The US Supreme Court and our newly installed Prime Minister have put their weight behind legal recognition of same sex marriage.

Kevin Rudd before resuming the prime ministership wrote that he had ‘come to the conclusion that church and state can have different positions and practices on the question of same sex marriage.

I believe the secular Australian state should be able to recognise same sex marriage. I also believe that this change should legally exempt religious institutions from any requirement to change their historic position and practice that marriage is exclusively between a man and a woman.’

Change is still some way off here in Australia and the arguments are still a little confused. But change is coming.

On 26 June 2013, the US Supreme Court gave two decisions impacting on same sex marriage under a constitution which vests in the states, and not Congress, the power to make laws with respect to marriage.

Here in Australia, the Commonwealth Parliament, and not any state parliament, has the overriding power to make laws with respect to marriage.

So Australian states are not assured the constitutional mandate to go it on their own.

One of the US Supreme Court decisions cleared the way for same sex marriage in California, the 12th state of the union to recognise such marriages, and the other struck down the Congress’ Defense of Marriage Act which provided that in all federal rules and rulings ‘the word ‘marriage’ means only a legal union between one man and one woman as husband and wife’.

Writing for the majority in US v Windsor, Justice Kennedy striking down Congress’ attempt to limit marriage to the exclusive union of a man and a woman said:

It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.

For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilisation.

Cardinal Timothy Dolan, president of the US Conference of Catholic Bishops, described the Supreme Court decisions as a ‘tragic day for marriage and our nation’, saying, ‘The Court got it wrong.

The federal government ought to respect the truth that marriage is the union of one man and one woman, even where states fail to do so.’

He and his fellow bishops said, ‘Marriage is the only instituion that brings together a man and a woman for life, providing any child who comes from their union with the secure foundation of a mother and a father.’

Australia’s bishops have been fairly quiet on this issue.

But in April, Australia’s most theologically literate bishop Mark Coleridge appeared on the ABC Q&A opposing not just same sex marriage but any civil recogntion of same sex unions, describing homosexuality as ‘a warp in the creation’ and as an impossibility in God’s plan.

It is high time to draw a distinction between a marriage recognised by civil law and a sacramental marriage.

In deciding whether to expand civil marriage to the union of two persons of the same gender, legislators should have regard not just for the wellbeing of same sex couples and the children already part of their family units, but also for the wellbeing of all future children who may be affected, as well as the common good of society in setting appropriate contours for legally recognised relationships.

Same sex couples wanting to create their own children may in the forseeable future be able to use only their own genetic material, precluding the possibility that such children will have a biological father and a biological mother.

Whether or not we legislate for same sex marriage, we should restrict artificial reproduction of children such that they will have a biological father and a biological mother, and hopefully able to be known by them.

Legislators making laws regarding adoption ought be able to demand that adoption agencies continue to consider the best interests of the child.

In the case of a child unrelated to any prospective adopting couple, the adoption agency ought be able to have regard to the desirability of a child being brought up in a family with an adult male and an adult female.

If these concerns were met or at least weighed in the balance against the claims of children already in same sex families deserving respect and nurture by the state and society, society could properly move to recognition of civil unions or same sex marriage if and when the overwhelming majority of the population (including those who are presently married civilly) supported such change.

In the US proceedings, the Court was told that there are already 40,000 children in California alone who are being brought up by same sex couples.

We need to be mindful of the wellbeing and dignity of these children as well as the handful who will be up for adoption and the unknown number in future who will be created in a test tube.

There has been a clear divergence of view within the Catholic Church on civil unions as a means of doing justice and according dignity to gay couples, while leaving unanswered the questions about adopted children and children created with advancing reproductive technology, and maintaining a distinction from marriage even in civil terms.

In June 2012, Coleridge had written to Campbell Newman the new Premier of Queensland urging a repeal of the law recognising civil partnerships. He spoke of ‘the evidence that seems to be emerging … that there is a slippery slope from registration to civil partnerships to same-sex marriage.

I would urge you therefore to honour the promise made before the election — to repeal the civil partnerships legislation in order to safeguard marriage and the family as they have been known through the millennia.’

On Q&A Coleridge then said:

But what the Church has to do is to remain faithful to our understanding of homosexuality and yet, at the same time, to work in every way we can to ensure justice for homosexual people. Now, clearly this doesn’t mean to say, for instance, that we support gay marriage. The Church’s position on that is very well known and controversial. But in every other way, to work to defend the dignity of homosexual people, just as we work to defend the dignity of other people.

How to do that and to maintain fidelity to our understanding of homosexuality, which is grounded upon a particular vision of what the human person is and what human sexuality is within that context.

How to hold those two things together is the conundrum that we are dealing with. I don’t think it is an Achilles’ heel but I think it is a real conundrum with which the Church has to continue to grapple at this time and in this culture.

The Archbishop was right to insist on the need ‘to work in every way we can to ensure justice for homosexual people’ and ‘to work to defend the dignity of homosexual people, just as we work to defend the dignity of other people’.

It would be just and a service to the common good for the State to give some recognition and support to committed, faithful, long-term relationships between gay couples deserving dignity, being able to love and support each other in sickness and in health, until death they do part.

Should legislators in our pluralistic democratic society withhold such just and dignified recognition of civil unions because this might be a slippery slope to same sex marriage?

Pope Benedict XVI when at the Congregation for the Doctrine of the Faith opposed even civil unions.

However Pope Francis when Archbishop of Buenos Aires had told gay rights activists that ‘homosexuals need to have recognised rights’ and that he ‘supported civil unions, but not same sex marriage’.

I am with Francis on civil unions but, unlike him, I now accept that we can probably no longer draw a line between civil unions and same sex marriage.

That will be the long term consequence of last month’s US Supreme Court decisions which will impact much further west than California.

Fr Frank Brennan SJ is professor of law at Australian Catholic University, and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.

Author: Frank Brennan
Image: Shutterstock
Date: 11 July 2013