

    “I am not sure I would only want to mount utilitarian arguments.”

    I felt that your argument was primarily a utilitarian one. To quote you again – “…the marriage law is about encouraging particular, beneficial, moral behaviour…” This is utilitarianism, and it’s at the heart of what you were saying (in this piece at least).

    “He [Michael Hill] explicitly says he does not think this applies to committed same-sex partnerships.”

    He may well do. But I think it is inescapably true that monogamous behaviour is more desirable than rampantly promiscuous behaviour, regardless of the sexual orientation of the person.

    “In and of itself the former [marriage] has the potential (and generally the intention) for the production of children…”

    I keep hearing this being said, this “potential for children” argument, but I don’t find it convincing. It sounds like the sort of definition someone has come up with to explicitly exclude homosexual marriage. It doesn’t sound like something that you would have come up with before this debate got started, if someone had asked you to explain marriage.

    “…our society has already provided a legislative framework for protecting long term same-sex couple relationships…”

    Indeed. Society has recognised same-sex relationships, granted them almost exactly the same rights as heterosexual relationships, and the world hasn’t come to an end. Given all that, I find it hard to understand why calling such a relationship “marriage” is going to result in all sorts of diabolical consequences.

    “I am surprised that someone who (please correct me if I am wrong) has identified as towards the conservative end in politics does not put a higher burden of proof on those advocating for change.”

    I must admit that my Liberal party membership has expired, but that’s more through slackness than intent. I’m actually on the libertarian end of the conservative spectrum, which seems more common in the US than here in Oz. Essentially I’m a small government man, and want to minimise government interference in our lives as much as is practical – and that includes our moral lives too.

    I believe we Christians should have every right in the world to practice our traditional morality, and to speak about it openly and publically, and even try to persuade others of it. But I hate the idea of using the law to enforce a value that much of society rejects. That situation does not seem sustainable to me.

  14. This debate “tastes” very much like the SRE debate to me. That also felt like Christians were saying “my way or the highway” to the world, and it doesn’t surprise me at all that the world turned around and told us to take a hike. I suspect the same thing will happen here.

  15. Craig, thanks for keeping the conversation going. I enjoy discussing these issues with you.

    I think you are mistaken in seeing what I say are mainly utilitarian simply because I have an outcome in mind for encouraging certain types of moral behaviour. I have not just been giving utilitarian arguments in regards to marriage. I made teleological and ontological arguments – one of the ends (purposes) of marriage is child-bearing; and the nature or ontology of marriage is heterosexual, a union of complements.

    this “potential for children” argument [...] It doesn’t sound like something that you would have come up with before this debate got started, if someone had asked you to explain marriage.

    With respect, you are way off beam here. Just think of PDJ’s famous “Love, sex & marriage” tapes from MYC or wherever it was 15 years ago. From Genesis 1 & 2, marriage has two purposes: unitive (bonding, ch. 2) and procreative (child-bearing, ch. 1).

    Christians have always consistently said marriage was in large part about children. Try 1662 BCP…

    …duly considering the causes for which Matrimony was ordained.
    First, It was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord, and to the praise of his holy Name.
    Secondly, It was ordained for a remedy against sin, and to avoid fornication; that such persons as have not the gift of continency might marry, and keep themselves undefiled members of Christ’s body.
    Thirdly, It was ordained for the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity. Into which holy estate these two persons present come now to be joined. Therefore if any man can shew any just cause, why they may not lawfully be joined together, let him now speak, or else hereafter for ever hold his peace.

    Not quite the exact way you or I might put it, but there’s an example that’s 349 years old, just a little before the same-sex marriage debate!

    Craig you say,

    But I hate the idea of using the law to enforce a value that much of society rejects.

    How is maintaining the current definition of marriage enforcing values? There is no force involved at all. People can value whatever sort of relationships they like regardless of the law.

  16. On the perceived similarity to the SRE debate, in the end, we have to do what is right, and not what is popular.

    Craig, it may be that some opponents of Christianity wish to paint us as being “my way of the highway” on this issue. However I do not think that is accurate. For example, if I recall correctly, both the ACL and Archbishop Peter Jensen publicly supported the removal of matters of injustice in regards to inheritance, property, superannuation laws, and in favour of relationship registers. That was my position also.

    However I do not think it is helpful for a Christian brother to reinforce an unfair strawman characterisation.

    In addition, I do not think you have not really engaged with the fact that it is not simply a Christian position, as I outlined earlier.

    Lastly, I have some scepticism about the polling. Perhaps that deserves a separate blog post. However the polling in Australia has sometimes had an element of ‘push’ about it. For example, the question in the Galaxy Poll commissioned by Australians for Marriage Equality in 2010 went this way…

    A number of countries allow same-sex couples to marry. These include Argentina, Canada, the Netherlands, Norway, Portugal, South Africa and Spain, as well as parts of the United States and Mexico. Do you agree or disagree that same-sex couples in Australia should be able to marry?

    The preface is a clear example of a ‘push’. Reputable researchers would admit the result could be different if the question was prefaced with a different sentence such as

    A vast majority of nations around the world do not permit same-sex marriage, including a majority of developed nations such as England, Ireland, New Zealand, France, Germany, Italy, Greece and Japan. Do you agree or disagree that same-sex couples in Australia should be able to marry?

    My point is to illustrate that interpreting polling results is not simple, and questions are sometimes subtly couched in terms that tend towards a result perceived as favourable to the organisation commissioning the pollster.

    It was also notable that when federal parliamentarians reported back on 24 August in regards to the Bandt motion on attitudes within their electorates towards same-sex marriage, there was not nearly the enthusiasm some had expected. I understand that in 18 of the 30 electorates on which MPs reported back, the feeling in the electorate was reported as overwhelmingly for retaining the definition of marriage. Only 6 of the 30 reported their electorates in favour of gay marriage, mainly from inner-city seats.

  17. Hi Sandy, I’ve been enjoying this conversation too.

    “With respect, you are way off beam here.”

    You misunderstand me, and perhaps I wasn’t clear. Yes, children have always been spoken of as one of the reasons for marriage. From the prayer book, we get three reasons –

    - Mutual support
    - Sexual expression
    - Rearing of children

    But no-one (besides Catholics, perhaps) ever took the children argument and made it pretty much the essential purpose of marriage, and that is what the current debate seems to be doing. After all, what about those marriages where someone was infertile, or where (perhaps because of age) children were impossible? No-one would suggest these were any less marriages than those that had children.

    This whole “theoretical potential for producing children” argument has been come up with to exclude homosexuals, while not offending (too much) those heterosexual couples who can’t have children. I don’t recall hearing this language (“theory”, “potential”) prior to this debate. That was my point.

  18. “However I do not think it is helpful for a Christian brother to reinforce an unfair strawman characterisation.”

    I don’t believe I have strawmanned anyone.

    “In addition, I do not think you have not really engaged with the fact that it is not simply a Christian position, as I outlined earlier.”

    From where I sit, this argument seems to be primarily pushed from Christians. Media reporting on the issue seems to always have a Christian voice in the negative, the ACL are running a visible campaign against it, the anti-gay marriage seminar in Canberra had a prominent US Christian as a major speaker and so on. Even the article that started this particular thread was written by a Christian.

    Perhaps there are a silent secular majority in agreement with your position – but Christians certainly seem to be at the pointy edge of the debate.

  19. One final comment before I go to work, on the internal politics of this debate. I’ve written according to my convictions, but it is not an issue I feel especially strongly about. I share the “Oh no, not again” feeling of Sandy in that respect.

    I wrote my piece in Eternity at the request of the editor, who said “you’re brave!” when I said I’d do it. It was all done in rather a hurry. As it happens, a theological student had written the original piece, but had withdrawn it due to fears of denominational reprisals. Others feel strongly about this stuff.

    Soon after the archbishop published his piece in SC, a senior academic in the diocese suggested to me that I should be silent, so as not to be seen disagreeing with the Archbishop. He said he’d bitten his own tongue during the whole SRE debate. But perhaps we would have been better served with dissenting voices?
    I also spoke out against our approach in the SRE debate, and copped some minor vilification as a result. Even recently I had a slightly irate Scripture teacher email me, as if it were my fault that she had lost 3 students from her class!

    My point is that this is not an especially comfortable debate for me. A respected clergyman described the article linked above as “friendly fire”. Hard to carry on a debate in those circumstances.
    I’m certainly not on some crusade to change everyones mind – I’m simply expressing an honest opinion.

  20. Craig, re. child-rearing as a central and fundamental (not sole) purpose of marriage… you wrote

    This whole “theoretical potential for producing children” argument has been come up with to exclude homosexuals, while not offending (too much) those heterosexual couples who can’t have children. I don’t recall hearing this language (“theory”, “potential”) prior to this debate.

    I respectfully ask you to think harder.

    Christians have always been wary of deliberately childless marriages (except in exceptional circumstances) and why Protestant Christians would think it is normally wrong to always use contraceptives in marriage. See Michael Hill’s book. See Lionel’s posts on our solapanel predecessor where he mentioned the oddness of a Christian marriage service that excluded any mention of children, let alone a prayer for children, and clearly made this argument exclusive of the SSM issue.

    Regarding the exceptions, such as infertility (whether discovered before or after the marriage), this does not change the basic orientation of the nature of marriage. And in fact, adoption was always an honoured alternative in such sad situations, but until recently, the aim – in the best interests of the child – was to provide both a mother and a father. Further, there have been countless examples (think of the Bible!) where couples appeared to be infertile and presumed that was the case, and have fallen pregnant, and although surprised, generally rejoice in this unexpected blessing. This all demonstrates a basic and fundamental part the teleology and orientation of marriage is towards procreation.

  21. Craig, regarding my concern about strawmen, here’s what I am reacting to, when you said…

    But I hate the idea of using the law to enforce a value that much of society rejects.
    [...]
    This debate “tastes” very much like the SRE debate to me. That also felt like Christians were saying “my way or the highway” to the world [my emphasis of your original].

    You are certainly right that Christians are at the pointy end of the debate. But I believe I have clearly demonstrated that it is not only Christians who are opposed to SSM. I have also given examples of leading Christians, including the ACL, who have taken a nuanced approach to providing certain protections for SS partnerships. I have certainly publicly said, e.g. in my previous article on this topic, that I would respect the decision of the parliament, so long as I was not forced to conduct SSM as a wedding celebrant.

    And as far as I know, no Christians in the debate have tried to threaten or otherwise force “my way” on to the world. We have used the tools of debate and lobbying to attempt to persuade the public and our parliamentarians to support the current definition of marriage. This is entirely normal in a parliamentary democracy. It is certainly what proponents of SSM do.

    Yes, other opponents of our view might use the rhetorical claim that this is trying to ram our views down people’s throats or “my way or the highway” as a debating tactic.

    I have suggested that it is an unfair stereotype.

    And I am requesting that you consider refraining from reinforcing what I have given evidence is a false stereotype.

  22. Lastly, Craig, I think you are courageous Christian brother and should continue to call it as you see it. I do not think any less of you for taking a different view from me on this.

    (In fact, I was in agreement pretty much all along on SRE that we should not oppose Ethics outright, but that we should mainly campaign for a genuinely level playing field.)

    While your adviser was right to suggest you should consider carefully our fellow Archbishop’s opinion (partly because of his office, but far more because of his deep biblical wisdom and experience), he was wrong to suggest you should never speak out with a different view, if that is where your convictions take you.

    Thank you for being willing to take an unpopular (in this forum) position and please continue to do so if you honestly think it necessary, as you clearly do here.

    Pray that other Christian leaders will also show such courage to speak the truth as they see it, especially when unpopular, into the even more difficult public arena.

  23. I would like to thank all involved for a serious attempt to resolve some of these difficult issues. I support what Sandy is saying. I have written a longish piece arguing in particular that it is vital for the sake of clarity to recognise that this is not a “discrimination” issue (a point David was making above) – see http://works.bepress.com/neil_foster/40/. There are a number of powerful arguments which can be made even from a “secular” perspective about the value of heterosexual, committed, marriage relationships for society which I outline in my paper. Since writing it I have come across a longer article from a more academic source which documents the case more clearly- see Sherif Girgis, Robert P. George & Ryan T. Anderson “What Is Marriage?” (2011) 34/1 Harvard Journal of Law & Public Policy 245-287, http://ssrn.com/abstract=1722155 .

  24. I think I’m about done for the time being on this subject. Thanks to all for a stimulating conversation. I look forward to watching the political debate unfold.

  25. Fair enough, Craig, I can really commend the article in Harvard Journal which Neil linked to above. It is a free download.

    Thank you very much for the discussion. It is a true privilege and pleasure to be speaking with you.

  26. It is hard to follow the tangled web of arguments in favour of the case for the prevention of homosexuals labeling their relationships ‘marriage’. The argument is made based on a clear underlying implication that there is something wrong with the behaviour of homosexuals and thus with the practitioners of it. Notwithstanding that subtext, Sandy says ‘I am not arguing to make homosexuality illegal’ and ‘I condemn all hate speech directed towards gay people’.

    The failure to acknowledge the real target confuses the issue. If the arguments relied on to say that homosexual people should not get the ‘public honour’ said to attach to the label of ‘marriage’ are believed to be correct, then why not seek to eliminate homosexuality by any means possible? Thus the good Christian should seek to stamp out homosexual behaviour by arguing to make it illegal. Why draw the line at preventing them labeling their relationships in the same way people of normal appearance do?

    The argument would be easier to follow and digest if there was an admission that, on the grounds of religious dogma only, Christians hold homosexual behaviour to be bad, evil and wrong. Therefore, and with copious appeals to that same dogma, homosexual behaviour (along with a range of other sinful conduct) should be discouraged, taught against, prayed over, healed out, and made illegal as well.

    Based on this dogma, the practitioners of homosexuality are sinners, ie bad. If church and state were one (oh to return to those glory days), Christians would make homosexual behaviour, and other sinful behaviour, a crime. After all, their behaviour risks the safety of society itself according to the argument. Christians could even (and presumably should) legislate for a form of church guided inquiry or inquisition, to find out who the homosexuals are.

    Why appeal to the Marriage Act? Other than an amendment introduced in 2004 for the specific purpose of preventing same sex marriage, the Marriage Act does not define the state of marriage. A special ‘honour’ is claimed to be inextricably linked with the labeling of relationships by the Marriage Act. But contrary to Sandy’s clear implication, there is no direct suggestion in the Act itself to support the proposition that the Marriage Act;

    ‘is about encouraging particular, beneficial, moral behaviour, namely by publicly regulating and honouring the lifelong union between one man and one woman’.

    There is no section by which the state of marriage is legislated to lead to people being feted in the streets. Surely to be more precise, this is an opinion only implied into the Marriage Act. Presumably stemming from religious dogma. This kind of argument seems to reflect a despairing appeal to the church’s lost social influence more than any credible attempt to influence the outcome or even to find any theological backing for the position.

  27. Tom, our site rules are that people posting ought to use their real and full name, and I for one believe that’s a good idea. So this puts me in a bind in replying. I will reply this once, but will not reply again, unless you use your full name.

    Thank you for your opinion. We obviously disagree.

    A few responses. Firstly, there is nothing hidden or merely implied about my view that homosexuality is sinful. The author of the article I responded to held that view. I said I agreed with it. I have also said (in my previous post) that I think arguments can be made in the public arena in favour of retaining the current definition of marriage as heterosexual without appeal to religious authority (which you may judge as weaker or stronger). However I have never hidden the fact that the Bible informs my views.

    Secondly, you presume to know about my motives and real targets and to advise me how I should proceed. Good for you. Glad you have such insight.

    Of course, this is contrary to what I have said, that I wish to work by persuasion, and not by civil or criminal law, let alone force, for example, on the matter of homosexual practice being sinful. And likewise, I try to work by persuasion on the question of whether or not to recognise SSM.

    Some Christians have looked towards establishing Christian rule in society. It is not my position, as I believe the Bible clearly says God’s New Testament people are not gathered as a socio-political nation, but are scattered among the nations, where they are to submit to the civil authorities (except where they command us to do what God forbids, or forbids what God commands us to do).

    Nor is having church and state one by any means the majority positions throughout 2000 years of church history (just read Acts or the first 300 years of church history) and it is not the position of most Christians in Australia today either. We speak as citizens – in our case as Christian citizens – into the public arena as our democracy permits, trying to persuade. Then as far as possible we work with the laws of the land as passed by our parliaments, even when we find it difficult. And like you, we continue to have the chance to advocate for change in the laws.

    As to the question of the Marriage Act, Ian helpfully made some comments indicating that intentions in law making are often found the explanatory statements and parliamentary debate recorded in Hansard, and also indicating that the recent amendment to the Marriage Act was enshrining what was widely assumed in the Common Law for centuries, and has been universal across time and cultures in thinking about marriage, until the last couple of decades.

    For example, my copy of the Handbook for Marriage Celebrants (fifth edition 1993) predates the amendment by more than a decade. All the way through it both assumes and makes explicit that marriage is to be heterosexual. For example it opening section, titled “Explanatory Summary”, on page 1, in its opening paragraph says,

    Marriage, according to Australian law, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

    In another example, Marriage Celebrants have for years been required to give both intending parties a document produced by the relevant Federal Department on behalf of the Government. It is entitled Happily Ever… Before and After: Important information for people planning to marry. In it we discover what the Government has believed is important to communicate about marriage to its citizens. Some direct quotes…

    It is helpful to know that:
    • marriage is important to you, to your children and to society

    So the first bullet point indicates the understanding that marriage is not just a special personal relationship of romance, sex and care, but one that has children inherently in mind and if of importance to the wider society in general.

    In a section entitled, “Marriage is Important”, it cites the Family Law Act in addition to the Marriage Act as shaping our thinking about marriage., quote…

    The Family Court is there to preserve and protect the institution of marriage, to give the family the widest possible protection and assistance, and to protect the rights of children and promote their welfare.
    The Family Law Act says:
    • Marriage is ‘the union of a man and a woman to the exclusion of all others voluntarily entered into for life’.
    • The family is ‘the natural and fundamental group unit of society’.
    It is a worthwhile goal for all married people to try to achieve a strong marriage and family life.

    The Family Law Act dates from 1975, so the heterosexual provision has been around a lot longer even in explicit Australian law than 2004. It also gives further evidence of the view that marriage is a fundamental institution of our society and is inherently oriented towards child-rearing.

    So here is some wider evidence, from which I can justify the assertion that our laws, including the Marriage Act 1961, are designed to encourage “particular, beneficial, moral behaviour, namely by publicly regulating and honouring the lifelong union between one man and one woman” and in particular with an inherent orientation towards children.

  28. Hi Sandy,

    It is inconsistent to say homosexual conduct is so bad we should be concerned about the labelling of some of their relationships as ‘marriage’, but on the other hand we should not want to have the Crimes legislation amended to make their conduct unlawful. If labelling some same sex relationships ‘marriage’ will cause the claimed social problems, surely one would want to criminalise the behaviour at the root of it. On the other hand, not wanting to criminalise the behaviour waters down the strength of the claims of problems said to be sure to follow. You can say you seek them both in all good faith, but I am unsure you can do so with any credibility.

    You referred to ‘the marriage law’. As the entire topic is an amendment to the Marriage Act I am sure that would be read as the Marriage Act specifically. But the Marriage Act does not directly state the concepts expressed by you. You can generalise as you wish about the social concept of marriage but it is somewhat subtle to turn to the other sources you now refer to, Hansard, the Common Law, or your handbook, to interpret into the Marriage Act what is not there. I won’t bother quoting the entire Marriage Act as I am sure you already know that there is no section or other words saying directly the things you seem to attribute to it.

    Nor is it really accurate to say you can rely on Hansard or any other source to interpret something into the Marriage Act that does not appear there. Concepts of honour etc. The NSW Interpretation Act makes quite clear in section 34 that reliance on extrinsic material to interpret legislation is when you are seeking to determine the meaning of words that appear in the Act itself. It is not to allow you to make up broad brush concepts, and to rely on Hansard or any other extrinsic material while suggesting that such concepts derive their foundation from the Marriage Act.

    Contrary to what is claimed, many pieces of legislation contain a specific written purpose. The absence of an expressed purpose for the Marriage Act in truth does not help your argument, on the contrary it makes it harder to try to ‘write’ in a purpose when the legislature no doubt for good reason chose not to do so.

    The statement about ‘our laws’ etc seems to ignore the no fault divorce allowed under the Family Law Act. That was so people could get out of marriages. Hardly a law ‘honouring the life long union’. The legislature generally avoids nebulous concepts based on religious dogma, and for good reason.

    The other things you refer to that relate to how society regards marriage, exist apart from the Marriage Act. They are not dependent on it. From this one could at least put forward the possibility that the terms of the Marriage Act won’t have any real effect on those other things.

    Of course if the words of the Marriage Act are irrelevant to the social concept of marriage, then allowing same sex marriage under that Act will have no effect on that state.

    And that is without even having regard for the absence of credible ie independent and peer reviewed, data to support the various factual propositions upon which the argument depends.

  29. Tom, we obviously disagree, but I also feel you are failing to engage precisely with some of the things I have said, or perhaps I have not said them clearly enough.

    For example, in your opening statement in your last post, it is pure assertion on your behalf that it is inconsistent to resist permitting SSM while not seeking to criminalise homosexual activity. Assert away, but the evidence is that there are plenty of activities which many people consider immoral, some of which are also thought to be quite damaging, but which are not illegal. I am under no obligation to make a case you think I should. That’s your problem not mine.

    I especially reject your implication that I have said homosexual activity is “so bad”. I do not recall making that statement and by and large I would try not to rank sins, as I am quite aware that the Bible lists a whole range of things as sins, some of which I struggle with, and some of which others might consider better or worse. In that the original Christian author I interacted with was quite right to point out gossip, deceitfulness and hatred as examples.

    I am quite aware of the principle that the various laws our parliaments pass are to be interpreted by their own wording, and not things extrinsic to the particular act. However we are not merely talking about a legalistic approach to what a particular act does at law. We are also talking about why it is there, why people have been concerned to regulate marriage and so forth. And at that level, there is relevance to intentions expressed in Hansard, or in explanatory statements which accompanied legislation at the time. Not legal relevance, but moral relevance.

    Further, perhaps you are unaware of Section 42 (5A) of the Marriage Acts 1961. This requires authorised celebrants to “give to the parties a document in the prescribed form outlining the obligations and consequences of marriage and indicating the availability of marriage education and counselling.”

    It was this prescribed document, Happily Ever… Before and After, legislated for by the Act, which I was referring to above, and which clearly identified marriage as having children inherently in mind, and the importance of a strong family life etc. Clearly successive governments has seen this as fundamental to the “obligations” of marriage referred to in the Act, as they have continued to use this sort of wording year after year.

    You are quite right that the Family Law Act 1975 permits divorce. And with great sadness, the BIble also permits divorce. But the provision made for divorce does not vitiate that the express goal and intention in marriage at law is that it be for life.

    And if you are going to cite the Family Law Act, why won’t you admit the significance that this Act, which predates the SSM debate, expressly speaks of marriage as ‘the union of a man and a woman to the exclusion of all others voluntarily entered into for life’ (my emphasis)? It also states that the family is ‘the natural and fundamental group unit of society’.

    I repeat that this is evidence that the recent amendment to the Marriage Act was only clarifying what has long been held both at law and by government and society in general – that it is heterosexual – as well as being inherently oriented towards children.

    Tom, may I put the shoe on the other foot, and ask you to state clearly what do you think marriage is for, and what categories and numbers of person do you think should be eligible to enter a marriage, and what reasons you have for that.

    Thank you.

  30. Thank you, Sandy, for writing on a difficult but important topic. I appreciate your knowledge and wisdom on this matter. Yours is a position I agree with but often struggle to express clearly so your words are a great help. Cheers.

  31. Perhaps the communication problems arise from the difficulties inherent in trying to run an argument based on religious dogma and attempting to draw in non-dogmatic concepts in support without acknowledging the gulf between the two. I’m not persuaded you give the complexity of the various concepts their due respect, tending to rather default to religious dogma.

    As best I now understand it, the thing you term ‘marriage law’ is a range of things with a moral aspect that partially intersect an array of different laws, including the Marriage Act and the Family Law Act. Wouldn’t it be better just to say that on strictly theological grounds you believe homosexuality to be a sin. And don’t bother with attempts to gather some kind of credibility by reference to the ‘marriage law’.

    You say homosexuality is not bad enough (or sinful enough if you prefer) to be criminalized, ie legislated against. That makes it not as bad as drink driving say, or assault. On the scale of good and bad (or moral and immoral), there are many things that are a lot worse in the eyes of our society.

    So putting dogma to one side, homosexuality is far less bad or less immoral, than a whole range of things. Which strongly suggests that the contention that a particular act of two homosexuals (ie going through a ‘marriage’ ceremony), is not really the big bad bogey man that it is made out to be. Which undermines your contentions.

    In truth don’t things like pornography have a much broader and significant detrimental effect on marriage and society than the homosexuals? Would we argue viewers of pornography should not be married either? I await the post on that with interest.

    My point re the Family Law Act was that the Act allows no-fault divorce. Clearly that is a part of the ‘marriage law’ that you sweepingly generalized about earlier, but it was not one you referred to in your original post. That was my point. You were complaining about the original authors lack of precision, while allowing your own dogmatic presuppositions to obscure aspects of the ‘marriage law’ that did not assist.

    The brochure you refer to does not allow you to draw the sweeping and specific conclusions arrived at about the ‘marriage law’. For example the brochure speaking of marriage courses includes the words; “Courses are practical, fun and do not push a particular moral or religious view”. So from those words one could argue that the Marriage Act does not in any way push a ‘moral or religious view’, and therefore cannot be used as a crutch for a strictly theological argument.

    Allowing homosexuals to marry is the same as allowing them to buy a house, get a passport, live together or do any other thing. As you rightly point out, marriage is critical to a sustainable society. This cannot ever truly occur in a purely ‘homosexual’ group. Indeed, homosexuality can only really exist on the fringes of a functioning society. In which a certain level of stability of the child-producing unit is obviously critical.

    And what about the concept that encouraging monogamy in the homosexual community may result in a broad benefit to society? And that the opposite view ie discouraging monogamy in the homosexual community could be said to encourage promiscuity in the gay community? Where are the concepts of Jesus Christ with the prostitutes and sinners reflected in that?

    The comfort for you is that in our society the silent majority agree with your goals if not your dogma. Ie repress the homosexual (and other different people).

  32. I’m mostly with Craig on this one, and just thought I’d chime in with what I think is the most consistent libertarian position… how bout we just suggest the government stop having any position on marriage whatsoever. Then we, the church, can define it as we see fit, and others in the community can do the same.

    We have history on our side, they have the faddish “love conquers all” approach to doing whatever it is they want to do. At the end of the day we’re arguing about semantics (ie what “marriage” means), we’re not really changing the nature of any relationships that currently exist.

    I’d much prefer the government to be providing innovative policy that encourages looking after children in optimal environments (ie providing incentives for stable, long term, monogamous, heterosexual families) via tax breaks etc for biological parents who cohabit, than entering a debate about “morals” and “values” surrounding a tradition that is increasingly on the nose with the public. Marriage stopped meaning what we wanted it to mean, on the legal front, when it became increasingly disposable.

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