9 December 2011


Marriage is a great institution, but who wants to live in an institution?

Variations attributed to Groucho Marx and Mae West

Having myself been institutionalised twice – first, religiously, in my twenties and again, secularly, in my thirties – and also being somewhat bisexual, I feel uncommonly well-placed to comment on the current absorption with the topic of gay marriage.

Now, it is I think fair at once to stake out my default position – gay men and lesbians (and, for that matter, transsexuals et alia) should enjoy the same benefits as do heterosexual couples when it comes to matrimony: legitimate children; adultery; and ultimately, divorce.

Scholars of matrimony will know that the term originated circa 1300 from the Old French, matremoine, and before that from the Latin, matrimonium, meaning ‘wedlock, marriage’, which comes from the nominative matrem, meaning ‘mother’ + -monium, a suffix signifying ‘action, state, condition’. Thus the origin of ‘matrimony’ is the action, state or condition of, or bringing about, mothering. (In fact the Catholic Church, a trifle oddly, defines matrimony as ‘the office of motherhood’.)

Clearly then, the link between marriage and begetting of (legitimate) children is etymologically intimate.

While adultery and divorce are long-revered states and themselves need no defence, the motivation for legitimate children these days is so thin as to barely amount to a rationale at all: there must be many thousands of schools across the western world where the challenge would be to find a pupil born in wedlock whose parents were still co-habiting.

So, the deep desire for matrimony now is surely due to something far beyond the legitimising of children. But what might that be? Not being a lawyer, I thought hard about it and, in search of a deeper understanding of the status of matrimony, resorted to an incontrovertible source – Wikipedia. There I learnt that:

Marriage (or wedlock) is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found. Such a union...may also be called matrimony. Marriage usually creates normative or legal obligations between the individuals involved.

Well, that’s pretty broad. Nothing excluding queers there. But I’m still not clear on why so many people want to say ‘we do’ to gay marriage. After all, it’s scarcely paradise on earth for straights.

While it’s hard to explain the continuing attraction of matrimony in the modern world, the risks are easier to identify: At the advent of one’s first marriage, it would do well beforehand to hear the American proverb: The most dangerous food is wedding cake. Beyond that, why not consult Samuel Johnson on second marriages: they are the triumph of hope over experience. (And so a third or subsequent betrothal is surely the surrender of hope to delusion.)

Thus, one of the great advantages of being homosexual is, in my view, the avoidance of any general expectation of matrimony. Being gay, why would one want to marry at all? It is rather like, having been told one has a natural immunity to a particularly nasty and long-lasting disease (say, hepatitis C), electing nevertheless to go through the onerous and unpleasant treatment regime.

* * *

The Commonwealth Marriage Act, 1961 defines ‘marriage’ as, the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. This definition, incidentally, was added by the Parliament not in the previous millennium but in 2004, explicitly to exclude those you-know-whos...

But leaving aside the whole a-man-and-a-woman thing, have you ever in all your days heard or read anything so preposterous? To the exclusion of all others? Entered into for life? What nonsense this is.

Haven’t these parliamentarians experienced any adultery and divorce? Don’t they watch TV or the movies or read blogs and books? Can’t they Google like the rest of us?

They need to get out more. Much, much more. And soon: well before they get to vote on any proposed amendment to the Commonwealth Marriage Act.

Indeed all this debate raises an important prior question: Why is there a Commonwealth Marriage Act at all?

The historical answer is constitutional. Here I am indebted to the Australian Parliamentary Library – the Commonwealth's power regarding marriage comes from section 51(xxi) of the Australian Constitution, which states:

The Parliament shall...have power to make laws for the peace, order, and good government of the Commonwealth with respect to: Marriage.

The effect of the Marriage Act 1961 and the Constitution is that the Commonwealth has exclusive jurisdiction over the formation of marriages in Australia – there is no room for States to legislate (although State laws may govern civil unions and de facto relationships). This however does not mean there must be a Marriage Act. There is no reason that section 51(xxi) of the Australian Constitution could not lie fallow, as do some other sections of the Constitution.

Tangentially, the Family Court in a 2001 case (Re Kevin) found that a post-operative female-to-male transsexual had validly married; but that this does not affect the current orthodoxy that a marriage has to be between members of the opposite sex.

Hold on. Does this mean the case-law applies only to post-operative transsexuals?

Hell, maybe then a pre-operative transsexual man-to-woman can’t marry her boyfriend unless she goes through gender re-assignment surgery. Gee, that seems a bit harsh. It’s expensive, painful and potentially dangerous, you know. And the guy might love her precisely because she’s a chick-with-a-dick. (Addendum - See comment below on recent High Court case).

But who honestly cares? In reality, the contemporary social edifice of matrimony is hypocritical tripe – just contemplate if you dare the nowadays routine occurrence of multiply-divorced parents happily escorting their adult children for the first time down the sorry old aisle. In my experience gay men and lesbians are on the whole far too sensible to be seduced by such drivel.

Yet, having said that, why should we accept and expect the lives of innocent heterosexuals to be traduced by such tradition?

What’s the point? Legally, it could all be done through de facto relationship/civil union legislation, with default provisions for couples over 20 and co-habiting for more than two years, or for less time if they have children from the relationship, and a sunset/re-negotiation clause that could come into effect after, say, 10 years, but would not be triggered as long as (mutual) love shall last: what in effect we have today with the legal architecture of marriage and divorce.

This wouldn’t preclude the important business of weddings, by the way. It would just make them legally otiose. Love-struck couples no doubt continuing to be so inclined, they would still be able to indulge in their religious, secular or simply bizarre ceremonies on land, at sea or in the air. Women (and indeed men) could still play princess for a day at the inordinate expense of their families.

Yep, the solution to the ‘problem’ of gay marriage is self-evident: repeal the Commonwealth Marriage Act, 1961 and replace it with...nothing.

Now, If only there were a (pre-operative) transsexual parliamentarian I could interest in my proposal.

An edited version of this piece appears on the online journal New Matilda at http://newmatilda.com/2011/12/09/repeal-marriage-act


Anonymous said...

Hi Enrico,

Did you hear about this High Court case from a couple of months back? http://www.abc.net.au/news/2011-10-06/transgender-win-in-the-high-court/3317560

It might answer your question re the ability of pre-operative trans people to marry.

Dr Enrico Brik said...

No, Anonynous, I hadn't. Thanks you so much for the link

It even further reinforces the nonsensical position regarding gay marriage. A pre-operative M2F transsexual can, as a woman, marry a man, but two men or two women can't marry each other.

I wonder, does that mean the transsexual can't marry someone of their new sex?

Anonymous said...

This article just reads like some minority group blowhard who is trying to pervert the course and integrity of traditional marriage. Marriage should not be a victim of minority group social trends, but rather 'alternate lifestylers' should be provided some alternate means of publicly proclaiming their relationships without corrupting the meaning of traditional marriage between a man and a woman.

Dr Enrico Brik said...

Another Anonymous - but surely not the same one...

Well, I don't know about minority group, or perverting anything, but I'm certainly trying to undermine the traditionallegal status of marriage.

But your social view of traditional marriage would no more be a victim of my proposal than it has already become. Hence my concluson about it being hypocritical tripe.

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