[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.