1 Apr 2004 | INTEGRITY OF LIFE
Parliament must look very seriously at what makes marriage distinctive, and why it is special. Legislation that gives relationships other than marriage the same legal consequences as marriage affects the social institution of marriage itself. To make those other relationships equivalent to marriage, or parallel alternatives to marriage, or entitled to be treated the same as marriage, diminishes the distinctiveness and significance of marriage.
Legislation that gives relationships other than marriage the same legal consequences as marriage affects the social institution of marriage itself. To make those other relationships equivalent to marriage, or parallel alternatives to marriage, or entitled to be treated the same as marriage, diminishes the distinctiveness and significance of marriage (even if that is said not to be the direct intention).
Parliament must look very seriously at what makes marriage distinctive, and why it is special. It should not be presumed that the readiness of fair-minded New Zealanders to want fair treatment for homosexual persons and persons in de facto relationships implies a readiness to deny the distinctive or special nature of marriage as a legal, social institution.
Moreover, there is already abundant legal protection for all citizens, including people in same-sex relationships and de facto relationships. In addition to the Human Rights Act (1993) and the Property (Relationships) Act 1976 (2000), couples can, like married couples, enter into whatever contractual arrangements they like for settling property matters. A further option is to give persons in these relationships a legal right to designate persons of their own choice with rights of visitation, power of attorney, inheritance, etc. To give these relationships recognition as formal, socially approved, lifestyles is therefore gratuitous – not required for the sake of legal protection. And, of course, many de facto couples have either chosen not to have a legally recognised relationship, or are prevented by law from doing so.
The real reasons for the proposed new legislation are, therefore, ideologically driven. “Ideological” does not necessarily imply bad faith. On the contrary, it may be that most advocates of change want to be fair and avoid unjust discrimination. But they, too, must acknowledge that not all discrimination is unjust or unfair, and so they too should ask themselves what makes the difference.
Similarly, those who claim that such legislation is necessary for compliance with human rights covenants and laws should also face the fact that not all discrimination is unjust or unfair. To simply equate “discrimination” with “unjust discrimination” is to overlook the meaning of language. To discriminate is to recognise difference, i.e. to differentiate (cf any standard dictionary). To presume that “discrimination” based on marital status is unjust is to presuppose that marital status does not constitute an important difference – deserving of special recognition. So, obviously, judgements about “unjust” or “unfair” discrimination should be suspended until after consideration of whether marriage is entitled to special recognition.
And, serious discussion on what makes marriage different from all other relationships should not be diverted or manipulated by accusations of “anti-gay” or “homophobic” or anti-choice levelled against those who defend the uniqueness of marriage.
Finally, it cannot be assumed that when a government is faced by a debated issue within the community it must somehow remain neutral. A government cannot really choose to be neutral when the issue goes to the heart of society’s well-being and stability. Anyway, a government is not being neutral when it goes beyond what is necessary for safeguarding individuals in other relationships to raising those relationships to parallel status with marriage. To do that is take a position.
Given the contribution marriage is able to make to the well-being and stability of society – a contribution that derives from the very nature of marriage – we are surely not justified in putting it further at risk, as a way of meeting other ends.
This whole issue at least merits serious discussion - something much more than the presentation and hearing and counting of “submissions”.
Serious discussion also involves more than merely “balancing” claims and counter-claims against each other. It involves taking a serious look at what underpins both the claims and the counter-claims. It involves meaning.
There is a post-modern assumption that the meaning of one’s life is whatever meaning the individual chooses to give it. This leads to the conclusion (implied in this Bill) that other people have an obligation to accept, and even approve, whatever choices the individual makes. (Underpinning this position is the assumption that there is no objective truth, or at least no way of knowing it. Against this background, legislators often feel they can do no more than balance the resulting perceived “rights” against each other. Terms like “tolerance” and “pluralism” are co-opted to justify this way of “resolving” potential conflicts. The unrecognised consequence of this general agnosticism is that it ultimately excludes the possibility of achieving consensus even around matters that are crucial to human well-being and the good of society.)
Our position is that meaning is not only something that individuals and societies construct. Meaning depends also on an order already existing within nature. The biological differences between male and female, for example, do not tell us everything about the meaning of sexuality, but they do tell us something that is independent of individual’s inclinations and choices; something written into nature.
“Nature” in this context is not reducible to individuals’ “natural”, or personal, inclinations. Individuals involved in fornication, adultery, or consensual incest could all claim to be “loving” and following their natural inclinations. The point is: are their actions consistent with the meaning of sexuality and the meaning of marriage? The question matters because to fly in the face of meaning is to fly in the face of reality.
The meaning of sexuality and of marriage does not depend entirely on individuals’ intentions, inclinations or choices, nor merely on the consequences of their actions; (presumably adultery is still wrong even if it is not found out and no one else gets hurt in any obvious sense.) Some things are givens.
The fact that marriage has a meaning that is not reducible to individuals’ intentions and society’s laws would help to account for a fundamental consistency of meaning across most cultural, social and religious differences. In all societies, marriage is never perceived as just any kind of relationship, but as a quite specific kind of relationship, with certain core characteristics.
It involves more than the commitment of two people to each other. It presupposes the mutuality and biological complementarity of the sexes and the commitment made by a man and a woman who intend their relationship to be lasting and exclusive of all other parties. It is oriented towards the sharing of their lives and the support they will give each other, and it is oriented towards the creation of new human beings as the fruit of their love. It is for the sake of these two objectives – their mutual support and the nurture of new human beings – that the relationship needs to be one that is faithful, exclusive and lasting.
Obviously, not every married couple succeeds in having children, not all children are born in marriage, and not all marriages become a stable and nurturing environment for children. But even these facts do not change what is needed by spouses for their mutual support and for the proper nurture of children. Indeed, the exceptions prove the rule, as welfare statistics too obviously show.
No shifts in thinking, or in social trends, and no new technologies, can change the basic givens that are rooted in the mutuality and biological complementarity of the sexes. Attempts to make marriage into something that is not related to the mutuality and biological complementarity of the sexes could only result in a legal fiction.
The legal fiction of passing same-sex unions off as marriages or as equivalent to marriages would also create social and legal anomalies. For example: if citizens were required by law to give same-sex relationships the same public respect and acknowledgement that they give to heterosexual marriages, they would be put at risk of being considered anti-gay, homophobic, intolerant, etc., when in fact their objection is not to gay persons at all, but to changing the meaning of marriage. Their freedom to teach that marriage is different from all other relationships would be seriously inhibited. This would create a serious conflict impinging on the consciences and the civil liberty of many New Zealand citizens. (The rights of, and respect due to, homosexuals will be treated below).
Further, if homosexual unions are regarded as equivalent to marriage, then it follows that sexual differentiation is merely incidental, much as being left or right-handed is merely incidental. Indeed, some people make this comparison. If this were so, then all those who ever thought sexual differentiation was intrinsic to marriage have been wrong: sexual differentiation cannot be both intrinsic to marriage and merely incidental to marriage.
Nor can a same-sex relationship which is intended to be an alternative to marriage be treated as if it were a marriage, without this being merely a legal fiction.
The se legal fiction s, would also put at risk the normative role that law has in the formation of people’s social and moral values. Even though morality is wider than law, law plays a role in forming people’s understanding of “right and wrong”.
It might be asked how a law can be contrary to the common good if it does not impose any particular kind of behaviour, but simply gives legal recognition to a de facto reality which does not seem to cause injustice to anyone. A distinction needs to be made between treating homosexual behaviour as a private phenomenon, and treating it as a relationship foreseen and approved by the law, to the extent of making it one of the institutions in the legal system. It is one thing for the State to regulate same-sex unions , and de facto relationships, if there is evidence of some overriding need for reasons pertaining to the common good. It is quite another matter to institutionalise these relationships and make them part of the framework of society. If marriage is supposed to make a special contribution to society, then the common good requires that we not do this.
It is largely because the public perception of marriage has already been considerably weakened (by easy divorce, changing mores which no longer see sexual intimacy outside marriage as reprehensible, and easier ways of rendering marriages infertile) that it has become possible even to consider same-sex unions as a form of marriage, and gender as “irrelevant” to the meaning of marriage.
The legal fiction of making these other relationships equivalent to marriage would also violate the rights of children.
It is tragic enough when unavoidable circumstances deprive children of the benefits of being brought up by both a father and a mother. It is harder to understand when this deprivation is put upon children by the choices adults make, and worse still if such choices are given the formal approval of the State. The proposed legislation formally and effectively separates parenthood from marriage. It cannot be said not to impinge on marriage.
The UN Convention on the Rights of the Child recognises that the best interests of the child are to be paramount in every case. New Zealand should not go in the opposite direction.
Empirical data on the impact of same-sex parenting on children is hard to come by (perhaps because researchers fear being branded anti-gay?) However, not everything we know about human dignity can be substantiated empirically. After all, statements in the US Declaration of Independence and the 1948 UN Charter of Human Rights that all human beings are born equal, and have absolute rights to liberty and the pursuit of happiness, etc, are hardly borne out empirically. Likewise, there is a way of knowing that children have a natural need for opposite-sex parents even if empirical research has little to say as yet on this. In any event, there is some evidence that homosexual parents tend to be more promiscuous than heterosexual parents, and that their relationships are less stable. There is no evidence to suggest that giving these relationships legal standing would change that.
Like everyone else, homosexuals have those rights which are based on their humanity; this is the basis of equality for all. Homosexuals do not have additional rights based on, or flowing from, their homosexuality. Consequently, when it is said, for example, that every sign of unjust discrimination in their regard should be avoided (Catechism of the Catholic Church, para. 2358), this means that they should not be deprived of any of the rights that belong to them as human beings. It does not mean that they have any special entitlements because they are homosexuals. Similarly, when it is claimed that “the NZ Bill of Rights Act 1990 requires the government to treat everyone the same and not discriminate unlawfully against citizens because of characteristics such as their marital status or sexual orientation” (www.timbarnett.org.nz), the only sense in which this is true is that homosexuals may not be deprived, on the grounds of their homosexuality, of any of the rights that belong to them as human beings. It is false to assume that they have “rights” based on homosexuality.
No one is being denied the right “to marry and to found a family” in the sense intended in the Universal Declaration of Human Rights, Art. 16. If a person chooses to enter a relationship that is not marriage in that sense, that is their choice. Making that choice does not constitute an obligation on others to treat their relationship as if it were a marriage; nor an obligation on others to understand marriage differently. Claims to the contrary offend common sense and misrepresent the intent of human rights legislation.
Same sex unions are not based on the natural complementarity of male and female, and they cannot of themselves create new human beings. Methods of artificial reproduction do not change this radical incapacity. Such relationships lack the fundamental characteristics of marriage. Respect for the persons concerned cannot change that fact; nor does it require us to ignore that fact. It would be a thin kind of respect for homosexual persons that depended upon ignoring facts of any kind.
The fact that marriage and same-sex relationship are essentially different justifies their different treatment. It is not unjust to treat different realities differently.
What is described as “inconsistent statutory entitlements” and “inconsistencies in NZ’s relationship laws” (cf Barnett) are, on more careful reflection, simply the consequences of choices that some people make. We all have to live with the consequences of our choices, and sometimes the choices we make limit our other options and entitlements.
The State has a responsibility to protect marriage, not to weaken it further. Treating marriage differently is not a judgement on the worth or dignity of individuals in different types of relationship. It is based on the role marriage plays in building a healthy and stable society. It would be a social injustice to deprive marriage of its social and legal recognition as the fundamental and irreplaceable basis of society. The Parliament needs to be aware that the homosexual lobby regards “civil unions” as only an intermediate step towards full recognition of their relationships as marriages. They intend to work gradually so as not to create a “conservative” backlash.
The case for not putting relationships that lack the core characteristics of marriage on a par with marriage has been based on reason, and not on religious doctrines. But the Jewish and Christian faiths, and other ancient faiths, confirm what reason is able to show.
A man “leaves his father and mother and clings to his wife, and the two of them become one body” (Genesis 2:24). They are commissioned to “be fertile and to multiply” (Genesis 1:28). Jesus reiterates these teachings, saying
“But from the beginning of creation, God made them male and female. For this reason a man shall leave his father and mother [and be joined to his wife] and the two shall become one flesh”
Mark 10: 6-8
What was from the beginning did not originate in human decisions. It is a “given,” and it has the dignity of what God ordained.
To lose sight of the fact that human dignity is conferred by God is what leads to people looking for some other basis on which to affirm their dignity. This has now reached the point when the dignity of homosexual persons is said to be impugned unless their sexual orientation and sexual activity is being affirmed. This reflects a terrible reductionism in which people perceive themselves only, or mainly, in terms of how they feel, or what they want, or how well they succeed. Failure becomes a crisis of identity. Precisely because the rights of homosexual persons are based on their dignity as persons, and not on their sexuality, it is possible to affirm both their human dignity and the wrongness of homosexual activity.
The Catholic Church (and many others of the Christian and other faiths) will continue to (1) affirm the God-given dignity of all persons, including homosexuals, and the respect due to them as fellow human beings, and (2) teach that de facto and same-sex relationships are not equivalent to marriage and are in fact immoral. The Catholic Church will continue to do this even if there are statutory penalties. In this sense, passing this Bill will not be the end of the issue, but only the beginning.
Far from being based on prejudice or hate, this position is based on belief that all persons (infants in the womb and the aged, the sick and the healthy, heterosexuals and homosexuals, the rich and the poor) are equal in their dignity as human beings, and so their equality does not depend on circumstances, or on the claim that the sick must be treated the same as the healthy, the poor the same as the rich, homosexuals the same as heterosexuals, and so on. “All people are equal” simply does not mean that all must be treated “the same”!
Given the claims being made about gender identity and orientation and same-sex unions, Labour’s intention to “include gender identity as a prohibited ground of discrimination in the Human Rights Act” appears to mean that New Zealand citizens will not be free to teach that same-sex unions are not equivalent to marriage. This would be entirely unacceptable to the Catholic Church, to Orthodox Christians and evangelical Christians, and members of the Jewish, Muslim, Hindu and Sikh faiths.
Given Labour’s policy to “amend all remaining laws that cause unfair discrimination on the grounds of sexual orientation or gender identity”, will the distinctive and special role of heterosexual marriage be deemed unfair?
Given the natural need of a child to have a father and mother, how would removing “the aspects of adoption and guardianship law that discriminate on the grounds of sexual orientation or gender identity… place the primary focus in adoption and guardianship on the needs of the child”? (Emphasis added) Again, such a social policy would be unacceptable to all who want to promote the genuine needs of the child.
If sexual orientation and individual choice become the justification for same-sex unions, on what basis would Labour not allow a bi-sexual person to marry two persons? Does Labour intend to discriminate against bi-sexual persons on account of their sexual orientation? This question is not answered merely by pointing to the proposed restriction on polygamy, because the reasons given for recognising homosexual relationships are based on sexual orientation and choice. Genuinely bi-sexual persons could, on that premise, claim that their double orientation and right to choose are being discriminated against by the proposed restriction on polygamy.
So perhaps sexual ethics are not reducible to psycho-sexual inclination and individual choice. Perhaps choice is not self-validating, and needs a point of reference beyond itself. Might that point of reference be the meaning of things. And might sexual differentiation and mutuality be intrinsic to the meaning of sexuality, marriage and to sexual ethics?
We respectfully maintain that the government (or Parliament) should leave well alone the distinctive and special place of heterosexual marriage, and not diminish its significance by making any other kind of relationship its equivalent.
If there is some serious need to regulate other relationships for reasons pertaining to the common good, this should be done in ways that do not institutionalise those relationships or give them social standing; and also in ways that do not impinge upon the paramount rights of children, including a child’s right not to be deprived of either father or mother for the sake of giving legal approbation to some adult choices under ideological pressures.