State view won't change marriage in eyes of a man and woman's God

12 June 2015

We don't need a separate category for same-sex marriages, for that would be to assume that traditional marriage is changing. It isn't...

John Zerilli, Australian National University

Some married Christians are apparently so appalled at the prospect of same-sex marriage they will actually seek a divorce if it comes to pass.

The latest “protest” against legalising same-sex marriage was publicised in an article by Nick Jensen, director of the Lachlan Macquarie Institute and former ACT director of the Australian Christian Lobby.

Jensen, who has been married to his wife Sarah for ten years, explained the couple’s motivation in these terms:

When we signed the contract 10 years ago we made a contract with the state about what marriage is, which was husband and wife, fundamental order of creation, part of God’s intimate story for human history, man and woman for the sake of children.

So if the state then goes and changes the terms of that contract, then that’s something we can no longer partake in, it makes the contract null and void essentially.

Jensen’s remarks are nothing if not melodramatic, but they do give expression to the anxieties many people of faith experience around same-sex marriage. While not necessarily inspiring the same response, Jensen’s sentiments will no doubt resonate with many who see the world through the lens of a scriptural fundamentalism.

But people of faith have nothing to be concerned about. This might seem glib in the mouth of an unbeliever, but I mean it very emphatically.

Religious ceremony precedes state law

As most religious people would agree, marriage has been around for a long time. Maybe not from time immemorial, but it’s still very old. Importantly (so far as the present debate is concerned), marriage is older than the modern regulatory state as we know it.

Marriage was practised long before legislatures and civil servants were in the business of drafting and passing statutory codes, or defining words for legal purposes. When parliaments define words, they do so for strictly legal purposes to meet the demands of their citizenry.

The law is not interested in rites of passage, secular or otherwise. But it is concerned when rights and responsibilities are generated by social practices. Some of these practices may be rites of passage.

So what is at stake here? Certainly not marriage as practised for millennia across time zones and cultures. That could never change at the stroke of a pen. If marriage changes at all, it will change the way all sacraments and rites of passage change with time – in ways determined by the cultural forces at work in the very communities from which those practices first sprang.

Humanity has a long history, and also a long list, of rites of passage. Probably all of them started out with some investiture of the sacred. Some would eventually lose their claim to explicitly religious significance.

Today we have a happy mixture of sacred and secular milestones in our life-journeys. Some of them retain their sacred significance at the same time as they are celebrated by those without religious faith. Familiar milestones include birth, baptism, birthdays, starting school, bar/bat mitzvah, communion, puberty, graduation, adulthood, driving a car, first love, first job, marriage, buying a home, having a child and so on.

Some people might wish to interpret every one of these milestones in sacramental or at least spiritual terms. Others would prefer not to see any of them in such a light.

State regulates rights and responsibilities

Marriage is no different. As far as the state is concerned, however, the question is whether rights and responsibilities generated by that practice merit statutory regulation.

The role of the state in legislating for marriage is essentially the same as its role in legislating for drivers. In each case a social practice gives rise to rights and responsibilities, and the state must legislate in ways that meet the demands of all of its citizens in respect of that practice.

Some lament the role of the state in issuing marriage certificates at all. But clearly so long as we have states and so long as Australia wants to continue being a liberal democratic state, our definition of marriage cannot in fairness exclude from its purview a group of persons on the basis of their sexuality.

The law doesn’t regulate baptismal rites as such. The law of negligence and/or the criminal law will certainly have something to say about a pastor who keeps a believer submerged for a few moments too long, but the law does not concern itself with baptism as a social practice. To the extent that some laws extend to baptismal situations, I’ve never heard any Christian complain. If a Baptism Act allowed pet animals to undergo the rite, this would not affect how traditional Christians understood baptism.

On the other hand, the law rightly does have something to say about those wishing to enter a formal coupling arrangement for life. This sets up a host of rights, privileges and obligations that call for the law’s protection and enforcement.

Distinguishing between statutes and sacraments

So, to return to the question, just what is at stake in this debate? Many religious people seem to think that parliament would be attempting the fundamental alteration of a social practice. But that’s not what this debate is about.

The only thing that would change would be the statutorily prescribed definition of a word serving for legal purposes. Those purposes have to do with the state’s business of affording recognition and protection regarding a prevalent social practice (namely, that of forming lifelong coupling bonds).

We don’t need a separate category for same-sex marriages, for that would be to assume that traditional marriage is changing. It isn’t, any more than the essential character and significance of baptism changed for different Christian denominations when the law of negligence emerged in its modern form in the early 20th century.

Nothing could be further from the truth than the suggestion the Jensens’ marriage amounted to a contract with the state ten years ago. Rather, and as Jensen himself seems to appreciate, they made a solemn vow before their god and to each other.

The state merely afforded their coupling legal recognition and protection. Their sacrament predates the Australian parliament’s powers to bestow such recognition.

Christ’s own injunction is apt: render unto Caesar the things that are Caesar’s. Marriage as a religious rite of passage is not one of them.

John Zerilli is Tutor in Law and Philosophy, PhD Candidate at Australian National University.

This article was originally published on The Conversation. Read the original article.