Gay Marriage Debate Has a Long Way to Go

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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.