The government should stop marrying people

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My guilty pleasure is watching Judge Judy during my lunch break. Sandwich and cuppa in hand, I love watching her harangue dead-beat parents over child support arrears, sniff out which lovesick teenager is responsible for keying an ex-boyfriend's car, and lecturing separated couples fighting over who gets the washing machine and the cable bill.

Gay weddingOften, she will ask why they didn't bother to marry: 'You're committed enough to make a baby, but not to get married?' she'll rhetorically ask in her no-nonsense Brooklyn Jewish grandmother accent. 'We have courts for marriages that break up but not for when living together doesn't work out,' she explains.

In a nutshell, Judge Judy is explaining the modern democratic state's interest in marriage: recognising the contractual rights and obligations of two people who share resources and (where they exist) rights and responsibilities to children.

The state doesn't have an opinion on whether God approves of the union because theocracy went out of fashion in the West, along with the Divine Right of Kings. These days in Australia, the state doesn't even care to enforce sexual exclusivity of partners, although once upon a time that was a major element of marital law. Divorce is all about distribution of assets and establishing proper care of the kids. So why the brouhaha over marriage for gay people?

Since time immemorial, different societies and cultures have developed all sorts of rules and taboos about marriage, which makes for fascinating reading and belies the notion that there is a single, eternal concept of marriage that straight people can access but gays may not. Some types of marriage permissible in different times and cultures are not accepted under current Australian law, other types are perfectly legal here but a big no-no in other times and places.

Take interreligious marriages, for example. In Australia, a Satanist can marry a Jedi Knight and no-one gives two hoots, but a fourth century Christian couldn't even dine with a Jewish neighbour, let alone marry him, thanks to the Council of Elvira. Things have relaxed a bit since then, but even in 1938 my CofE grandfather had to marry his Catholic bride 'behind the altar' and her relatives wouldn't darken their doorstep.

Muslim men have to restrict themselves to four wives, but fundamentalist Mormons are good to go with any number. Polygyny was common enough in ancient Judaism, the record being held by King Solomon and his thousand wives and concubines. Ambiguously, Saint Paul insisted bishops should be the 'husband of one wife', prohibiting either polygyny or serial monogamy — at least for those in charge. Today, bishops of either the Catholic or Orthodox variety aren't permitted to be husbands full stop, at least not with living wives.

None of the Semitic religions let women collect multiple husbands, but they do in the Himalayas. Polyandry is recorded as practiced there and in over 50 other societies including in the Marquesas islands, and among the Inuit and the Yanomamö. The pre-Islamic Arabs determined paternity by the woman gathering all her husbands together and choosing who was the father. It's a bit easier, these days, with DNA tests.

 

"The state really does not care whether gay sex is a sin, only who gets the washing machine and cable bill in the end."

 

You can marry your uncle or aunt in Australia, one of the few places in the world where it's legal, but South Korea bans degrees of affinity out to third cousins. Adolf Hitler's mother married either her uncle or first cousin once removed (the family history is messy). Either way she called him 'uncle' all her life. Cousin marriage is common in the Middle East and among the European upper class. Before marrying Lady Diana Spencer, Prince Charles proposed to his second cousin Lady Amanda Knatchbull, following in the footsteps of his ancestor Queen Victoria, who married first and third cousin Prince Albert.

The permissible marriage age varies too. In the United States, exceptions to the minimum age of 18 (19 in Nebraska and 21 in Mississippi) include pregnancy and parental consent. According to the Pew Research Center, in 2014 in the United States, there were 57,800 married minors (youngsters aged between 15 and 17) and 25 US states have no minimum age requirements for exceptions.

This is all by way of saying that marriage is a product of the cultural attitudes and religious beliefs of different societies and groups of people. There will never be universal agreement over what constitutes a valid marriage or who should be allowed to marry or not. In a secular, democratic country like Australia, the government should get out of the marriage business altogether.

What the government should do is determine who has the legal right to enter into secular, contractual arrangements protecting assets and guardianship matters. That means everyone — gay or straight — gets a civil registration, not a marriage certificate. Leave marriage ceremonies to the various churches, synagogues, mosques, humanist societies and non-religious wedding celebrants to conduct them (or not) according to their various ethical and moral stances. The state really does not care whether gay sex is a sin, only who gets the washing machine and cable bill in the end.

 


 

Rachel WoodlockDr Rachel Woodlock is an expat Australian academic and writer living in Ireland.

Topic tags: Rachel Woodlock, marriage equality


 

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Why should we leave marriage to "the church"? After all, there are many references in the bible to elders having more than one wife so what makes this author think that churches do marriages better? In the U.S, 51% of all marriages end in divorce and most of them start in churches...and a few in Elvis chapels in Las Vegas. I think what this author is suggesting, is that because some churches cannot or will not condone gay marriages, then we should all lose the privilege of being married by the government. I think the author has that backwards: how about the churches stop conducting marriages, and then maybe there wouldn't be so much bigotry and superiority surrounding marriage?
Tim | 07 September 2017


Thank you Rachel for this article and your sensible thoughts on this topic, a topic which is causing such anxiety and division in families, churches and friendship groups at this time in Australia.
Yve Cruickshank | 07 September 2017


Brilliant article! Thank you.
James Robinson | 07 September 2017


In the US recently a woman married her cat and another her favourite rose bush. Such is the significance of marriage that is not between a man and woman. It means nothing and the religions as you say, Rachel, should get on and practice their marriage rituals as they wish and leave the civil rituals to the state. Incidentally, the last census indicated that Australia has some way to go before it becomes a secular society/state.
john frawley | 07 September 2017


According to Roman Catholic theology it is the two people getting married who actually perform the ceremony, not the priest, even though you would be forgiven for thinking it was him. In England - where our Law stems from - there was a stage where, for Christians, only marriages celebrated by a clergyman of the Established Church were recognised. Hence ancient recusant families like the Throckmortons had to hie themselves off to their local Anglican Church to get married. I'm not sure when secular marriage came in. I suspect the 19th Century. I have no problems with the current marriage laws, which will, obviously, change when SSM comes in. My concern is that religious denominations are not forced to go against their beliefs. The result of SSM coming in may be somewhat messy. I suspect the Anglicans (except Sydney, Armidale and North West Australia) will go the way of ECUSA, which will lead to the same sort of realignment as has happened in North America. The Anglican Communion is already in de facto schism. There is a phrase about 'living with diversity'. We need to get ready for that.
Edward Fido | 07 September 2017


Tim: "we should all lose the privilege of being married by the government." I guess I never saw that so much as a privilege as a piece of admin, myself. Because I was raised Baha'i, our marriage ceremonies weren't recognised by the UK govt (where I was living at the time) so we had to go through the 'admin' registry office ceremony before we had what I considered our *real* marriage, which was the Baha'i ceremony. It mattered so little to me, I wore rollers in my hair and a scarf to the registry office ;) I've always thought it curious that I couldn't just sign the piece of paper to satisfy the government, why did I have to have a registry ceremony as well?
Rachel Woodlock | 07 September 2017


Thank you kindly Yve and James. John: "the last census indicated that Australia has some way to go before it becomes a secular society/state" well, there's a difference between a secular government in which no one confession of faith is given authority/preference, and secular in that the people in the society are not religious. I like the one but not the other ;)
Rachel Woodlock | 07 September 2017


Edward: "My concern is that religious denominations are not forced to go against their beliefs." I think that is what is spurring a lot of the sentiment behind the 'no' vote, not helped by the 'I won't bake cakes for gay marriages' stunts.
Rachel Woodlock | 07 September 2017


Absolutely right, Rachel.The current argument uses the word 'love' ad nauseam, but the State isn't interested in love, commitment or responsibility - and perhaps it shouldn't. Same sex marriage advocates are actually asking for the state to register same-sex unions, calling them marriage as other state-registered unions are termed. If only none of these state registered unions were called 'marriage'! None of them! People could still celebrate their love and commitment in the presence of friends and family, with or without a religious witness. Didn't Italy try this? What happened?
Joan Seymour | 07 September 2017


Purely as a matter of interest, some Churches when I was a youth interpreted the Pauline passage to also eliminate bachelors. (ie 1 wife also forbade 0 wives)
Lindsay Stafford | 07 September 2017


“This is all by way of saying that marriage is a product of the cultural attitudes and religious beliefs of different societies and groups of people. There will never be universal agreement over what constitutes a valid marriage or who should be allowed to marry or not.” But the common thread is that the child is acknowledged to be the offspring of an identified biological mother and an identified biological father, upon whom obligations on the child’s behalf are imposed. Otherwise, why would the pre-Islamic Arabs think it important to make a best approximation on the identity of a polyandrous father? To establish the interest of the child in having an identity by answering, on its behalf, its question, “From whom do I come?” Because so-called same-sex marriage falsifies the empirical facts of the provenance of a child, it is unequal to any of the forms and details of marriage mentioned by the author. The State has an interest in denying this falsification of provenance.
Roy Chen Yee | 08 September 2017


Religious people don't own the word "marriage", sorry. So when the govt is recognising such a commitment of two people, the word "marriage" is appropriate and should apply. Religious people saying "well if we can't control it, you shouldn't have marriage at all" is pretty on the nose, tbh.
Jeremy | 08 September 2017


Dear Rachel, I have wondered whether gay married couples will fill up our Divorce/Family Courts when they want to fight over the "Fridge and the cable bill
maria fatarella | 08 September 2017


States and Churches don't marry people. Two people 'marry' each other. Plainly 'Marriages' were occurring long before there were Churches or States to take an interest in them. Otherwise where did the people come from who formed the States and Churches? Obviously problems arose, and States and Churches took steps, either to try to address them, or to further their own agendas, and to impose their authority. An updated consideration of all the factors involved needs to be made in order to produce satisfactory solutions to problems involved.
Robert Liddy | 08 September 2017


Excellent article Rachel except that what you refer to as 'civil registration' is already, by common usage and legislation called a 'marriage'. Perhaps what we need to do is to deal all religious celebrants out of the civil marriage process, as is the case in France for example, and leave all religions to do as they please.
Ginger Meggs | 08 September 2017


Why doesn't our mainstream media publish articles like this? It cuts through a lot of the rubbish that is thrown around.
Peter | 08 September 2017


For Catholics and some other denominations marriage is both a sacrament and an administrative record. Perhaps when the dust settles - as it will - the Church should give all its attention to the Sacrament and let the State worry about the paper work.
Margaret McDonald | 08 September 2017


When my religious education started in the 1940s and 50s, familiarity with the 10 commandments was not enough. Another bolt-on set called ominously the Commandments of the Church had to be recited as well. They may still exist for all I know. One of them was "To observe the laws of the Church regarding Marriage". Depending on the teacher, this could cover everything from outlawing contraception to (shock, horror) marrying "outside the church". This, and other deviations had the result that the parties were "not married in the sight of God". The corollary was that any sexual activity between them was sinful (again in the sight of God) and, for an added frisson, mortally so. SSM hadn't been thought of, of course, but you can bet the sight of God wouldn't have given it a tick either. When the civil law eventually changes to allow SSM, the Church will no doubt refuse to recognise it and tell the spouses that they are "not married in the sight of God" - as it has been telling those who re-marry after divorce, or who marry outside the church etc. for years. Changing the Marriage Act will make no difference whatever to the "laws of the Church regarding Marriage", so why are bishops (and Abbotts) concerned?
oldG | 08 September 2017


My take on the 'cake question', Rachel, is that those who would refuse to bake a cake for a gay couple would also, in the not so long ago, have refused to do so for a couple of colour. I know a real case of the first sort came up in the Southern USA recently and there was legal retribution. I was thinking more of someone like ++ Julian Porteous of Hobart being brought before the Tasmanian Human Rights Commission for distributing a pamphlet to parents of children at Catholic schools in his archdiocese on the Roman Catholic Church's teaching on marriage. The complainant - who ultimately withdrew the complaint - was, apparently, a transexual woman with a child at a Catholic school. I have no doubt that legal draftspeople will have real problems distinguishing between what I would consider 'real' and 'spurious' exemptions. I went to an Anglican school in Victoria and it was possible, on religious grounds, to ask that your son (it was a boys' school) be exempted from attending the mild, broadly Christian church services twice a week. On the other hand, I don't think a move by a parent to abolish religious services or instruction would get off the ground.
Edward Fido | 08 September 2017


The big problem looming, as has already happened in that great cesspool of decaying Western civilisation, the USA, is that conscientious objectors who don't offer secular services such as photography, catering etc for same sex weddings will be vilified using the law and arguments supporting "civil rights" by the homosexual community with its organised big money, celebrity endorsement and, as in this country, Medical Association backing.
john frawley | 08 September 2017


Thank you, Rachel. Delightfully clear piece. You're brilliant as usual. I'll take your tip and try out Judge Judy some time. Hugs xP
The Reverend Patricia Bouma | 08 September 2017


Brilliant article on the diversity and perversity of marriage and the nonsense of the state. Puts it all in perspective. Interesting that 25 USA states have no minimum age for girls to marry. Thanks Rachel
Pamela | 08 September 2017


When my parents were married in the Netherlands after WW2, they had a civil marriage in the local mayoral building and then a Catholic marriage in the local church. The state was interested only in the civil marriage. I see no reason why that cannot be the case here in Australia. The civil ceremony would be available for everyone, including same sex couples, and would establish the legal relationship between the two people getting married which would then be the legal basis for divorce should that happen. The religious ceremony would be for those who wanted it. Solves the problem, as far as I can see.
ErikH | 08 September 2017


I think, John Frawley, that intelligent people, such as you, need to be very careful before they think the sky will fall in post SSM's advent. I was interested that the High Court verified that the postal poll proposed by the government was legally fine. One of the claims made by those on the Left of this matter was that this was illegal and that parliament should decide, contrary to what happened in Ireland. I myself see no problem with a postal poll. There are people who choose to 'link' SSM marriage to a raft of 'progressive' neo-Trotskyite agendas such as 'gender theory'. Greg Sheridan, in yesterday's Australian put forward an excellent case for voting 'Yes' but preserving religious liberty as we know it. In my opinion cake baking etc. are really not covered by religious liberty. The people who think they are and act on it tend to be bitter sectarians from Ulster or the Deep South. I think we need to be quite clear on this.
Edward Fido | 08 September 2017


I have no problem with people clinging to their belief systems, and expect that because of this many will oppose same-sex marriage. I am not impacted, but do support equality principles generally which is consistent with supporting human civil and procedural rights. I disagree with the author that marriage should be a matter for religious institutions. The religious ceremony is an optional extra for those who wish it. The term marriage is not the exclusive right of religious institutions. Neither the Church or State should meddle in people’s personal lives or attempt to establish a two-tier system in which fundamental rights are eroded based on personal disapproval and resent that the government has chosen to offload their responsibilities to the public by seeking a popularity-based opinion poll so that judgements may be made on who should be afforded human rights. Article 16 of the Universal Declaration of Human Rights recognises marriage as a right and does not exclude same sex marriage. The Universal Declaration of Human Rights http://www.un.org/en/documents/udhr I agree with other responders to this article that marriage is a secular institution covered by secular laws and without reservation support same-sex marriage. Madeleine
Madeleine Kingston | 08 September 2017


If this argument is correct, and the state should get of marriage altogether, then we should eliminate the marriage clause in our Constitution. But Dr. Woodlock’s argument proves too much. Why stop at marriage? After all, as with “marriage”, there are any number of ways the “state” has been conceived by societies – from various forms of autocracy (theocratic, atheistic) through to democracy (Athens, Westminster system) and thence to anarchic systems (medieval Ireland, Australian aboriginal). And just as Dr. Woodlock correctly notes of marriage, there also will never be universal agreement as to what a good “state” is. Given this, shouldn’t our federal and state governments duly abolish *all* the articles of their constitutions, dissolve themselves, and let each individual on the Australian mainland come together with others of like mind and live together in their own versions of “states”? Arguments that prove way too much usually do so because they fail to consider all the relevant facts. And here the facts Dr. Woodlock omits to consider pertain to the objective nature of man, marriage, society and the state. Regardless as to the spectrum of definitions of “state”, some are objectively better or worse than others, according as by their particular form they will, when implemented, tend or not to realise their essential purpose as states — namely, to promote the common good of society. Likewise some concepts of marriage are better or worse than others, depending as to whether or not, when implemented, they tend to promote the optimal raising of children, which is what marriage is essentially for. But—and here’s the link—children, the end of marriage, are the next iteration of society, the good of which is the end of the state. Therefore the state of any society, for the common good, has a duty to identify, acknowledge and promote, as much as it prudently can, the objectively best form of marriage over all rival conceptions. It would spell suicide for our society were our state to wash hands of this fundamental responsibility, difficult though it is to take on in an age when so many hare-brained notions of fundamental objective realities such as man, woman, husband, wife, sex, family, marriage, truth, etc, are floating about that life is rapidly devolving into a series of Monty Python skits, minus the funny side.
HH | 09 September 2017


The churches will have the freedom to marry who and how they wish. The Catholic Church only recognises Catholic marriage anyway. My grandmother had to go behind the altar to marry my grandfather, because he wasn't Catholic. My mother was told to obey her husband. My dear Aboriginal friend was baptised behind the church. Catholics need to look within, I think we should clean up our own church with all that is going on. There's a lot to do without worrying about civil law.
Kate | 09 September 2017


Detriment is faced by all de facto couples either because of regulatory gaps, or failure to uphold provisions like superannuation and industrial laws. Heterosexual couples can choose to marry whereas same-sex couples cannot. Those detriments include the requirement to “prove” the authenticity of a de facto marriage if receiving Centrelink payments; difficulty being recognised as next of kin; contributing to funeral arrangements when a de facto partner dies; difficulty and delays in accessing financial records and accounts, superannuation, life insurance and the like. Video Same Sex-Marriage – The Facts http://www.smh.com.au/video/video-news/video-national-news/samesex-marriage-the-facts-20161003-4leoa.html.Another detriment is the treatment by some retirement villages surviving partners are treated by when a de facto partner does. In a recent case illustrating the scandalous way in which a same-sex male surviving de facto partner Geoff Richards was treated by the retirement village and aged care group AVEO. He and his partner Harry had been personal and business partners for 55 years at the time of Harry’s death and had lived in the village. as a same-sex de facto couple for 4 years at the time of Harry’s death. Geoff was tossed out. ABC Four Corners Bleed them till they die http://www.abc.net.au/4corners/stories/2017/06/26/4689969.htm
Madeleine Kingston | 09 September 2017


Same sex families exist already, HH. Same sex couples already have children. Whatever the relative merits of non-traditional families, and you have your concerns, why would you deny them access to civil marriage? Why would you condemn the children to what you would call illegitimacy? Surely not for the sake of dissuading others?
Ginger Meggs | 10 September 2017


I notice in today's 'Australian' (11 September 2017) an article in favour of the 'No' vote by Mark Coleredge, Catholic Archbishop of Brisbane and one by Jennifer Oriel about the need to make sure that supporters of traditional marriage are protected from various forms of malicious legal action when Same Sex Marriage comes in. Public debate in Australia took a new low when Benjamin Law, author of the latest 'Quarterly Essay', which calls for a national rollout of the Safe Schools Program, tweeted about 'hate f-king' the homophobia out of 'anti-gay MPs in parliament'. Law is a prominent supporter of SSM.
Edward Fido | 11 September 2017


It's taken a while for the penny to drop – although it should have dropped earlier given ES’s visible penchant for publishing opinion pieces that seem to be Catholic heterodoxies - but whenever Dr. Rachel Woodlock appears in these pages ostensibly defending Islam, what she is really representing is a kinder and gentler heterodox Mohammedanism that isn’t Islam. Where in Islam (or the Bahai religion) does it say that it is permissible for the state to allow men to marry men and women to marry women, given that the state must not go against Allah? ES is being more subtle than the serpent in the Garden when what an opinion piece ostensibly on Islam offers for inspection and consumption isn’t the fruit of the knowledge of Islam but the fruit of the knowledge of cafeteria Islam. But, (real) Islam is a serious problem worthy of strong discussion: if we’re to be baited with an article that apparently concerns it, let’s not be switched to an author coming from a fluffy, harmless distortion of it, let’s be confronted by an author who really believes in the genuine stuff or the engagement, instead of being real, will only be feinting at shadows.
Roy Chen Yee | 11 September 2017


This is 'an opinion piece ostensibly on Islam'? You've lost me Roy and, by the looks of it, every other contributor to the discussion. I could have sworn it was about marriage and the state.
Ginger Meggs | 12 September 2017


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