It’s all about commitment
Malcolm Turnbull July 07, 2012
For many years, I gave little thought to the question of whether the law should describe same-sex couples’ unions as a marriage. I took the view that the marriage issue would be a major obstacle to achieving the more substantive reforms in terms of equality of treatment – and I think I was right in that respect. The HREOC [now Australian Human Rights Commission] recommendations that were legislated in 2008 would not have been passed had marriage been part of the package.
In the last year of the Howard government, there was some controversy about giving same-sex couples equal rights to Commonwealth and Defence superannuation. I argued strongly for this and shortly before the election John Howard, to his great credit, announced we would do it. I might add the stoutest opponent was the Department of Finance. They had no moral agenda: it cost a lot of money!
However, about that time President George Bush was visiting Australia. In the course of a discussion at Kirribilli House, the President asked: ”What are the big moral issues in politics here?” We replied that abortion wasn’t a hot political issue in Australia. I noted, however, that there was a growing debate about whether same-sex couples should get equal treatment in terms of tax, Medicare, pensions and so on. Bush’s reaction stunned the Australian politicians. ”Really?” he said. ”Really? That’s not a moral issue, that’s just financial fairness. The only moral issue is marriage.”
· However, over time as I have reflected on this question of ”marriage equality”, I have found the arguments against gay marriage less and less convincing.
Families are the foundation of our society and I am firmly of the view that that we would be a stronger society if more people were married – and by that I mean formally, legally married – and fewer were divorced.
If consulted by friends about marital dramas, I always encourage the singles to marry, the married to stick together, the neglectful and wayward to renew their loving commitment and the wronged to forgive. And I have to say that I am utterly unpersuaded by the proposition that my marriage to Lucy, or indeed any marriage, is undermined by two gay men or two lesbians setting up house down the road – whether it is called a marriage or not.
Regrettably, this aspect of the debate is dripping with the worst sort of hypocrisy, and the deepest pools are all too often found among the most sanctimonious.
Let us be honest with each other. The threat to marriage is not the gays. It is a lack of loving commitment – whether it is found in the form of neglect, indifference, cruelty or adultery, to name just a few manifestations of the loveless desert in which too many marriages come to grief.
If the conduct of another couple is likely to undermine the marriage of another, it may be because they set a bad example. If one husband sees another treating his wife neglectfully, he may, possibly, be inclined to think he can do the same. If one wife belittles her husband, another may feel she can do the same to hers. That, I concede, is possible.
But do the bishops seriously imagine that legalising gay marriage will result in thousands of parties to heterosexual marriages suddenly deciding to get divorced so they can marry a person of the same sex?
If the threat to marriage today is lack of commitment, then surely other couples making and maintaining that commitment sets a good rather than a bad example.
Are not the gays who seek the right to marry, to formalise their commitment to each other, holding up a mirror to the heterosexuals who are marrying less frequently and divorcing more often?
There is a strong public interest in people living together and supporting and helping each other.
If, for just a moment, I can pretend to be an economist and know the price of everything and the value of nothing, there will plainly be less demand for social services, medical expenses, hospital care if people, especially older people, like Michael and Johan [the former Justice Kirby and his partner, Johan van Vloten], live together as opposed to being in lonely isolation consoled only by their respective cats.
Study after study has demonstrated that people are better off financially, healthier, happier if they are married, and indeed, I repeat, if they are formally married as opposed to simply living together.
As for the political or ideological dimension to this, consider how the British Prime Minister, David Cameron, framed the issue last year: ”And to anyone who has reservations, I say: Yes, it’s about equality, but it’s also about something else: commitment. Conservatives believe in the ties that bind us; society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.”
Those who condemn gay marriage, yet are silent or indifferent to the breakdown of marriage and divorce, are, in my view, missing the real issue.
Another argument against gay marriage is the taxonomic one. It says that marriage means the union of a man and woman. A union between a man and a man or a woman and woman can be worthy of equal respect but it should be called something else. Just as you cannot change the character of a table by calling it a chair, so the character of the two types of union should be reflected in different names.
Against that are essentially two arguments.
The first, which is put by the marriage equality lobby, says that describing same-sex couples’ unions as anything other than marriage is condemning them to a second-class status.
The second argument is that there is something disingenuous, if not confused, in giving same-sex couples all of the same rights as married people and then saying you can’t call the relationship a marriage.
Underlying all of this, even in our increasingly secular society, is the sense that the union of a man and a woman, not least because of their ability together to create new life, is a deep and sacred mystery which should be respected by preserving only for unions of men and women the word marriage.
In my judgment this is the most widely stated argument against gay marriage. But should we be persuaded by it?
The percentage of marriages in Australia conducted by ministers of religion has dropped from 58 per cent in 1990 to 31 per cent in 2010 . Most couples are getting married today without the benefit of clergy.
About 30 per cent of marriages conducted in 2010 included at least one party who has been married before, which means of course that most of those marriages would likely be regarded as adulterous and invalid by several of our leading churches.
So there is a clear distinction already between what constitutes a valid marriage in the eyes of the state and in the eyes of the church.
Of course, this distinction is more clear-cut in countries where a marriage is recorded by a civil official at a registry office or town hall and subsequently by a religious ceremony where one is conducted. I don’t doubt that explains why the legalisation of gay marriage has been less controversial there. In Australia, however, ministers of religion are authorised to perform both the civil function, on behalf of the Commonwealth, and the religious one on behalf of their denomination.
My point here is that the question as to whether same-sex couples’ unions should be termed a marriage by the state is not one which calls for a religious answer. No denomination can be compelled to recognise any particular form of marriage – it is entirely up to them.
Let me now turn to the politics of the matter.
The Labor Party has resolved that there will be a conscience vote on this issue, although the party’s policy is to support gay marriage.
The Liberal Party has resolved not to have a conscience vote on this issue, and the party’s policy is to oppose gay marriage.
If we had a free vote on the matter and, subject always to the wording of the bill, I would vote to recognise same-sex couples’ unions as a marriage. I find the arguments against it unpersuasive.
A society that promotes freedom and equality under the law should accord gay men and women this right.
Many argue that the Liberals’ lack of a conscience vote means the gay marriage bills will not pass. I don’t think they have the numbers to pass, but I am far from convinced that in the present Parliament they would have the numbers even if a conscience vote were permitted.
It is important to remember that unlike the Labor Party, (the Coalition’s) members do not get expelled if they cross the floor.
So, in that sense, every vote is a conscience vote. However, in this case, because the leadership are not permitting a free vote, shadow cabinet ministers are bound to vote in accordance with the collective decision. If they want to cross the floor, they would be obliged to resign from the shadow ministry, and I do not propose to do that.
So what is to be done?
In my judgment, while the numbers are not there for gay marriage in this Parliament, they are certainly there for civil unions.
We should not miss the opportunity to legislate for civil unions for same sex-couples in this Parliament.
I recognise that will be seen by many as not good enough. But it is better than nothing and, as I said in the House last week on another issue, it is a great mistake to allow your conception of the perfect to be the enemy of the good.
It is said by the ”marriage or nothing” advocates that if the Parliament were to legislate for civil unions, there would never be a move to marriage.
Well, ”never” is a word that is rarely applicable to anything in politics, but beyond that, experience suggests this argument is simply not right.
On the contrary, it appears that most jurisdictions that have legislated for gay marriage have first provided for civil unions, including the Netherlands, Spain, Sweden, Norway and Canada. The United Kingdom and France, which recognise civil unions, are both proposing to legislate for marriage .
This is an occasion in honour of my old friend, and occasional monarchist opponent, Michael Kirby, who may, indeed, one day be able to marry his prince – even if it is by the time Australia is a republic.
This is an edited extract from the Michael Kirby Lecture, delivered last night by Malcolm Turnbull at Southern Cross University.