Sunday, November 29, 2009

Untying the Knot: Church, State and Same-sex Unions

[a version of this piece was run by the Fairfax media in Australia as an op-ed on their combined National Times site on November 27]

Is it time to change the way Australian law deals with marriage? As the Prime Minister and the ACT government wrangle over civil unions for same-sex couples, it seems the peculiarity of Australian marriage law has led to a situation unhelpful and unproductive for governments, celebrants and couples alike.

Although most Australians now marry in civil ceremonies, these are secularized versions of a religious model, not a genuinely civil construction. Kahlil Gibran, balloons or doves and tapes of Michael Bublé have simply (if unaccountably) replaced St Paul, candles and Mendelssohn on the organ, but the knot is still tied by ritual.

Despite a general understanding that Church and State are separate, Australia has inherited a feature of the established religion that still prevails in the UK, in the form of religious ceremonies with actual legal force. Unlike European countries and the USA, where the contracting of a marriage is a purely civil matter and ceremonies optional according to personal belief, England’s and Scotland’s established Churches can and do marry all comers, as agents of the state.

Australia inherited and continued this connection, despite the fundamental constitutional difference. Since there is no single established Church, instead the Marriage Act of 1961 allows for any Church to nominate ministers “to meet the needs of the denomination”, who are then authorized to solemnize marriages. Civil “celebrancy” (has anyone pointed this one out to Don Watson?) emerged as a secular counterpart to this oddity.

It is the continued centrality of ceremonial—traditional or tasteless as it may be in a given case—that now provokes the difficulty over civil unions in the ACT and elsewhere. The inclusion of a ritual for civil unions as part of the ACT legislation does, as conservative objectors point out, mimic marriage as Australians know it. What is less well-understood is how peculiarly Australian this situation is.

We still find ritual significant, whether or not we find religion so. And the provision for ritual that meets changed and changing needs for marriages, as well as other life transitions, remains a reasonable hope. Yet this need lies far outside the proper realm of government; and the unwarranted confusion, having thus far lain dormant in our history, is now causing some difficulty and even injustice.

Although there are many Australians who seem uneasy about civil ceremonies for same-sex couples—the Prime Minister is savvy enough to feel there are votes to lose on this front—I suspect many of the same Australians feel it is iniquitous for same-sex couples not to have equivalent legal protections and security to those of conventionally-married couples. Yet where people of different faiths and none might, given the chance, agree over such legal protections for couples of the same sex, regardless of whether they all think such unions constitute marriage as traditionally understood, the ACT legislation and that in Tasmania (where the Federal government has no power to complain) repeats the problem enshrined in the Federal Marriage Act—it makes the ritual the point.

The Federal government would do better to withdraw from the realm of offering credentials to religious and civil celebrants alike, but to ensure that appropriate legal safeguards exist for traditional marriages, and for civil unions between persons of the same sex (as well as for de facto couples, as appropriate).

Couples should contract marriages, and other unions legally provided for, in a purely civil setting, and then be able to seek appropriate forms of celebration (if any) for their needs. Religious groups should similarly be free to express in their own rituals, and in the choice of those whom they welcome to them, the beliefs and values fundamental to their traditions.

There is still room for argument about the character and desirability of different forms of relationship, as there is about Churches, good taste and sexuality itself—yet government exists to ensure the inclusion and security of all, not the continued marginalization of any group for the sake of a knot between legal marriage and public ritual than would best be untied.

2 comments:

  1. The proposal is completely sensible and yet it continues to be resisted by parts of the church and the laity not to mention the unchurched. At the recent convention of the Diocese of Massachusetts perhaps the only resolution to generate discussion of any length was one in which the convention “expressed hope that the Bishop will permit clergy throughout the Diocese to sign marriage licenses for pronounce marriages for any couple that is legally eligible for marriage in the Commonwealth”. As things stand any couple who are not otherwise legally encumbered may be married but the Bishop Shaw has asked the clergy to refrain from performing the civil functions associated with the marriage of same-gender couples. Several members of the clergy spoke of their discomfort in serving as agents of the state in performing any marriage. In much of Europe the marriage is a civil ceremony to which may be added a religious ceremony at which the marriage is celebrated and blessed. Recently, I attended a wedding in Geneva which was at the Town Hall and which was conducted by the mayor. Apart from the formalities of signing documents, the mayor discussed the legal obligations that were being accepted by the couple. In the modern state this may well be the definition of marriage. Two days later we attended the blessing of the marriage in a local church and the celebrations started. However, for some there remained the question of what may be considered the sacrament of marriage—still one of the seven—and whether a mere blessing satisfies the definition of the sacrament. Bishop Shaw has noted that the institution of marriage is in trouble throughout the 110 dioceses of the Episcopal Church and that the issue needs to be addressed at its root.

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  2. So much for my original comment. The Diocese of Massachusetts has issued the following ststement:

    Clergy of this diocese may now solemnize marriages for all eligible couples, Bishop M. Thomas Shaw, SSJE announced on Nov. 29, the first Sunday in Advent and the beginning of the church year.

    The decision came, his statement said, after a long discernment process leading up to and continuing after the action of General Convention this past July allowing that "bishops, particularly in dioceses within civil jurisdictions where same-gender marriage is legal, may provide generous pastoral response to meet the needs of members of this church."


    Bishop Suffragan Bud Cederholm characterized the outpouring of response to the decision from members of the diocese as "largely one of appreciation, as well as understanding that this is where we are pastorally at this time."

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