Legalising history in the marriage equality debate

Senthorun Raj examines the use and abuse of history in recent Australian legal debates about marriage equality.

Everyone is a historian. Well, you’d probably seem to think so if you followed some arguments that are currently advanced by those who oppose marriage equality. We are led to believe that marriage is a natural, divine, and/or universal institution that has been unchanged for millennia. We are told that politics or law cannot change this history. But, if history is simply an apolitical series of reflections of the past, why do people continually weaponise it for legal ends?

Let me begin with a caveat: I am not a historian. In this post, I do not seek to systematically outline the various histories of marriage in Australia. I refer you to the many excellent historians from the Australian Women’s History Network for that, and to the blog by Shirleene Robinson which began this marriage equality series. What interests me, as a legal academic, is the confusing and contradictory ways history is invoked to secure arguments against the legal recognition of same-sex couples.

Prime Minister John Howard (1997). Photograph by Helene C. Stikkel. Image via Wikimedia Commons.

Former Prime Minister John Howard did just this before he legislated to amend the Marriage Act 1961 to exclude same-sex couples in 2004. He noted:

[M]arriage as we understand it is one of the bedrock institutions of our society … It’s very much about the raising of children … and the continuation of our species.

Howard’s claims combine history and science “as we understand it” to present marriage as a “bedrock institution” from time immemorial that makes way for our future (through procreation).

This claim raises a number of questions. What sort of marriage does Howard imagine here? Monogamous? Catholic? Anglican? Permanent? I could list the historical inaccuracies with this understanding of kinship, or point you to an episode of The Tudors (2007-2010) on Netflix, but what strikes me as particularly odd in this sort of argument is the belief that history should simply be “followed.” Assuming you could make the claim that marriage has always been about X, why should that (history) alone be an argument to exclude Y?

Australian jurisprudence, however, follows a different path of historical analysis. In 2013, the High Court of Australia was asked to consider whether the Australian Capital Territory’s (ACT) “same-sex marriage” law was repugnant to federal law on marriage. The case came down to a technical point of constitutional interpretation with the High Court unanimously holding that the Marriage Act 1961 had “covered the field” in defining marriage as the union of a man and a woman with particular legal rights and status. Therefore, a separate ACT same-sex marriage law would be inconsistent with it.

Many marriage equality activists condemned this decision, but the High Court’s commentary on marriage was particularly promising. In exploring the constitutional remit of the federal parliament’s “marriage power,” all the justices noted:

The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable. Section 51(xxi) is not to be construed as conferring legislative power on the federal Parliament with respect only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation.

Even at the time of federation, marriage was not universally understood as the “voluntary union of a man and a woman to the exclusion of all others for life” – as the subsequent writing of the current Marriage Act 1961 illustrates. In laboring briefly over the history of marriage in Australia, the Court emphasised the importance of distinguishing the religious, cultural, social, and personal meanings of marriage from its legal/constitutional ones. To that end, the Court held the constitutional definition of marriage extends to voluntary consensual unions of adults (which need not be limited by reference to race, sex, or number).

Some churches, such as the Unitarian Universalist Association, advocate marriage equality. Image via Wikimedia Commons.

Even if you take an entirely legal view of marriage, it has been an evolving institution. Until various statutory reforms from the 1980s onwards, the law denied the possibility of rape in marriage, as consent to sex was irrevocably implied by the terms of a marital union. The notion that legal recognition of same-sex marriage lubricates a descent towards polygamy conveniently ignores the fact that certain foreign polygamous marriages are recognised in Australia for the purpose of divorce (in ways that same-sex marriage are explicitly not). A cursory inspection of the Federal Register of Legislation also reveals the many times the Marriage Act 1961 has been amended (most recently in October 2016).

History is a powerful resource in discussions about marriage. We do not need to be trained historians to engage with it. We are, after all, a product of these histories. The impending postal survey on marriage equality will undoubtedly unleash and expose some of this. But, as we turn back in time to find ways to justify our arguments, we might want to do so in ways that recollect critically, rather than romanticise superficially, our pasts. Feminist and queer scholars have been doing this for a long time. This allows us to ask questions of homophobic histories too: just because we did something in the past in a particular way, does it mean we should to do it the same way now?

 

senthorun-raj-photoSenthorun Raj recently graduated from the Sydney Law School at The University of Sydney. He is a Lecturer in Law at Keele University.

Follow Senthorun on Twitter @senthorun.

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