The Abolition of Marriage???

I don’t know what I have been thinking, but today I was faced with a startling realisation.

In discussion with a group of theologians and ethicists over lunch, we fell to talking about the question whether – should the marriage laws in Australia be changed to include the the possibility of “marriage” between persons of the same sex – the Church’s clergy ought to continue to act as legal marriage celebrants. 

My interlocutors referred me to the recent John Millbank essay on the (yes, once again) Religion and Ethics website of the ABC, “Gay marriage and the Future of Human Sexuality”. In this article, Millbank argues:

The deep reason for the reportedly rather inchoate and intemperate wrath of Scottish Cardinal Keith O’Brien in the face of the proposed alteration in marriage law is no doubt his sense that a supposed “extension” of marriage to gay people in fact removes the right to marry from heterosexual people.

This can seem like a perversely contorted claim, but its logic is quite straightforward: the intended change in the definition of marriage would mean that marriage as traditionally defined no longer exists. Thus heterosexual people would no longer have the right to enter into an institution understood to be only possible for heterosexuals, as doubly recognising both the unique social significance of male/female relationship and the importance of the conjugal act which leads naturally to the procreation of children who are then reared by their biological parents.

In effect, if marriage is now understood as a lifelong sexual contract between any two adult human persons with no specification of gender, then the allowance of gay marriage renders all marriages “gay marriages.” Given such a situation, were it not for the space afforded by canon law (namely, the possibility of church marriage) a resort to cohabitation – which has hitherto been understood as “common-law marriage” – would be the only logical path for clear-thinking Christians.

I have added the emphases in the above passage. The underlined sections spell out the logic:

1) If the definition of marriage is changed to “a lifelong sexual contract between any two adult human persons with no specification of gender”
2) this would mean that “marriage as traditionally defined no longer exists” (at least according to the law of the land)
3) leaving only two options for “clear-thinking Christians”, namely:
a) cohabitation
b) a “church marriage”

The irony is that, in order to be “inclusive” of a small minority, such a change to the law would be exclusive of a very large sector of our society. It isn’t just that Catholic clergy could no longer act as registered marriage celebrants according to the law (since the law would define “marriage” in a way completely incompatible with the Church’s teaching), but that Catholics (and other “clear-thinking Christians”) would be conscience-bound to avoid entering into the state of legal “matrimony” since “matrimony” as legally defined by the state would no longer be marriage as recognised by the Church.

It is commonly claimed by supporters of same-sex “marriage” that the Churches will not be “forced” to comply with the new laws. They won’t have to celebrate same-sex marriages, so what’s the problem? The problem is that marriage is not defined on a case-by-case basis, but as a single institution encompassing all who enter into that estate. If the laws governing marriage are redefined, all marriages are redefined.

This makes me doubly uncomfortable given the fact that the Church has always recognised the validity of “natural marriage”. That is, although we recognise that when two baptised Christians marry, their baptismal status raises what would otherwise be a “natural marriage” to the level of a “sacrament”, nevertheless, we recognise that in its native state, marriage is something that belongs to natural human society. In the event of the State defining marriage out of existence, we are left with Millbank’s idea of a “church marriage” as opposed to a “state marriage”. We should recognise that there has never, in Catholic doctrine, actually been such a thing. The origin of the Church’s “Rite of Marriage” is in the ancient practice of the clergy of the Church granting blessings to marriages conducted according to the accepted mores of the society. In Roman society, marriages were celebrated by the bride’s husband. In Christian households, the priest or bishop was invited to attend the marriage feast and give his blessing to the couple who had been married. Over time, instead of the priest going to the wedding feast, the couple went to the priest at the door of the church building for their blessing. Later still, the blessing shifted from the narthex of the church into the sanctuary of the itself. From there, the nuptial blessing developed into the full rite of marriage as we know it today.

We must never forget that the Church recognises the binding nature of natural marriage (even though, under very specific circumstances, such a marriage can be dissolved – eg. the Pauline or Petrine Privilege). And a sacramental marriage can exist outside a “church marriage” (eg. the marriage between two baptised non-Catholics or a marriage between a Catholic and a baptised non-Catholic given the proper dispensations). Distinguishing between a “church marriage” and a “state marriage” is really not a part of Catholic dogma, however enshrined it may be in practice in some jurisdictions.

But in the main, I can’t help but think that Millbank is correct. “Clear-thinking Christians” will realise that they enter into a relationship the very definition of which is antithetical to the Christian faith. The economic and legal hardship that this would bring for such conscientious objectors is hard to fully comprehend, but even harder to comprehend is the existence – for the first time in human history – of societies in which the timeless instituion of marriage no longer actually exists.

I am left with the extremely uncomfortable conclusion that, should marriage be so redefined, I might never have the honour of walking my daughters down the aisle.

About Schütz

I am Catholic, married to Cathy, father of Maddy & Mia. Since 2002, I have been the Executive Officer of the Ecumenical & Interfaith Commission of the Archdiocese of Melbourne. I was once a Lutheran pastor, but a "year of grace" and soul-searching led me into the Catholic Church. It was a bumpy ride, but with the support of my (still Lutheran) wife, I was finally confirmed on June 16, 2003.
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44 Responses to The Abolition of Marriage???

  1. An Liaig says:

    David,

    While what you say is true, it should also be recognised that government authorisation and registration of marriages is a relatively recent development. For much of its history the church has blessed marriages which were conducted according to social custom – the government had nothing to do with it. The current understanding of a civil wedding conducted by a government authorised celebrant is a post’enlightenment’ phenomena.

    • Schütz says:

      Yet I think, government or not, you would have to say that “the Law” had everything to do with marriage. Governments didn’t in any way define marriages in the past (that was a common sense given) but the courts of the land certainly adjudicated on marriages. Remember too that we can’t just speak in terms of the European heritage. Whatever position we take on the matter of legal marriages, we have to recognise a rather more universal history.

    • Peregrinus says:

      I think the church’s position is that marriage is a social reality. As a church, we didn’t create marriage; we just invested it with sacramental significance (or we believe that Christ has so invested it) but even where that is lacking – in a marriage between two pagans, for example – it’s still a social reality.

      The state should recognise marriage, therefore, because it is a social reality, and one that is relevant to the concerns of the state. Ignoring reality is generally not for the common good.

      Obviously, to recognise marriage when we see it, we have to have a definition of marriage in our heads, and so does the state. In that sense, the state gets to define marriage. But it’s a definition which should correspond to the reality, and which can be criticised to the extent that it departs from reality.

      All of this leads fairly naturally to the conclusion that, when two people ritually and publicly exchange marriage vows, which in their own view and in the view of their community creates and constitutes a marriage between them, the state should recognise the reality of what has happened.

      So the church would say that, if two Catholics marry in the Catholic church before a Catholic priest, the state should recognise the reality of what has happened, and should not impose arbitrary, unreasonable, excessive or unnecessary further hurdles or conditions. And, the church would agree, if two non-Catholics or non-Christians get married in a non-Catholic or non-Christian ceremony which still embodies the essentials of marriage and is viewed by themselves and their community as constituting a marriage, the state should recognise that too.

      And that, more or less, is how things are currently set up in Australia. (There is a layer of bureaucracy on top of that to secure state recognition, but it’s not an onerous one, and there are pragmatic reasons for, e.g., requiring religious ministers to register with the state as marriage celebrants. This does more to facilitate the reality of church weddings than to impede it.)

      Right. Does this change if the state also starts to accord recognition as marriages to unions which, from a Catholic perspective, are definitely not marriages?

      I don’t see that it does change, fundamentally. The fact is that true marriages are still true marriages, and the state should recognise them as marriages, and the common good is not served if the state refuses to do this. There’s an element of cutting off your nose to spite your face in saying “if you’re going to recognise [i]that[/i] union as a marriage, I don’t want you to recognise [i]my[/i] union as a marriage – even though it is, in fact, a marriage”. It comes across as just, well, petulant. At best, it imposes prodecures, burdens and possibly expenses on Catholics who wish to marry in the church, and have their marriage recognised by the state. At worst, it results in the creation of true marriages which go legally unrecognised, which is something the church generally tries very hard to avoid.

      The other point we have to consider is, if the church holds that it’s ministers should not participate in a legal concept of marriage which embraces same sex couples, will it also consider that lay Catholics should not so do? That Catholics who marry in church should not go through whatever procedures are necessary in order to secure state recognition of their marriage? This, I think, is what you are implying. If so, I see two objections. First, it is a huge burden to impose on Catholics who marry; presenting this issue in terms of what the clergy should do is to focus on about 1% of what is suggested. Secondly, it’s a complete reversal of 2,000 years of Catholic social thinking, which is that the state very definitely should recognise real marriages.

      I think where – if I may say so – your reasoning goes wrong, is in step 2, where you say that the legal recognition of same-sex marriages means that “marriage as traditionally defined no longer exists”. Marriage as traditionally defined certainly will exist, whenever a man and a woman marry. And it will exist according to the law of the land, whenever the law recognises that a man and a woman who have married are, in fact, married. I don’t see that that is negated by the fact that the state also recognised non-marital unions as marriages, and accords them parallel treatment. If there is anything wrong here, it’s in the treatment accorded to the non-marital unions, not the treatment accorded to the marriages.

      • Schütz says:

        Were any element of the meaning of “marriage” currently enshrined in the Australian Marriage Act to become “optional” that would fundamentally change the “meaning” of what “marriage” is. Thus the change in meaning would affect all marriages and not just those which chose options which fulfill all the current elements of the “meaning” of marriage.

        • Peregrinus says:

          I think I see your point, but I still think you are seeing marriage as a legal construct, so that marriage is what the state defines it to be, and this is what leads you to the conclusion that you reach.

          I disagree. Marriage is a social and anthropological reality which prexists both church and state. Both church and state have (not necessarily identical) ideals of marriage in mind, and they apply these to the actual facts to determine whether (they consider that) a marriage exists.

          Both church and state can get it wrong. For instance, a putative marriage which is in fact void may be found by a church tribunal to be valid, because the evidence which would show it to be void is not put before the tribunal. Or the reverse can happen.

          But we do proceed on the basis that the church’s ideal of marriage – the exclusive conjugal procreative union, for life, of one man and one woman – is correct; if the church errs in discerning a particular marriage, that’s not because the church has a false ideal of marriage, but because it has failed to discern the true facts of the situation.

          We make no such assumption in regard to the state’s ideal. The state, as you point out, does require that a marriage should aspire to permanence, but not that it should actually be permanent. The result is that, following a divorce, the state will remarry someone who already has a living spouse; thus, the state does not understand marriage to be exclusive, at least in the sense that church means by “exclusive”. Similarly, if a couple positively desire and intend never to have children, the state will marry them, whereas in the view of the church this is no marriage, because it is not ordered towards begetting children.

          Right. We’re now in a situation in which the state’s ideal of marriage is to depart still further from the church’s, in that the state will not require that the couple consist of a man and a woman.

          Your claim that “this change in meaning would affect all marriages” seems wrong to me, since the objective reality of marriage is unchanged. What has changed is the state’s understanding of, and attitude to, marriage.

          While we might lament this on a variety of grounds it’s not, as the other examples show, something fundamentally new. The stated does not require marriages to be ordered towards procreation, but marriages which [i]are[/i] so ordered are true marriages, and the church’s view has always been that the state ought to recognise them as such. I don’t see that the present situation is fundamentally different.

          And I don’t think I’m alone. There are currently ten countries in the world which legally recognise same-sex marriage in the fullest sense, including such traditionally Catholic countries as Spain, Portugal, Belgium and Agentina. And same sex marriages are also recognised and celebrated in some jurisdictions in Mexico and the United States. In none of these countries, so far as I know, has the Catholic church taken the view that, in consequence of the legal recognition of same-sex marriage, church marriages ought to avoid or decline civil legal recognition.

      • Shan says:

        Thankyou Pere. I agree with everything you’ve said here.

  2. Tony says:

    Might you temper the tortuous logic of dinner table theologians with some real evidence, David? Have these gloomy projections come to the surface in jurisdictions that have allowed gay marriage? Has the heterosexual marriage sky fallen in?

    Perhaps it might be wise to hold off telling your daughter the bad news just yet. :-)

    Needless to say, I do have a problem with your three point logical construction after the phrase ‘this would mean that …’.

    • Schütz says:

      “Has the heterosexual marriage sky fallen in?”

      This is not something which can be tested empirically, Tony. Of course, men and women will still get married in the good old fashioned way – perhaps in a way even more old fashioned than we currently have (see An Laiag’s comment above). My point is simply this: marriage as defined by the law would be a different institution than it currently is. Currently it is exclusive of same sex partners; the proposed change would make it inclusive of such partnerships – therefore legally you have a demonstrable change to what is currently exclusively “heterosexual marriage”.

      So what I am saying is that marriage as an exclusively heterosexual estate uniformly regulated and defined by the laws of the land would cease to exist. You can’t deny that.

      • Gareth says:

        I’m sure also the sky didn’t fall in at Auschwitz – it doesnt necessarily mean that a grave/unnecessary evil isnt present.

      • Tony says:

        OK David, for the sake of argument, let’s say ‘I can’t deny that’. What follows from ‘that’ though?

        If we, in some sense, don’t co-operate with the state (or whatever it is that people are suggesting) because it ‘changed the definition’ of marriage, why stop there? The state changed the definition (the ‘forever’ bit) some time ago and we still have a state component to our marriages. How would this be any different.

        PS: I’d like to evoke Godwin’s Law with regard to Gareth’s remark.

        • Schütz says:

          No, Tony, the Australian Marriage Act still includes, as part of the “meaning” of marriage, the words “for life”. Divorce is a reality – and in fact has existed as a reality in many societies for time immemorial – but the “meaning” of marriage itself has not changed. To be a valid marriage, the couple at the time of marriage have to have the intention of entering into the relationship “for life”. In all legal forms of marriage in Australia, a statement of intention must be made before the exchange of vows in which the couple express their free intention to enter into this union “for life”. See my new post on this.

          Incidentally, a parallel situation to the current one did exist, I understand, in the late eighties early nineties, in which the ACBC actually sought out expert advice at that point as to whether the Catholic Church should withdraw from celebrating legal marriages on the basis that the ready availability of divorce changed the meaning of “marriage”. I understand that at that time the possibility (and indeed the necessity) of such a withdrawal was rejected, because the meaning of marriage enshrined in the Marriage Act still conformed to the meaning of “true marriage”.

          • Gareth says:

            Comparing the modern-day homosexual campaign to the Nazi regime is not in any way an exaggeration or joke.

            As the Nazi’s proved, reapeat a LIE no-matter how wrong it is to the massess over and over and over again and (excluding the minority who are in God’s grace) will eventually result in 80 per cent of the mainstream population, including the so-called good accepting the propoganda presented as mainstream.

            Catholics should not kid themselves that the same tactics are being employed in or day and age and this also extends to the feminist movement.

            Catholics that coninually nag at other Catholics for legitimate reason in their wholesome fight against immoral filth and fail to acknowledge he points being made should take a good look at themselves and see the truth.

  3. Felix the Cassowary says:

    Should “right thinking Christians” co-operate with a state that has gay marriage?

    I didn’t pay much attention to an article in the Age the other day about courts struggling to adjudicate over defacto relationships. Did this couple have a relationship? Does one have a claim on the property of the other?

    It seems to me like we’re being an accelerated history lesson, achieved through repetition because we’ve made it our mantra not to learn from history. Back in the olden days, society and the church and the courts decided that in order to simplify this, people should be upfront about their intentions and their goals. How much longer before we do that again?

    I myself am partial to getting rid of state-recognised marriage at present, for public policy reasons. There’s such division that neither settlement will work for the other. Its times like this that Solomon’s wisdom was made for. The peolpe who advocate for marriage most strongly, of course, already have all the cultural accoutrements necessary to make it work even if there is no official state recognition.

    But yes, I have asked myself the question, if it turned out that gay marriage becomes the law of the land, and I was going to get married, would I get a state marriage? And I decided that I would, because state marriage is about government regulation of property and other legal things, not about love or union. Gay marriage is playing with fire, but the fact that it’s around doesn’t mean I (or my wife, or our children) wouldn’t need the protections the government regulation affords.

    • Schütz says:

      Yes, if we had to take a stand on this, and refuse to cooperate with a redefined “marriage” according to the state on the basis of conscience, we and our children would suffer these deprivations.

      And yet, it is worth wondering what would happen in the courts. You cite the article in the Age – the courts do adjudicate on “de facto” marriages when there is evidence of their existence. Let’s imagine a situation in which the Catholic Church refuses to cooperate with the state in terms of authorising her ministers to act as registered marriage celebrants. But the Church goes on conducting marriages, hearing vows made publically before witnesses according to a formula which describes a situation which objectively conforms to the estate of marriage. I wonder whether, despite not being married by a registered celebrant, being able to produce evidence of such a public exchange of vows would not carry at least some (if not a great deal of) weight when tested in court?

      • Peregrinus says:

        I think we need to distinguish between the clergy acting as [i]celebrants[/i], and the clergy acting as [i]registrars[/i].

        Acting as a celebrant is of the essence of what a Catholic priest does when he presides over the sacrament of matrimony. The questions facing the state are:

        (a) Do we recognise this a a legal marriage?

        (b) If we do, and given that we want legal marriages to be registered, how do we ensure that it gets registered?

        In Australia, currently, the state answers these questions as follows:

        (a) We recognise it, if the clergyman has been put on our list of authorised celebrants (which is up to the religious authorities).

        (b) We ensure that the marriage gets registered by imposing on the celebrant an obligation to complete and send in the necessary paperwork.

        Note that if the celebrant fails to complete and send in the paperwork, the couple are still married. The offence of failing to register a marriage has been committed but, legally, they are married.

        Right. What will happen if clergy take themselves off the list of authorised celebrants?

        If an unauthorised clergyman celebrates a marriage, a number of consequences follow.

        1. The marriage is (legally) void (unless one or both of the couple believed the clergyman to be authorised).

        2. The clergyman commits an offence.

        3. If one spouse knows that the clergyman is unauthorised but the other does not, the spouse who knows commits an offence.

        Now, if the church decides to deregister all its clergymen, I don’t think it will want to expose them, and quite possibly spouses as well, to criminal sanctions. So it will seek an amendment to the Marriages Act allowing unauthorised clergymen to celebrate not-legally-valid marriage rituals without committing an offence, provided they make it clear to both the spouses that the ritual has no civil legal effect. They will argue for this on the grounds of religious liberty.

        It seems to me that there are a range of answers the government could make to this.

        A. No. Other countries which separate the state and religious ceremonies do not allow religious ceremonies to be celebrated when there is not also a state ceremony. That’s how they handle this in France, etc. It is not for the public good that there be a significant category of socially/culturally recognised unions which are not legally recognised, and we are not about to introduce such a regime here.

        B. Relax. If being an authorised celebrant is a problem, we’ll just drop the register of authorised celebrants. From now on anyone who gets married before a clergyman of any denomination, in accordance with the rites of that denomination, is legally married. Voila! That’s how they handle this in the UK, Ireland, the US and other countries, and it seems to work OK. We’ll impose a registration obligation on anyone who acts as a marriage celebrant, and on the spouses as well for good measure.

        C. Bugger off. We’re not making any change to the law.

        D. Yes, sure, fine, here you go..

        Option C is not a likely outcome. The last thing the government wants is to be faced with a campaign of civil disobedience which involves (a) unauthorised clergy celebrating invalid marriages, and/or (b) authorised clergy celebrating valid marriages but refusing to send in the paperwork, with a consequent stream of prosecutions of priests. And Option D is also unlikely; off hand, I don’t know of any country whose laws facilitate the celebration of socially and culturally significant marriage rituals which are intended to have, and actually have, no legal significance, and the public policy arguments against this are obvious.

        (Would option D, if allowed, have the result that the “invalid” marriage ceremonies would actually result in the creation of a legally-recognised de facto marriage? Not really, I think; de facto marriages are constituted by living together and having sex; if a couple are doing this, then they are de factos whether or not they have had a ceremony of some kind; if they’re not, then they aren’t. The conditions for determining whether a de facto marriage exists are not (in Australia) determined by the courts; they are set by legislation.

        In any event, de facto status resembles marriage in a number of respects, but it doesn’t in some quite central respects. Notably; someone who is in a de facto marriage is quite free to marry someone else, whereas someone who is in an actual marriage isn’t.)

        It seems to me that the best outcome the church could hope for would be to be offered the choice of A or B. Neitherr of those really leads to the situation that David suggests, which is to facilitate the celebration by couples of religious ceremonies which in their own eyes, and in the eyes of their community and society, create a valid and true marriage, but which in the eyes of the state do not. I can’t think of any reason why the state would [i]want[/i] to encourage or facilitate this. And, if the church did want it, that would be a remarkable reversal.

        • Schütz says:

          You omit from your requirements of a valid marriage the requirement of legal form. If the form of the rite does not conform to the meaning of marriage in the Marriage Act, the marriage is also null and void. Just making the point.

          • Peregrinus says:

            Actually, I think not so. S.45(1) of the Marriages Act 1961 says that “where a marriage is solemnised by or in the presence of an authorised celebrant, being a minister of religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister.”

            In other words, there is no requirement of form, other than that the form used be good enough for the church concerned. This contrasts with the position for non-ministerial celebrants, who are required by s. 46 to include a statement as to the nature of the marriage relationship in Australian law.

  4. matthias says:

    If the church were to stop having state sanctioned marriages and instead have a Nuptial blessing ,then Christian couples could choose to have Registry office wedding and then the Church blessings. Something not dissimilar to what already occurs in parts of europe

    • Peregrinus says:

      Hi matthias

      Not to be nitpicky, but do you actually mean “nuptial blessing” here? A nuptial blessing does not create a valid sacramental marriage. Are you not looking for a church ritual which creates a marriage which is sacramentally valid, but which is void as a matter of civil law?

  5. Kate says:

    No longer acting as official registrars of marriage is perfectly workable and already occurs in countries like France; indeed Fr Finigan recently argued on his blog that it would be essential to do this in the UK context to protect against claims of discrimination when priests (hopefully) refused to marry same sex couples:

    http://the-hermeneutic-of-continuity.blogspot.com.au/2012/03/european-court-undermines-uk-government.html

    The comments there explore the implications of doing this and are worth reading.

    The question of whether catholics would have a duty to resist the marriage law as unjust is an interesting one though and not I think easy to answer. In the US for example the bishops are urging resistance to Obama’s health care insurance requirements; yet in Australia there is no call to resist Medicare or the Pharmaceutical Benefit Scheme on the grounds that they fund abortions, sterilizations and contraceptives…
    Indeed, a number of Catholic ministers (including current opposition leader Abbott) have been responsible for administering these programs!

    So perhaps the principle is that one should resist a law in so far is it unjust – for example requiring a catholic to directly provide contraceptive coverage is unjust, but a scheme that exempts catholics on religious grounds would be something to work to change and modify in its administratin as much as possible, but not necessarily refuse outright to co-operate with?

    Presumably the vast majority of marriages would continue to be between heterosexuals, given that homosexuals are only a few percentage points of the population. Indeed, the ACT’s civil partnerships legislation has in two years seen 146 registrations so far – but around half of those were actually heterosexual couples! And this compares with around 3000 marriages in the same period.

    So I think the question of whether we had a duty to refuse to use the states marriage laws is certainly open to debate….and a very interesting question to raise.

  6. Bear says:

    I think that I am missing significant parts of the logic here: I feel as though I am in an Ionesco play.

    Why will Catholic priests have to stop being civil marriage celebrants? This part of the argument is missing. It is not as though the long term (sort of) monogamy the state accords as marriage is particularly in line with the Christian understanding of marriage.

    And if they are marriage celebrants, how could they be compelled to attend at same sex unions? As I understand it, Catholic priests can only conduct marriages according to the Rites of the Catholic Church.

    • Schütz says:

      Hi, Bear. Currently the “meaning” of marriage as enshrined in the Marriage Act of Australia conforms completely to the Catholic doctrine of what “true marriage” is.

      • Bear says:

        You have not answered the question. Under the proposed changes, why will Catholic priests stop acting as marriage celebrants? Will the definition exclude Catholic marriage?

        • Kate says:

          There are two reasons bear.

          1. Depending on which version of the legislation gets up, if they remain official marriage celebrants they would be required to marry same sex couples or face prosecution; and
          2. Rather arguably because catholics might be obliged to resist the law as a whole because it is contrary to the natural law and common good on the principle that a bad law is no law at all.

          • Peregrinus says:

            There are two Bills before Parliament at the moment to introduce “marriage equality”. Both, so far as I can see, explicitly preserve and reinforce the existing provision which says that ministers of religion do [i]not[/i] have to celebrate marriages that they don’t want to celebrate.

        • Schütz says:

          Well, I can’t say what the Catholic Bishops of Australia would decide regarding priests acting as marriage celebrants should the proposed changes to the law be accepted. I am fairly confindent, however, that by changing the current defintion of marriage to include alternative “options” (eg. that the “marriage” could consist of partners of the same sex) would fundamentally exclude (not just Catholic but all true) marriage as we currently know it from the law.

          • Peregrinus says:

            No, no. That’s a bit like saying that if I extend the definition of “cat” to include all mammals, then I’m excluding cats. Not so, since cats are mammals. I may be wrong in counting dogs as cats, but I will still be counting cats as cats, and correctly so.

            • Bear says:

              Thank you Pere.

              I think that it is paranoid to suggest that the legislation will be changed to compel celebrants to celebrate in arbitrary ways that would violate their conscience. After all, the licensing of clergy to marry (according to the state) is a concession to easy the burden of the Registrar – the clergy are performing a function on behalf of the Registrar.

              Marriage is not a common service like the trains, and legally it is the Registrar who is responsible.

              Consider an inner urban, university educated (BA (Hons III)), chardonnay drinking, Greens voter who is also a marriage celebrant, and a vegan for ethical reasons. Will he/she be obliged to perform a Goth wedding in which two pigeons are sacrificed to Gaia or Odin?

              It is in nobody’s interest (except for the most extreme secularists) to introduce an arbitrary obligation on marriage celebrants.

  7. “The economic and legal hardship that this would bring for such conscientious objectors is hard to fully comprehend”

    What hardship? As far as I know, de facto married couples in Australia face no economic hardship relative to de ivre married ones, and the only legal hardship might be the de facto spouses’ lack of next-of-kin status and what this implies for things like access to one’s hospitalised de facto spouse and consent to medical procedures. Are there other hardships of which I’m not aware?

    Reginaldvs Cantvar

    • Peregrinus says:

      There are a variety of differences, and I’m not sure if anybody has tabulated them all. They vary to some extent from state to state, since regulating non-marital relationships is a state matter.

      De factos are not as well protected as regards a partner’s superannuation entitlements, particularly (though not exclusively) on relationship breakdown. De facto relationships are non-exclusive, which obviously has implications for the economic security of the financially dependent partner. De factos may lose all protection if one or both of them leaves Australia, or if they have property or assets abroad. And no doubt there are other distinctions.

      Whether a couple will be affected by these obviously depends on their circumstances and the course of their relationship, but all couples are [i]potentially[/i] affected by them.

      • Thanks for that answer, Peregrinus. The only part of it to which I have reason to object is the proposition that de facto married couples are at an economic disadvantage relative to de ivre married ones with respect to the economic security implications of de facto marriage’s non-exclusivity; I disagree because, under Australian law–and I don’t have time today to get the reference for this, but I might tomorrow–both a de facto spouse and a de ivre spouse can have other de facto (but, of course, not de ivre) spouses.

        • Peregrinus says:

          A de facto spouse can contract a de jure marriage (with a different person, I mean), whereas a de jure spouse cannot. I think that’s a very material difference, in regard to the economic security of the financially dependent de facto spouse. To deal in stereotypes for a moment, a married man may of course take a mistress, and that’s a serious matter, but it doesn’t have the same practical economic implications for his wife as a single man with a dependent mistress taking a wife has for the mistress.

          • Schütz says:

            Would that make it “de facto” bigamy?

          • “a de jure spouse cannot[, according to Australian law, “contract [another] de jure marriage]”

            Yes, that true; in my comment’s parenthesis I should have written at the end “for an already de-ivre spouse”.

            What I don’t know is whether it’s true that, with respect to the economic security implications of de facto marriage’s non-exclusivity, a married man taking a mistress (to follow your example) “doesn’t have the same practical economic implications for his wife as a single man with a dependent mistress taking a wife has for the mistress.” Is that indeed true?

            • Peregrinus says:

              This is not really my area. But . . .

              Obviously if a man who is in one conjugal relationship with someone who is financially dependent on him takes a second partner, this has adverse implications for the first partner, and this remains true regardless of which (if either) of the relationships is a de jure marriage. This is always so regardless of the legalities of the situation, for two reasons. First, this development threatens breakdown of the relationship, and relationship breakdown is always financially stressful, and threatening to the interests of both parties but particularly the economically dependent party. Secondly, even if relationship breakdown does not ensue, two relationships cost more than one and the resources available to meet the needs of the first partner must be less than they were.

              But, having said that, if you’re the dependent first partner you would very much rather that you were the de jure spouse and the second partner was not. The onus is then on the second partner to prove the existence of the de facto relationship before she can claim assets. While the prior existence of the marriage does not exclude the creation of a de facto relationship with someone else, the factors that the court looks at include things like the nature and extent of common residence, degree of financial dependence or interdependence, degree of mutual commitment to a shared life, the reputation and public aspects of the relationship, etc, etc, and the existence of the prior marriage will usually tend to diminish the extent to which these things are manifested in connection with the second relationship.

              Secondly, the fact is that your husband has made formal, public, explicit and exclusive commitments to you which he has not made to his de facto partner. Even if those commitments mean nothing to him, they do help to set the context in which – if it comes to that – the resources of the parties will be allocated on separation/divorce. Although legally the court has an almost boundless discretion, the way in which they tend to exercise that discretion is coloured by the circumstances and actions of the parties. And, in fact, one of the considerations that the court must take into account when ordering maintenance or a property transfer are “the responsiblities of either party to support any other person”.

            • Thanks for that reply (April 4, 2012 at 6:23 pm), Peregrinus.

    • Peregrinus says:

      Plus, it makes little sense for David to argue (as I think he does) that we have a moral obligation to avoid seeking state de jure recognistion for church marriages because the state concept of de jure marriage departs fundamentally from the true notion of marriage, but that we can take comfort in state de facto recognition. The state concept of de facto marriage departs even more fundamentally from the truth; a de facto marriage is neither voluntary, nor exclusive, nor for life, nor confined to man-woman couples.

        • Sorry, I meant for that hyperlinked text to end immediately before the comma at the end of the body of that comment’s third line.

        • Peregrinus says:

          This varies from state to state, I think, since marriage is a Commonwealth matter but other relationships are not. De facto status is a mixed Commonwealth/state competence. E.g. whether and when de facto spouses can access one another’s superannuation is a Commonwealth matter, since the Commonwealth regulates superannuation. But whether and on what conditions they can adopt or foster is a state matter.

          More and more states are more and more assimilating the position of de facto partners to the position of de jure spouses, to the extent that they can, and the Commonwealth does too, in areas like superannuation and immigration. And there is equally a trend to assimilate the position of same-sex and opposite-sex de factos. But there is no single “de facto” status as there is an integral status of marriage. De facto status is a complex of rights and obligations (and social attitudes and conventions) which varies from place to place within Australia and, even in the same place, may vary as between same-sex and opposite-sex couples. There is a general trend towards assimilation and uniformity, but it’s a trend, not by any means an acheived outcome.

      • Schütz says:

        Actually, I don’t think I was arguing that!

        • Peregrinus says:

          Perhaps I’m misunderstanding your suggestion here, David, in which case I apologise.

          In the original post you suggest that we might be “conscience bound to avoid entering into the state of legal matrimony” if the legal concept is expanded to embrace same-sex couples. And you concede that this would result in economic and legal hardship for Catholic couples. Later, in your comment of 30 March in reply to Felix you refer again to these deprivations but imply that they might be ameliorated as church weddings could possibly be viewed by the state as creating “de facto” marriages.

          There does seem to me to be an inconsistency here. If we are conscience-bound to avoid entering the civil state of de jure marriage because it embraces same-sex couples, are we not also conscience-bound to avoid entering the civil state of de facto marriage, which not only embraces same-sex couples, but embraces couples who have not chosen that status, couples whose relationship is not exclusive or intended to be so, and couples whose relationship is not permanent or intended to be so?

  8. Steve Hayes says:

    I believe the answer is simple: Notes from underground: The State should get out of the marriage business.

    But if the state wants to make marriage its business, then let the church get out of the states business, and let Christians make their own arrangements.

    But the church has never been against gay marriage. Marriage has been determined by sex, not sexual orientation.

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