Keep nuptials happy, not gay

The Australian Family, March 2004

LAST Saturday I ventured the prediction that same-sex marriage would emerge as an election year sleeper, with gay couples recently married in Canada demanding Australian courts recognise their marital status. On Sunday, at Melbourne's Midsumma Festival, Jason McCheyne and Adrian Tuazon confirmed their intention to go to court.

McCheyne was a celebrant at a same-sex commitment ceremony in Alexandra Gardens, involving about 300 couples and said to be the world's largest event of its kind. We'll never know because (strange to relate) similar ceremonies were taking place in Philadelphia and across the US to coincide with Valentine's Day. These political stunts were eerily reminiscent of the Moonies' mass weddings but far tackier.

Meanwhile, the new mayor of San Francisco, Gavin Newsom, was flouting Californian law and ordering municipal authorities to issue marriage licences to hundreds of expectant same-sex couples. The licences had been rapidly redesigned to replace "bride and groom" with "first and second applicant". He also kept city hall open throughout a long weekend so more than 1000 couples could plight their troth in a civil ceremony.

Newsom's explanation for his mega-stunt was that it was a response to President George W. Bush canvassing a federal constitutional ban on same-sex marriage. "We have reignited a fundamental debate that's about discrimination ... against same-gender couples ... I'm not interested as a mayor in moving forward with a separate but unequal process for people to engage in marriage."

Newsom's carefully calculated delinquency may have ingratiated him with his constituency and fanned the embers of similar shenanigans in Massachusetts earlier this month. But it's most unlikely to survive protracted judicial review. Apart from anything else, four years ago Californians voted by a substantial majority for a measure defining marriage exclusively in terms of opposite-sex partners. Newsom's order will be overruled and the irregular marriage certificates revoked. What's more, a federal constitutional ban which will settle the matter now seems inevitable.

If the legal outcome is that cut and dried, why are so many Americans going through the motions of marriage or, like the Midsumma couples, engaging in mickey mouse commitment ceremonies?

Partly it's a matter of wanting fringe benefits such as superannuation, designed to support conventional families with children. Beyond that is a political assertion of moral entitlement to marry by people who can't comprehend their ineligibility or want to subvert the institution even though they are enthralled by its damaged glamour. It's the obverse of Groucho Marx not wanting to join any club that would have him -- insisting on the right to join a club that doesn't want you with a view to terminally lowering its tone.

To gay activists, who imagine that the Zeitgeist is an engulfing triumphal tide of the forces of progress, defeat is unthinkable because history and social justice are on their side. Recent battles -- most notably for the ordination of female priests in the Anglican communion -- have encouraged them to assume that, in the end, questions of gender don't signify or are negotiable. If opinion polls are to be believed, troglodyte heterosexual majorities persist in thinking otherwise.

In gay Australia the ethos of automatic entitlement is well entrenched. The Sydney Gay and Lesbian Mardi Gras slogan We are Family was a disingenuous ambit claim not just for acceptance by the rest of society but also for acceptance on the claimants' terms. It's also worth noting that while marriage is in much the same disarray here as in the US, at least Americans tend to have a more resilient sense of its sanctity and less relentlessly secular assumptions about the malleability of institutions than our local Jacobins.

At Sunday's Melbourne demonstration of commitment the cry most often heard was that the law treated gays "like second-class citizens". Others carried a placard: "I do. Latham, will you?" in cheerful disregard of the political price Mark Latham would pay for saying yes to the proposal. The expectation is clearly that deliberate self-exclusion from whatever remaining cachet goes with marriage can be overcome with a legislative wand without destroying the cachet in the process. The assertion is that there's no defining difference between heterosexual and homosexual relationships which might warrant the law privileging normatively reproductive unions. There's a faintly surreal Sisters of Perpetual Indulgence quality to all this -- as perverse as blokes who've always just wanted to be nuns and can't quite come to terms with their constitutional incapacity for the role.

As I first argued in these pages nearly a decade ago, straight and gay unions are as incommensurable as apples and pineapples. To say so is not to disparage either but to insist they're intrinsically different and that any legal means of recognising them or dealing with issues such as superannuation ought not to be a one-size-fits-all model.

Although one size has an abstract symmetry, it also carries the symbolism of moral equivalence. That is the gnat that heterosexual majorities will not swallow. No amount of hectoring or posturing is likely to change their minds. Rather, it's possible that the gay lobby's demands might jeopardise the live-and-let-live matter-of-factness that most now take for granted.

Paul Keating famously remarked: "You can't tell me that two jokers with a cocker spaniel amount to a family." In doing so he articulated the reservations of Sydney's Bankstown and the working poor, for whom family means habits of self-sacrifice and the ties that bind the living to the dead and those as yet unborn. From such a perspective, the jokers in question have chosen to be double income, no-kids wallflowers at the great dance of the generations.

Of course the extent to which sexual identity is a matter of choice varies enormously and the view from Bankstown undervalues the anguish and truth-to-self of those who have no choice. Yet there's more than a grain of sense in it, particularly the implicit recognition of sexual fluidity as a commonplace phenomenon. Would-be social engineers should note how little ice the ethos of entitlement (particularly to taxpayer-funded benefits) cuts in Struggle Street.

Mention of social engineers brings us back to McCheyne and Tuazon and their attempts to have their Canadian marriage recognised by Australian courts. Federal cabinet is keeping a watchful eye on the matter and the legal niceties of their situation have been widely discussed, not least within the Attorney-General's department.

The consensus is that they will have an uphill battle. The forum where they have most hope is the Family Court, where judicial adventurism is still prevalent. Even so, it will be hard to persuade a member of that bench to break with ordinary practice to the extent of giving an advisory opinion that the marriage is valid in Australia. There will have to be a substantive matter before the court.

The alternative that gives the court a matter to decide is to file for divorce. Whether there had been a marriage – or the parties were still free to marry without any suggestion of bigamy - and property entitlements would have to be adjudicated. This may seem like a high price for newlyweds to pay to make their point, although the heartless would note that remarriage in Canada is a readily available remedy.

However, that's not quite the end of McCheyne and Tuazon's dilemma. The judge might well find, or an appeal court might feel constrained to find, that a marriage entered into for political purposes and explicitly ended for the same reasons had been a nullity all along