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Gay Marriage Debate Has a Long Way to Go

9 December 2011 at 11:22 am
Staff Reporter
Fr Frank Brennan asks how should a conscientious Catholic member of parliament vote on the issue of gay marriage?

Staff Reporter | 9 December 2011 at 11:22 am


Gay Marriage Debate Has a Long Way to Go
9 December 2011 at 11:22 am
Flickr image: Some rights reserved by San Diego Shooter 

On the weekend the ALP party conference voted to amend the party platform on same sex marriage. The platform now states: 'Labor will amend the Marriage Act to ensure equal access to marriage under statute for all adult couples irrespective of sex who have a mutual commitment to a shared life.'

Churches and religious organisations will retain the freedom to perform marriage ceremonies only for a man and a woman eligible for marriage under the rules of the church or organisation.

The conference voted by 208 to 184 to allow Labor MPs a conscience vote on the issue. Tony Abbott continues to insist that Liberal MPs will not be granted a conscience vote. This will change. If it doesn't, several Liberals, including Malcolm Turnbull, will cross the floor. It could even become a leadership issue in the party.

Within the life of the present parliament, our elected leaders will probably be voting on the issue, and in all likelihood the members of all major parties will have a conscience vote.

How should the conscientious Catholic member of parliament vote? If I were a member of parliament, I would support a law for the recognition of civil unions similar to the present United Kingdom law, and I would vote against any bill extending the definition of marriage to include the union of two men or two women.

I would do so because I think the State should not discriminate against couples who have a mutual commitment to a shared life (whatever their sexual orientation), while affirming that the bearing and nurturing of the children of the union is a constitutive good of marriage (even though not all marriages produce children).

Sadly in Australia, there is not much interest in a national approach for the recognition of civil unions. It is a winner takes all approach: either same sex marriage or no national symbolic, legal recognition of same sex unions. Just as states and territories can legislate with their own variations for de facto partnerships, they could also legislate for civil unions — as Queensland has just done.

Speaking from Rome on the weekend, Cardinal George Pell, Archbishop of Sydney, said: 'Marriage is about man, woman and children, as it has always been. Any Australia-wide political party which repudiates this does not want to govern, and rejects both tradition and the working class.'

We need to distinguish between moral teaching and pastoral advice offered our co-religionists,  and reasoned advocacy for laws and public policy applicable to all persons.

On the issue of civil recognition of same-sex unions it is not appropriate in the public square simply to agitate about the Catholic view of the sacramentality of marriage. Even the Catechism of the Catholic Church states: 'The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination … constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided.'

How then could the law best express this respect, compassion, sensitivity, and non-discrimination for all persons including same sex attracted persons who commit themselves to loving, faithful relationships?

There is room even in the community of faith for a diversity of views. I have been greatly assisted by the line of Archbishop Vincent Nichols, elected president of the Catholic Bishops Conference of England and Wales by unanimous acclamation in 2009, who last month after their Bishops Conference said, 'We were very nuanced. We did not oppose gay civil partnerships. We recognised that in English law there might be a case for those.'

Archbishop Nichols, Archbishop of Westminster, was also in Rome last weekend, and speaking about civil unions and same sex marriage. He said: 'Clearly, respect must be shown to those who in the situation in England use a civil partnership to bring stability to a relationship. Equality is very important and there should be no unjust discrimination. (However) commitment plus equality do not equal marriage.'

I concede that some Catholic commentators might argue for limits on non-discrimination and compassion on the basis that the very recognition of a same sex relationship is contrary to the natural law. For example, the Catechism states: 'The natural law, the Creator's very good work, provides the solid foundation on which man can build the structure of moral rules to guide his choices.

'It also provides the indispensable moral foundation for building the human community. Finally, it provides the necessary basis for the civil law with which it is connected, whether by a reflection that draws conclusions from its principles, or by additions of a positive and juridical nature.'

But these commentators would then need to establish that the extension of non-discrimination and compassion to same sex couples would undermine the indispensable moral foundation for building the human community.

Even if the Australian Parliament does legislate to expand the definition of marriage beyond its traditional meaning in the Marriage Act, there will undoubtedly be a constitutional challenge in the High Court given that the Parliament does not have the power to expand its legislative competence beyond the wording of the Constitution. Under the Constitution, the Parliament has power 'to make laws with respect to marriage'.

In 1991, Justice Dawson on the High Court observed that the Commonwealth power to legislate with respect to marriage 'is predicated upon the existence of marriage as a recognisable (although not immutable) institution'. He then said, 'Just how far any attempt to define or redefine, in an abstract way, the rights and obligations of the parties to a marriage may involve a departure from that recognisable institution, and hence travel outside constitutional power, is a question of no small dimension.'

So this debate has a long way to go. It would be a pity if those of us trying to contribute the strength of the Catholic tradition to the debate were simply characterised as homophobic naysayers. And it would be helpful if some of the nuances of the experienced UK bishops could get some airplay here from our own bishops who also wrestle with the pastoral and moral dimensions of this question. 

This article was first published in Eureka Street.

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


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  • Anonymous says:

    I understand Fr Brennan’s position.

    To say though “the State should not discriminate against couples who have a mutual commitment to a shared life (whatever their sexual orientation), while affirming that the bearing and nurturing of the children of the union is a constitutive good of marriage (even though not all marriages produce children)” is a two-way bet.

    I am married and we don’t (and won’t) have children. Two lesbian couples who are friends of ours each have happy, well adjusted children. Doesn’t that mean that their bearing and nurturing of children should allow them to marry – more so than my husband and I?

    Forget the religion, reject George Pell (whose bigotry has let so many Australians down over so long) and get on with not using gender as the basis of any more discrimination in marriage. We really have to get over ourselves.

  • Anonymous says:

    Why is Pro Bono News wading in to this debate and, if it choses to do so, why ask only a Catholic MP? Lets hear from Rainbow MPs too.

  • Anonymous says:

    marriage is a secular right not a religious priviledge. The Church is irrelevant to this debate. It is a legal and human rights issue. If churches decide they do not wish to allow people of the same sex to marry in their church so be it. It is another thing altogether that the State deigns same sex marriage as illegal. Please stop muddying the issue with religion – it has nothing to do with human rights. Religion in some countries allows female castration yet it is illegal here – just because a religion says it’s OK or not OK does not mean it is legal or even moral.

  • Anonymous says:

    Why would you be using an article about how “conscientious Catholics” should approach gay marriage?

  • Anonymous says:

    Why is Pro Bono publishing and advertising articles that are largely irrelevant to the NFP sector? To me this indicates that a significant bias exists in the editorial of Pro Bono and I am disinclined to trust the new they deliver.

    Nevermind that the article above is inaccurate in describing “Marriage is about man, woman and children, as it has always been.”
    This is not the case, and a multitude of marriage traditions have been documented many times over throughout history. A simple google search for “history of marriage” will reveal a number of scholarly publications refuting this definition.

  • Anonymous says:

    1. Churches seem to have a different definition of marriage from the general public’s view of it and this is not recognised or acknowledged by church spokespersons.

    2. Why is Pro Bono involved with this issue?

    3. Conscience voting is inconsistent with MP’s role of representing the people in their electorates.

  • russellpollard says:

    The whole tenor of the Frank Brennan article on gay marriage is demeaning and patronising. How can anyone [children, young people generally, young gay and lesbian people, older people, parents, any one of us] see positive role models of gay married couples if we deny them the opportunity to exist on an equal footing and actually get married? What a crock of contentious humbug the anti gay people protagonists continue to serve up.


    It was only a couple of years ago that the Federal Government instructed gay couples to register their relationships for tax and other purposes. I don't know of any who did. Most of us over 45 remember all too well that it was less than three decades ago that gays were routinely being harrassed, bashed, arrested, charged, imprisoned, bashed again and demonized by the same society that now expects us to trust it . . . from now on . . . and to not come knocking on our doors late one night and round us all up after Cardinal Pell's close mate Tony Abbot gets in . . . much as gays and lesbians in civil unions in Queensland are about to be stripped of their civil union rights by the son of the incredibly divisive Senator Newman who, in true Barbara Bush style, stood proudly behind her offspring Campbell as he took over the reigns of Queensland.


    And now there is the furphy that gay marriage will start people campaigning for polygamous marriages, the only intelligent response to which must surely be . . . "And what is your point?"


    I find myself agreeing with most of the respondents whose comments you have published but I found two things curious. One was the questioning of even talking about these matters . . . and the other was the anonymous statement that . . . "Conscience voting is inconsistent with MP's role of representing the people in their electorates" . . . which I thought was almost blindingly unintelligent in that it assumes that we should only ever have party members representing us and that we should not have expectations of our representatives beyond the party platforms that most of us do not know in any detail. Indeed even where we vote for a party many of us also vote for the person who is representing the party.


    How excellent it would be if we could vote for independents in broad alliances, people who have sold themselves to a majority of voters in each electorate, who don't have the party to fall back on as an excuse. The Liberal party used to be, by intention and design, the party of the conscience vote. My how things have changed in that unhappy camp.


    One of the best things that the current federal parliament is doing for all of us is demonstrating how important and intelligent the role of the independent can be. All our members are elected and all of them need to be heard. Tony Windsor's wisdom was available to us for years but was lost to us when he was a party politician. The people of New England now have a real leader with the voice a conscience brings him, representing them.


    Anyone in the not for profit sector must know that there are plenty of Australians who are articulate and able to think and exercise their consciences without having to fall back on party poll chasers to direct them.


    I don't need my Parliamentarian to agree with me on all things but I do expect him or her to actually think and exercise both their mind and their conscience and to be able to account to me in my electorate for what they vote as they do.


    Australia desperately needs new social thinking, new post-WSM [Wall Street Meltdown] economic thinking, new thinking about having houses for everyone to live in, for having aged care for all Australians well into the future, for the rights of children to a top education to not be seen as a right for parents but as a right for every child in the country . . . regardless of the parental lottery . . . and we need to own our resources and distribute the wealth they generate IN Australia and not into off shore bank accounts. So much need for conscience and intelligent open public debate rather than spin and polled party policy and a media dominated by know-alls who like the sound of their own seldom interesting voices way too much, and if the TWO BIG party system can't deliver, and it can't, then we need more smaller parties like the Greens, and the Democrats, a voting system that gives the Greens at least as many seats as the Country/National Party which polls less of the national vote than the Greens manage, and a whole lot more independents. We also need an independent national Daily newspaper with journalism that is intelligent and respectful of everyone and which does not editorialize at every turn because we need facts rather than journalistic hype and opinion and the right to draw our own conclusions.


    I actually do live in the real world but the thing that keeps my sense of hope alive, is the thought that the vote for women was once seen as absurd and destructive of family values, and then it was working women, and then it was equal pay for women [and now it is paid family leave] and at the end of the day all that moralistic posturing eventually bit the dust. Now it's gays who are getting a converted hiding from the likes of Frank Brennan. the Catholic bishops and the Christian evangelicals.


    One day we will stop handing billions of dollars to drug cartels by artificially keeping their prices through the roof with prohibition, and we will stop killing our kids with drugs by making them embrace a culture of criminality and unreliable supply should they ever take them.  One day we will have a health system that is a right for everyone to be able to fully access, and one day we will understand that these kinds of discussions are relevant in the not for profit sector because it is the people we traditionally work with who bear the brunt of the low-conscience poll driven politics we currently all endure in this wonderful country . . . a country that will survive its two party rut and become just so much better when it has.


    Russell Pollard


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