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Australian philosopher, literary critic, and professional writer. Author of FREEDOM OF RELIGION AND THE SECULAR STATE.

Tuesday, May 06, 2008

Rudd blocks civil unions bill in ACT

If anyone wants evidence that Australia is not quite a post-religious country and that pious viewpoints continue to exert too much political influence, even here in the Great Southern Paradise, well here's something for you to latch onto.

The government of the Australian Capital Territory (the area carved out of New South Wales to house Canberra, the national capital) is trying to enact legislation to provide for civil unions of gay couples. However, the federal parliament has the power to block ACT legislation (indeed, it has sweeping power under the Australian Constitution to enact laws for the territories, as opposed to the states). On a number of occasions in recent times, federal parliament has moved to block or overturn progressive territory-level legislation.

In this case, the federal government led by the smiling conservative, Kevin Rudd, has been negotiating with ACT politicians. It threatened to block the legislation because it provided a form of civil union supposedly too close to mimicking marriage. Apparently, the sticking point was that the law would provide for a ceremony that Rudd and company considered marriage-like. In the face of the feds' threat, the ACT will now enact watered-down legislation.

Federal parliament does ultimately have the power to override laws enacted by the parliaments of the ACT and Northern Territory, but that power dates back to an earlier time when the territories were small in population, and weak in expertise and infrastructure. Things have changed since then, and one might question the propriety (as opposed to constitutional legality) of federal politicians interfering to overturn duly enacted legislation from the ACT parliament - if it had ever come to that. But in any case, why should the federal parliament interfere in an issue such as this - effectively to stamp its own traditional view of marriage on the ACT's local public policy? If ever there was an issue where the federal parliament should have butted out, this is it.

When the Rudd government was elected (with my vote, amongst so many others), I recall expressing scepticism to friends as to how big an improvement it would be on the reactionary regime that preceded it. My friends convinced me that I was too pessismistic, but now I wonder.

As for the broad political issue of marriage, I take the view that the state should keep out of the marriage game altogether. What sexual, domestic, and child-rearing arrangements competent adults want to enter into should be (as it by and large is) up to them. Already, the criminal law leaves these things alone - we have no laws against adultery, fornication, polyamorous arrangements, or gay sex, and nor should we. The apparatus of government should interfere only to protect the welfare, and ensure a reasonable standard of education, of children. It should not give its imprimatur to, say, the arrangements of heterosexual couples rather than homosexual ones.

If people of any sexual orientation want to have a religious wedding and be registered as "married" by their cult of choice, large or small, that should also be up to them, but the state should keep aloof from it.

On this approach, the courts would still need to settle disputes when relationships break down (if there are children involved or issues of monetary/non-monetary contributions), but there's a wealth of experience in the courts with settling such issues, and the principles wouldn't need to change in any massive way if the state stopped registering certain arrangements as "marriages". (Even now, judge-made law can deal with situations that fall outside of any legislative framework; the courts can fall back on equitable doctrines such as those relating to constructive trusts.)

My view that the state should essentially opt out of the marriage business is, however, an idealistic and long-term option. Meanwhile, since the state goes on recognising "marriages" for heterosexual couples, I don't see why it shouldn't do likewise for homosexual couples. Not doing so tends to suggest that there is something second rate about gays' relationships, and perhaps about them as citizens. It's an unneeded slap in the face.

The most that can be argued against providing by legislation for gay marriage is that if the state does not bother to provide for it, and if it gradually brings all benefits to de facto heterosexual couples into line with those for married couples, and if it treats gay couples like heterosexual de factos ... then it will, indeed, eventually pretty much opt out of the marriage game by stealth. Eventually marriage will be legally meaningless. I would respect a politician who argued for that approach explicitly in the public debates, but of course it will never happen.

But let's come back to here and now. This week, we have seen federal interference with a planned territory-level arrangement that wouldn't even be called "marriage". The feds have gone out of their way to interfere, apparently to protect the symbolism of heterosexual marriage as some kind of religious sacrament or at least something with quasi-religious significance in the eyes of the state. I think that this particular act of bastardry, as John Wilkins has called it, stinks like the proverbial dead cat. I hope it's not too much of a sign of what we can expect in future from the smiling conservative and the Labor Party crew.

35 comments:

Brian said...

I think Rudd's not liberal enough to be a true labor type, but definitely liberal enough to be in the "Liberal" party.

Thomas Hendrey said...

This seems bizzarre to me, but then I suppose I'm following politics all that closely at the moment. It says in the article that Rudd has made a promise not to interfere with territory legislation, so then the official line is that the proposed ACT legislation is so much against the national interest as to consitute an exceptional case?

To be honest I don't think there's much if anything more to be said for legislating for homosexual marriage than only legislating for heterosexual marriage. Either way you are discriminating against people with a different view of marriage. Maybe in the actual world it is more harmful that only heterosexual couples can be legally recognised as marriages and that in the current political circumstances that is the only goal with medium term chances of success. But I think we should keep in mind that in pushing for homosexual marriage to be legally recognised we are pushing to enshrine in legislation a symbolism which may well be offensive to people with certain religious beliefs - bad both from a liberal standpoint and pragmatic political considerations.

So if my understanding of the current political climate is close to correct, I'm not going to complain too much if some politician wants to defend the traditional definition of marriage. But this action by the federal parliamant seems to go far beyond this and I don't understand it. Firstly to say that the ceremonies must be sufficiently different from marriage seems to quite positively state the inferiority of homosexual couples. Secondly it forces ACT to keep a symbolism in its legislation which clearly the majority in the ACT dislike. Thirdly if Kevin Rudd made a promise not to interfere with territory policy he needn't be seen as endorsing the legislation by allowing it - he could just refer to the promise. I'm probably missing all the political nuances but this sound to me like very disturbing news.

01 said...

You have to bear in mind - just some decade-and-something ago, homosexualism was thought to be a disease.
When it was scientifically found to be a variant of normal human condition, many of, let us put it mildly, "mentally inflexible" people simply found it impossible to reconcile themselves with this fact.

You can expect the books to change fast to correct mistakes and reflect better ideas.

But expecting people will be as fast to reject deep-seated, wrong memes is overly optimistic.


P.S.:
Sometimes, a it takes the bearer of an old, false idea to die of old age for a new, better idea to finally get the well-deserved recognition.

Brian said...

But I think we should keep in mind that in pushing for homosexual marriage to be legally recognised we are pushing to enshrine in legislation a symbolism which may well be offensive to people with certain religious beliefs - bad both from a liberal standpoint and pragmatic political considerations.
I don't quite follow the logic. People are allowed to believe what they like, insofar as it doesn't impinge on the rights of others. That is religious people have a duty to allow others to be free in their lives (if we all have the same rights, we all have the same duties). If a religious person finds that others expressing their rights offensive, so what? They are just not upholding their duty. It's not illiberal is it? From a pragmatic politician's point of view it may be bad however. :)

Maybe I don't understand this issue well. :P

Brian said...

I should've said, if they find it offensive and try to mold legislation that is illiberal, then they're not upholding their duties.

Thomas Hendrey said...

Brian, I'm not suggesting anyway should denied the right to call their relationship a marriage perform whatever ceremonies they see fit, and whatever so long as there is no harm to non-consenting parties (and I don't want to count the discomfort felt by some people as harm in the right sense, how to make sure it doesn't count is a trcky issue though). Neither do I want to deny homosexual couples any rights married couples have.

The issue I have has nothing to do with aspects of the law that should have substantive consequences in a court of law. The issue is simply what should be legally defined as marriage which is a symbolic issue and nothing more. As such I think it is pretty obvious that liberal states should, as Russell says get out of the marriage business. However this is unlikely to happen in the near future unfortunately or so it seems.

So long as the state stays in the marriage business it's a question of offending one group of people or another. Now there seems a lot to be said for saying it is preferable to avoid offending a marginalised minority such as homosexuals, so given the current political climate you might argue the best we can achieve in the medium term is legalisation of homosexual marriage.

But I'm not convinced that this is right. Firstly legislating for homosexual marriage seems to actually be a long way off in Australia anyway. Secondly I think it would be bad for people who still want to defend liberalism to support one view of the good over another. Thirdly it will alienate people who we should not want to alienate I think. That is people with strong religious convictions about what marriage is but on liberal grounds want homosexuals to have equal rights. I think there is such a group of people and I think alienating them from liberalism would be very bad.

Anyway Brian back to what you said I hope you can see I don't have any problem in homosexuals (and heterosexuals who share their conception of marriage) in expressing themselves what I do have a problem with is using the legislature to do it. This is exactly the problem with having marriage defined as heterosexual in the legislation to begin with isn't it?

Brian said...

Very well said Thomas. I think you're pretty much right there.
Thanks for clearing my confusion up.

stuart peace said...

"If people of any sexual orientation want to have a religious wedding and be registered as "married" by their cult of choice, large or small, that should also be up to them, but the state should keep aloof from it. "

Very good quote, I think I might add it to my facebook profile...

John Howard said...

Of course the state must care about whether or not to allow same-sex couples to conceive children together, just as it cares about allowing cousins or siblings or people married to other people to conceive children together. Never before has a couple that has been prohibited from conceiving been allowed to marry, and vice versa. Civil unions therefore make sense only if they do not guarantee conception rights, so that they can be given to couples that are prohibited from conceiving (and therefore marriage).

Though everyone has been a colossal idiot so far, soon people will realize that the question of whether or not to allow SSM is the same question as whether or not to allow same-sex conception. Separating these questions would strip the protection of conception rights from marriage, allowing the government to prohibit people from conceiving even if they are married.

Brian said...

Never before has a couple that has been prohibited from conceiving been allowed to marry, and vice versa.

Where'd that come from? No one is denying conception rights from gays. A homosexual male can father a child and a homosexual female can carry a child. So, there's no reason they can't be parents. Perhaps you mean that 2 men or 2 women can't conceive a child by themselves. Well, of course, but that's biological, not some legal prohibition. Just as a heterosexual couple may need to make use of fertility treatments, because of biological reasons, so may a homosexual couple. Otherwise there is unjustified discrimination.....

John Howard said...

Perhaps you mean that 2 men or 2 women can't conceive a child by themselves. Well, of course, but that's biological, not some legal prohibition.

This on a transhumanist blog? Or maybe this isn't a transhumanist blog. At any rate, I'm surprised you haven't heard of same-sex conception.

Google "female sperm" or "same-sex procreation". Not only are scientists working on ways to produce opposite sex gametes to enable same-sex couples to have biologically related children together, but also people are claiming a right to use these reversed-imprinted gametes as soon as they want to.

I'm saying that the question of whether or not to allow their use is the question of whether or not to allow same-sex marriage. If you think same-sex conception should be allowed, you probably (no, certainly) believe same-sex marriage should be allowed to. But I don't think same-sex conception should be allowed, and I think all marriages should be allowed to conceive.

Brian said...

This on a transhumanist blog?

I'd better leave. I thought it was a place where I could bait Russell. My bad. ;)

Why don't you think same-sex conception should be allowed?

Thomas Hendrey said...

"Of course the state must care about whether or not to allow same-sex couples to conceive children together, just as it cares about allowing cousins or siblings or people married to other people to conceive children together."

Fair enough, the state has some significant interests in who has children, I believe, however, that there is no evidence that children with homosexual parents are disadvantaged, to any significant degree so the state should allow homosexuals to conceive.

"Civil unions therefore make sense only if they do not guarantee conception rights, so that they can be given to couples that are prohibited from conceiving (and therefore marriage)."

I don't understand this sentence is there a typo somewhere?

"soon people will realize that the question of whether or not to allow SSM is the same question as whether or not to allow same-sex conception."

No the questions should be very different. There are propoenent of conceptions of marriage that seem to imply that those who are not allowed to have child should not be allowed to marry (e.g. Margaret Sommerville's idea of 'inherently procreative relationships'). But why, when there are so many views of marriage around, should the state choose this one?

I believe in legislation marriage is DEFINED as a relationship between a man and a woman. This means that people who said they are being denied the right to be married to someone of the same sex would not be talking sense if this definition was accepted. It'd be like saying that I am denied the right to draw round squares. the thing is marriage means something else then a particular relationship between a man and a woman to many people. So legally defining marriage does is write a symbolism into the law that shouldn't be there.

"Separating these questions would strip the protection of conception rights from marriage, allowing the government to prohibit people from conceiving even if they are married."

What's the problem here? I think you are again assuming a controversial conception of what marriage is. That is as some institution for some unmitigated right to reproduce. You are also assuming we want to allow an unmitigated right to reproduce to all those people who are currently able to be married. Firstly many people have a rather different conception of marriage to this. Secondly it is far less plausible that we should allow that every couple who could currently be legally married should be granted an unmitigated right to reproduce than it is that there are at least some homosexual couples whom the state has no interest in preventing from reproducing. There's also a feel we're getting into slippery slope arguments here but I won't go into that.

"If you think same-sex conception should be allowed, you probably (no, certainly) believe same-sex marriage should be allowed to."

This is unclear. I think same-sex conception should be allowed but I don't think same-sex marriage should be recognised. I think Russell also thinks this would be ideal. So if that goes against what you're saying then you're wrong. If you mean though that all those who think same-sex conception is OK think (or should think or would think under certain conditions) that same-sex couples should be allowed to have relationships which they call marriages then surely this is just true because everyone but those with totalitarian tendencies would surely say that. So either I have no idea what you're saying or your statement is wrong or trivial.

Brian said...

Thomas, I'm probably going out on a limb here. But I think you should study philosophy. ;)

John Howard said...

Why don't you think same-sex conception should be allowed?

That's a topic for another thread, as there are many many reasons. The point here is that however we resolve that should be how we resolve the marriage question too, so that all marriages continue to have a right to conceive together, using the couple's own genes. Civil Unions should be defined as exactly like marriage except lacking the right to conceive together, using the couple's own genes.

John Howard said...

I believe, however, that there is no evidence that children with homosexual parents are disadvantaged, to any significant degree so the state should allow homosexuals to conceive.

Parenting isn't the issue, it's whether or not to allow people to attempt the conception, since same-sex conception requires using modified gametes. Using modified gametes is the issue. Marriage has nothing to do with parenting rights (there are no such thing - all marriages can have their children taken away, even immediately upon birth if the state has decided the parents are unfit), only conception rights (which all marriages have and can't be taken away by the state).

no, there's no typo there, CU's should be distinct from marriage - they should not give conception rights, so that couples that are prohibited form conceiving together can nevertheless get the other protections of marriage.

Sommerville is a hero, she's spot on, just not vocal enough.

But why, when there are so many views of marriage around, should the state choose this one?

In order to protect everyone's conception rights. If the questions are separated, then married couples have lost the protection, they are just like same-sex couples and their conception together is subject to genetic tests and safety qualifications. It shouldn't be, every marriage should be allowed to conceive with their natural gametes.

You are also assuming we want to allow an unmitigated right to reproduce to all those people who are currently able to be married.

Yes, certainly. All people should have a right to marry, and all marriages should have a right to conceive (in principle) with their own genes. It doesn't mean they have a right to access any and all sorts of lab techniques to accomplish that, it just means they cannot be publicly prohibited in principle from attempting to join their gametes. Same-sex couples should be prohibited from attempting to join their gametes. Marriage should mean that the public approves of the concept of this couple joining genes and creating offspring.

that there are at least some homosexual couples whom the state has no interest in preventing from reproducing.

No, all same-sex couples require use of modified gametes to reproduce, and we should prohibit use of modified gametes, especially when their use increases rather than decreases potential harms for the child, as reverse-imprinting does.

I don't think same-sex marriage should be recognised

Really? Oh, are you opposed to government recognition of marriage in general? I have come across people who are very anti-gay who react to this issue by saying that even if same-sex conception were possible, we should still not allow SSM or give any government approval of homosexuality, they seem to think that we will have to allow same-sex conception (or in my paranoid mind they are just eugenicist stooges making false arguments against SSM that will become arguments for SSM when SSP is possible). I don't understand those people, anyone that thinks same-sex couples should have conception rights ought to insist on equal marriage rights too.

Steve Zara said...

But I think we should keep in mind that in pushing for homosexual marriage to be legally recognised we are pushing to enshrine in legislation a symbolism which may well be offensive to people with certain religious beliefs - bad both from a liberal standpoint and pragmatic political considerations.

In the UK things have progressed in an interesting way. Offense was caused, but primarily it seems to those in religious authority, not so much to the general public.

Things have progressed with religious groups struggling to deal with what has been happening, yet there has been little or no political pressure to roll things back.

I don't know how this parallels the situation in Australia, but if it does, I don't think causing offence will matter.

Brian said...

I don't think causing offence will matter.

What's that saying?

Nobody has a right to not be offended. It's impossible not to offend someone unless everybody thinks exactly the same. It would be an impossible right to uphold. How would you or I keep our duty of not offending everybody without it offending us anyway?

Steve Zara said...

Brian-

I believe the point being made was that recognising gay marriage might cause offense and so would alienate those who would otherwise support liberalism.

I think the UK experience implies that this need not be a concern. I am not sure quite why, but the introduction of civil partnerships progressed smoothly, and did not cause major upset (athough a Bishop or two have blamed this for last years's floods - perhaps Australia would suffer climatic problems too...)

Brian said...

perhaps Australia would suffer climatic problems too.
Wow, we could fix the Murray-Darling basin issue in a flash. If we allow same-sex marriages/unions, then we'll get a large flood that'll revive the river. Good idea Steve.

Steve Zara said...

Brian-
This does imply that carefully targetted sexual immorality could perhaps be used to counteract the negative effects of global warming. Perhaps there should be a task force of gays ready to fly out and induce precipitation anywhere at short notice. Even if it didn't work, it would be more fun that prayer...

Brian said...

Perhaps there should be a task force of gays ready to fly out and induce precipitation anywhere at short notice.
I take it you've seen Queer eye for the straight guy then. :)

Thomas Hendrey said...

John,

you said you this wasn't the thread to talk about the ethics of homosexual procreation so I wont go into that argument. The point I would make is that your conception of marriage is simply not a particularly common one. In support of this:
1.People pretty much have an unmitigated right to conceive in this country whether they are married or unmarried (I hope there would be a lot of uproar if there were questions about the legality of unprotected sex between healthy consenting adults.
2. I believe homosexuals have been campaigning for marriage rights from long before there was any suggestion of the possibility of homosexual procreation - Was this really as ridiculous as Steve's quest for the right to have babies in Monty Python's Holy Grail?
3. Many people marry without ever intending to have children for whatever reason.
4. To account for the nature of the public debate on homosexual marriage, you must, as you have already admitted, say that "everyone has been a colossal idiot so far", and was there a hint of conspiracy theory at the end of your last post?

There is a very simple way to account for all of what I have just said - that is that different people have different conceptions of marriage. Marriage is, after all, a rather old instition which has its origins well before the modern distinctions we have between religion, culture and law, and we do live in a multi-cultural society.

Since marriage has such an important cultural/religious significance to many people, and because for different people these meanings are different marriage is simply not a term that should appear in the law period. If you think that we should not interfere with gametes you should make a law about interfering with gametes. If you think a certain class of relationships require special protection of their rights to procreate you can create a law. You can even fly more explicitly (although perhaps less significantly) in the face of liberalism by trying to enshrine in legislation a national symbolism to give some sense of national identity and whatever and you might want, as part of this to have some recognition of 'inherently procreative relationships'. But even then you should not use the word marriage because it is simply not something that is going to cut accross the wide variety of cultural and religious affiliation you find in Australia at any rate - my guess is it would apply to most other countries as well.

Steve,

While you'll notice that I say causing offence is bad BOTH from a liberal standpoint and pragmatic political concerns. The pragmatic concerns are my main reason for not wholeheartedly agreeing with Russell on this issue, but I think Russell and I both agree that in an ideal world the state would not recognise homosexual marriage because the state would not recognise any sort of marriage.

Why would I think that? Because recognising something as a marriage is a merely symbolic thing and the legislature should not be involved in that sort of symbolism. There is a case that the executive should be involved in symbolism (the recent apology being an example of symbolism that it was plausibly the right thing for the executive to engage in) but even it shouldn't be involved in marriage.

Why is this? Because it will cause offence and offence DOES matter. Liberals should not be against restriction on free speech because physical harm is the only sort of harm worth talking about. The reason most laws against causing offence should be opposed by liberals is that the reduction of freedom of expression is worse than the offence prevented.

In fact the reason to be very careful when introducing any legislation against causing offence is rather similar to the reason to very careful when introducing legislation which contains symbolism which might cause offence. The reason is that it is not the role of the state to decide questions such as how the good life should be lived. It should thus not deny people with different views from expressing them and it should not promote any particular view either. That is it should not deny people the right to express themselves even if others might take offence at their views, and it should not promote any particular comprehensive world view or put in legislation symbolism that some sections of the community would find offensive.

Steve Zara said...

Thomas-
About recognition of marriage. I have to admit I have mixed feelings about this. I can see the need for some registration of parenthood, simply to assist with the care of children.

However, I believe it is extremely unlikely that state-sponsored marriage is going to vanish in the near future. While it remains, and while it has symbolic value, it seems desperately unfair to prevent same-sex couples from assigning the same value to their relationships using this institution.

Also, I just can't go along with your association of giving offense with limiting free speech. Legislation is almost always about promoting a particular point of view, and that can often give offense. An example is rights for women, and for people of different race.

I think it is a positive thing for a progressive government to pass symbolic legislation, even if some do find that offensive. Rights shouldn't have to wait until all in society approve of them. A good government can put the case, and persuade most people that these rights are appropriate. Our current UK government did this with equal age of consent, with civil partnerships, and recently with the rights of same-sex couples to expect equal treatment with others by businesses, and to adopt. There were some who were offended, but the government persuaded the majority that these moves were appropriate. The alternative would be to wait for generations at least.

It may not be appropriate for the state to decide how the good life should be led, but it is surely part of a progressive state's role not to allow some people's ideas about what is and isn't "good" to significant limit others' freedom to share in the rituals like marriage.

Thomas Hendrey said...

"However, I believe it is extremely unlikely that state-sponsored marriage is going to vanish in the near future. While it remains, and while it has symbolic value, it seems desperately unfair to prevent same-sex couples from assigning the same value to their relationships using this institution."

Yes this is right. However I would point out that homosexual marriage also seems unlikely to be recognised in Australia in the near future. It also seem to me that by campaigning for homosexual marriage one reduces one's ability to campaign for the abolition of state recognition of marriage. Further since the view that no marriage should be recognised is essentially a compromise between those with different views of marriage, it doesn't follow from the fact that virtually no-one can be heard compaigning for the abolition of state recognition of marriage that this i farther off than the recognition of homosexual marriage.

"Also, I just can't go along with your association of giving offense with limiting free speech. Legislation is almost always about promoting a particular point of view, and that can often give offense. An example is rights for women, and for people of different race."

To be clear I am not saying giving offence just is limiting free speech. I am saying the reason a liberal state should not have offensive symbolism in its legislation is similar to the reason why it shouldn't have acts prohibiting offensive sybolism in its legislation. That is it is not the role of the state to decide how we should view the world. This does not imply that the state should not make value judgements which would of course be an absurd view since the state is there for a reason.

"I think it is a positive thing for a progressive government to pass symbolic legislation, even if some do find that offensive. Rights shouldn't have to wait until all in society approve of them."

Um. I don't get how these two statements are related. Symbolic legislation I would say is legislation NOT involved in protecting rights, prohibiting crimes etc. it is legislation that is merely recognises certain things or gives certain messages, like - I dunno - legislation recognising marriages. So saying we shouldn't pass symbolic legislation that might offend can never imply that rights have to wait for everyone to accept them because any legislation that protects rights is not symbolic legislation in the sense that I find problematic.

"It may not be appropriate for the state to decide how the good life should be led, but it is surely part of a progressive state's role not to allow some people's ideas about what is and isn't "good" to significant limit others' freedom to share in the rituals like marriage."

It all depends on what you mean by a sharing in rituals like marriage. What I will say is that of course everyone has the right to perform whatever rituals they want and to call them whatever they want (subject to restriction based on harm to others of course). I think we pretty much have this right as things stand though - I don't think there's a law against homosexuals saying they are married.

There are a number of other ways a right to share in rituals like marriage might be interpreted that nobody should have. For example nobody has a right to participate in someone else's rituals unless invited, nobody has the right that other people recognise their rituals as significant and nobody has the right that other people call the rituals they perform by the same name they do. To legislate for the recognition of marriage is to grant some people one of these rights no-one should have or to pass legislation doing nothing but tell us how to view the world. Either of these would be wrong from a liberal point of view.

Steve Zara said...

Symbolic legislation I would say is legislation NOT involved in protecting rights, prohibiting crimes etc. it is legislation that is merely recognises certain things or gives certain messages, like - I dunno - legislation recognising marriages.

I think "symbolic legislation" is a misleading term. What I meant was legislation that includes symbolic meaning. I see no reason to avoid that.

I think we pretty much have this right as things stand though - I don't think there's a law against homosexuals saying they are married.

I don't know of Australian law, but I can't believe you are right here. If someone ticked a box saying "married" on a legal form, that would be providing incorrect information.

To legislate for the recognition of marriage is to grant some people one of these rights no-one should have or to pass legislation doing nothing but tell us how to view the world. Either of these would be wrong from a liberal point of view.

I disagree. Maybe I misunderstand the term "liberal" as you use. It sounds more like the term "libertarian" as used in the US.

It seems odd to campaign to remove rights rather than to extend them, and vast amounts of legislation has implications for how people view the world, from the provision of health care, to employment rights.

Some communities consider women inferior. Is passing laws for equal pay and voting rights for women wrong? It offends those communities and is certainly expressing a view of the world.

Thomas Hendrey said...

"I think "symbolic legislation" is a misleading term. What I meant was legislation that includes symbolic meaning. I see no reason to avoid that."

Legislation is made using letters that is symbols, and has meaning that comes from those symbols, that is symbolic meaning. So of course there's no reason to avoid that. The main issue here though is that I am arguing against legislating for the recognition of marriage because it is merely symbolic legislation. It is no argument against me that you mean something else by symbolic legislation. If ther is any point to saying you mean something different by symbolic legislation in the cintext of our debate you have to put it to some use. But all you've done is to say that some symbolic legislation on your definition is good. It does not follow from this that legislating for marriage is good.

"I don't know of Australian law, but I can't believe you are right here. If someone ticked a box saying "married" on a legal form, that would be providing incorrect information."

This is beside the point, the point of the legal form is to give information it is not intended to be symbolic. For example it is also true that you may speak any l whatever language you like, but you cant fill out english legal forms in Japanese. Or still better for my case, it is within the law for me to use a language just like english with reversed truth conditions. That is not P would mean P for example, it would be very bad for a liberal state to require me not to speak that language. But when I'm filling out the legal forms I can't fill them out speaking this other language.

I don't deny that it shows a problem in the law that homosexual couples must mark that they are not married on legal forms. But the reason is the forms should not be asking such questions.

"I disagree. Maybe I misunderstand the term "liberal" as you use. It sounds more like the term "libertarian" as used in the US."

I mean liberal in the sense of the broad tradition of political philosophy starting in the thought of the likes of Locke and Mill - I'm pretty sure I don't mean libertarian (although I don't think the views diverge on this particular issue) - but of course I might just be confused.

"It seems odd to campaign to remove rights rather than to extend them, and vast amounts of legislation has implications for how people view the world, from the provision of health care, to employment rights."

But the abolition of the recognition of marriage does not remove rights! This is precisely the point I have been arguing. What right does someone in a society in which marriage is recognised by the state have that someone in a state in which no marriage is recognised lacks?

Also I thought, obviously mistakenly that I had been clear in my last post that I do NOT have a problem with legislation influencing the population's world-view. What I do have a problem with is legislation designed for no other purpose but to promote a particular world-view or enforce it or create symbolism consistent with it etc. The main point of the provision of health care is to provide for the health of citizens, the main point of legislating for emplyment right is to protect the rights of employees.

Of course to some world-views the provision of public health care is wrong (maybe libertarians for example) but that is not an argument against it from my point of view. Legislator's should have moral views (the view legislator's should be leberals is a moral view), and they should enact legislation based on those views. What they shouldn't be doing is telling us what our views should be (although if we have bad moral views they can enforce us to act against our moral judgement). What they should also avoid doing is 'recognising' the truth of some world views (for example the view that marriage is not the sort of relationship that can only be had with a man and a woman).

"Some communities consider women inferior. Is passing laws for equal pay and voting rights for women wrong? It offends those communities and is certainly expressing a view of the world."

Obviously passing such laws would not be wrong and obviously such legislation results from a particular view of the world and is obviously offensive to some communities and this is obviously nothing against anything I have said. Suppose though that such a community had a legally recognised position 'head of the household' only available to men. What I am arguing is that it would be offensive to the community and therefore wrong to say that they should legislate for the recognition of some women bearing the title 'head of the household'.

It would in fact be to change the meaning of the term 'head of the household' as it appears in the law, and would be saying you should view family relationships in this way. The point is it says this directly in the legislation not through enforcing actions in line with having this view but by saying this view is right. What we should say instead is that it is perfectly within your rights to hold that there is some position called 'head of the household' which is only something men can attain, however it is not within your rights to have others recognise this position, it is also not in your rights to mistreat women because they cannot hold this position, nor is it within your rights to enshrine in legislation special priveleges for those you have chosen to call 'head of the household'. That is we should argue for the abolition of the recognition of head of the household, just like we should be campaigning for the abolition of the recognition of marriage.

Steve Zara said...

Thomas-

Maybe I am mistaken about the nature of the legislation, but the recognition of marriage in law has, as far as I know, always been about more than just symbolism. It is about legal rights, and also about protection, both for the couple and for any children involved.

In the UK there has been pressure for civil partnerships because of issues such as pension rights. Registering partnerships legally can give protection to those involved in cases where families may be hostile. It allows rights to be enforced.

There is also some symbolic aspect as well, and I think that it is useful. Part of the reason my partner and I registered our relationship (in a rather wonderful ceremony, with both families involved) was to show people that our situation was equal to heterosexual marriage.

It is all very well to campaign for the state to get out of marriage, but that is going to be a long fight. There are issues of inequality, both in terms of legality and symbolism, that should be dealt with before then. I believe that anyway.

Obviously passing such laws would not be wrong and obviously such legislation results from a particular view of the world and is obviously offensive to some communities and this is obviously nothing against anything I have said.

Perhaps I misunderstood you. I read what you had said as that it was mistaken to pass legislation that may cause offence to those who might otherwise support progress towards a liberal society. I think that is problematic. Different individuals and different groups may support different aspects of a liberal society. Some may be very much in favour of women's rights, but abhor homosexuality. I think we have to lead in these matters, not appease.

What they shouldn't be doing is telling us what our views should be

Allowing same-sex marriage isn't doing that. It does not force people to approve of it, and it doesn't force people to make use of it. It is about allowing all couples equal access to the resources of the state.

Thomas Hendrey said...

Hey Steve,

It sounds like we are in substantial agreement. It is of course part of my position on this issue that before anything else is done homosexuals receive equal rights to heterosexuals. If people insist that some rights should only go with marriage then I will have to relunctantly agree that we should be campaigning for homosexual marriage. However it is also part of my position that we should desire that rights are removed from marriage as much as possible and ideally that is what I'd want to see being the campaign. And then finally the main point I have been arguing for is that marriage should be removed from the legislation altogether.

If you agree with this then the only possible point of disagreement is whether it is right to campaign for the recognition of homosexual marriage in the current political situation. I'm actually not sure what the answer is to this is and it's not a question I think I'm well suited to answer. I'm a young, naive, idealistic, white male middle class philosophy student, and to answer this question one has to evaluate the chances of success of various different campaigns and how much is at stake for various different sectors of the community. All I wanted to do here apart from supporting Russell in saying that ideally the state wouldn't recognise marriage is to point out considerations that I thought might be liable to be overlooked. That is the offence and alienation of people with a 'traditional' conception of marriage. This is not intended to be decisive, adn the whole issue is so messy that I just wish it was unimportant and I could just go back to doing philosophy.

Steve Zara said...

I am sure we would not be that far apart in terms of views.

All I really wanted to do here was to point out that much of the supposed alienation that I expected in the UK simply didn't materialise. My feeling is that that this need not be that much of a concern.

But that is just my feeling.

Thomas Hendrey said...

Yeah, you have a point there Steve, although I'd still wonder whether calling the civil unions marriages might cause more offence. Of course there are some progressive countries that have legalised homosexual marriage, which probably lends some support to the idea that that's the best achievable outcome in the medium term - but as I say it's a question for someone with considerably more experience than me to answer.

Russell Blackford said...

I must read the thoughtful contributions to this thread carefully, but one thing strikes me. Historically, marriage was not about giving rights. It was about regulating sexual conduct - if you weren't married then you weren't supposed to be having sex (or children). By recognising only some relationships as marriages, the state recognised only some people as having the right to have sex found families. In effect, it took away everyone else's right to do so and then gave married people the "right" only against that background (after all, having sex and having children are things that anyone can do with no particular assistance from the state, above and beyond what the state provides for everybody, such as conditions of peace within a geographical area where the sovereign exerts power).

We have already destroyed this historical purpose of marriage - restricting access to sex - by getting rid of laws against "fornication" and "adultery" ... and that's a good thing in my opinion. With those laws swept away, marriage as a special status recognised by the state is now an anachronism.

Sure, let people within a cultural or religious group recognise something as "marriage". But the state should not be influenced by whatever particular cultural or religious groups, among the many in a pluralist society, want to do. It should concentrate on providing a framework within which people from many such groups (and those who wish to deviate from the norms of existing groups) can live in a degree of harmony.

I do support provision for gay marriage as a short-term political compromise, since none of these ideas are absolutes and compromises are often necessary. But in principle, and in the long term, the state should simply be more rigorous about what it's gradually been doing for the last several decades, i.e. getting out of the marriage business.

John Howard said...

We have already destroyed this historical purpose of marriage - restricting access to sex - by getting rid of laws against "fornication" and "adultery"

But doing that didn't change marriage's protection of conception rights. Consider this analogy:

Imagine if there was a "summer of driving" in 1967 when kids just started driving without getting a license and morals changed, and the state stopped treating licensed and unlicensed drivers differently, and even got rid of laws against driving without a license. Soon, people would begin to see getting a driver's license as optional, perhaps doing it for other reasons like using it as an ID or for the prestige it gives. Would that mean that blind people could now get driver's licenses to use as ID's and for the prestige? No, because a driver's license still would give the person the right to drive, that wouldn't be changed by getting rid of laws against driving without a license. If the state did start giving blind people driver's licenses, but also had a law that blind people were not allowed to drive, then that would mean that driver's licenses no longer gave the right to drive.

That final scenario is what would happen if we banned the use of modified gametes but continued to allow same-sex marriage. The current situation is like the second to last, where blind people are allowed to drive.

The state has an interest in ensuring ethical conception. We do that limiting marriage to adult who choose each other and commit to each other and who could ethically have children together, based on very basic public information (ie, not based on private invasive discrimination).

Russell Blackford said...

You can't "give" someone a right that she already has. Unmarried (competent adult) people already have all the right they need to have sex and to have children: namely, they are legally at liberty to do so if they wish. In a society where a licence is not needed to be legally entitled to drive a car, people who are competent to do so have all the right they need: as far as the law is concerned, they are at liberty to do so. At the most, a licence might confer some sort of prestige to the owner.

John Howard said...

In a society where a licence is not needed to be legally entitled to drive a car, people who are competent to do so have all the right they need: as far as the law is concerned, they are at liberty to do so. At the most, a licence might confer some sort of prestige to the owner.

That's right, but that isn't the point that it would stop protecting the right to drive, that won't happen until someone with a license is prohibited form driving. If we allow people that aren't allowed to drive to have a license, then that means that the license doesn't protect anybody's right to drive. So if we allowed people to drive without a license, we should make blind people get a different kind of ID in order to preserve the protection of driving that a license gives.

That is where we are still with marriage - a marriage still gives a right to have sex and conceive, even though we let people do it without a marriage. No marriage has ever been publicly prohibited form conceiving. But if we were to prohibit the use of modified gametes but still allow same-sex marriage, then everyone's marriage would lose the protection that all marriages have always had. It would mean that people could no longer claim a right to conceive with their own genes.

You feel we are already there, you feel that we shouldn't have marriage at all, and you feel that people should be allowed to conceive however they want. But all the things you want aren't likely to all happen. What is likely is that people will lose the right to use their own gametes because the public will feel it is irresponsible.