My last post led to a war of words with a friend who is, shall we say, on the Orthodox side of things. We ended up agreeing to disagree – I think Israel should recognise Mazorti Judaism in its legal framework, he thinks it’s unfair to use the word “archaic” to describe the belief that women can’t be good leaders, because it has connotations of being outdated when that view clearly isn’t.

Meanwhile, I also had to explain my view on gay marriage to a different friend – who, thankfully, did not take quite as much of an issue with the Mazorti movement – and I saw a few Facebook conversations going on regarding the revelation that Tony Abbot has a gay sister and has *gasp* not shunned her. In fact, he treats her quite well.

Why is that a “shock”? Well, Tony Abbot holds the point of view that “marriage” is something that happens between a man and a woman. To numerous proponents of gay marriage, this means that he is a priori a homophobe. I definitely saw at least one comment thread (that I couldn’t comment on…) where someone accused him of trying to “hide” his “bigotry” through treating his sister well when he clearly is actually a bigot because he is against gay marriage.

This is a stupid argument to make. There seems to be this horrible tendency amongst fanatics to assume that anyone who disagrees with them must be doing so out of prejudice. I see it all the time with the Middle East conflict. Being anti-Israel is antisemitic, and being pro-Israel is Islamophobic and homophobic and sexist and normative and imperialist and neo-colonialist and… you get the picture. It also happens with immigration, feminism and plenty of other areas. It’s a very simple argument, it’s almost always wrong and it actually works against your point – no one is ever going to agree with you if you keep calling them a sexist because “Israeli occupation hurts Palestinian women as well as men”. Especially when you have a month-long summit on the global status of women and this is the only condemnation you could come up with – as if everything is fine and dandy everywhere else in the world (it isn’t). Yeah UN Commission on the Status of Women, I’m looking at you.

Big M little m

The problem is that they are arguing about different things. To gay marriage proponents, “marriage” is a right. To Tony Abbot, “marriage” means the marriage described by Lord Penzance in Hyde v Hyde & Woodmansee (1866) LR 1 P & D 130, at 133:

The position or status of ‘husband’ and ‘wife’ is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite rights upon their offspring. … I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.

When he said “Christendom”, he meant “Christendom”. He actually distinguished between “Christendom” and Turkey, where the Sultan had a whole harem of wives and “marriage” was between one man and one or more women.

Notice, though, there are two different components to “marriage” that the good Lord was talking about. Let’s call them “marriage 1″ and “marriage 2″:

• The first component is the “status” of husband and wife. As he said, this status gives the married couple certain legal rights and also may give rights to their children. What rights are these? Well Lord Penzance couldn’t pin that down, mostly because it varies from place to place. For a whole variety of reasons, marriage law is slightly different everywhere, although everywhere has some kind of marriage law.

• The second component is this controversial sentence that half of Australia wants to remove from the Marriage Act and the other half is fighting tooth-and-nail to keep: “the voluntary union for life of one man and one woman, to the exclusion of all others”.

Protect what institution again?

This is why there is conflict. When Henry VIII broke from the Vatican and founded his own church, it was because he disagreed with the Catholic idea that you could not be divorced without approval of the Pope – and preferred the more progressive Anglican idea that you could not be divorced without permission from the King. He created the Anglican Church, appointed himself as its head, and declared that as the embodiment of the Church and the Sovereign, he could marry whomever he damn well chose.

So began the Anglican institution of Marriage that is now being strongly championed by Australia’s Catholic community – an involuntary union, forever, of one common church and one common law, to the exclusion of all others.

I believe that State marriage is destroying marriage. Enforcing marriage 2 in a legal system is done today in some Muslim countries and the results are horrible and inhumane. This is where adultery is criminalised  and punished – in some cases with death by stoning – or where boys and girls are married-off by their families for money or social status and then never permitted to separate. Thankfully, “Christendom” has become “the West” and we no longer have a taste for this kind of thing. What that means, however, is that marriage has been watered-down over centuries.

What does marriage mean today? To some, it means permanent residency in Australia; to others, it means a tax break; to others, it means a baby bonus; to others, it means inheritance. It also does not carry much weight – the idea of a union “for life” is disappearing throughout society. Marriage is becoming a temporary arrangement, whereby a man and a woman can join in a union for a few years, one gets an Aussie passport, the other gets some nice inheritance, and both get tax breaks. Meanwhile, neither of them “excludes all others” and they eventually get divorced, meaning that the whole “for life” thing didn’t happen either.

What I have just described is the legal institution of “marriage”, as it exists in Australia in 2012. However it may be defined in the Marriage Act, this is clearly not “the union of one man and one woman, to the exclusion of all others”. So here is my question: why would any Catholic like Tony Abbot even want to keep that? Let alone exclude two men or two women from being a part of it. And how is excluding gay couples from that institution “saving marriage”? Do you really think that allowing two people of the same gender to “marry” is the silver bullet that will tear down the institution?

Honey, we need a divorce

This is why the whole debate is so wrong. The people who want to “legalise gay marriage” do not want to change marriage 2, but they want gay people to participate in marriage 1. The people who oppose “gay marriage” want to preserve marriage 2 and so they refuse to change marriage 1.

To put it another way: marriage 2 does not discriminate – any person, regardless of sexual preference, is able to become part of a “voluntary union for life of one man and one woman, to the exclusion of all others”. Marriage 1 does discriminate – it gives legal rights to heterosexual couples and denies homosexual couples those same rights.

So what do I want? I want a divorce – of church and state. I want to sever the centuries-old union between legal marriage and Christian marriage and allow each to go back to where they should be: one in court, the other in church.

I want to abolish the Marriage Act and replace it with something called the Civil Unions Act or similar. An Act that would allow two consenting adults to be joined in whatever over-politicised legal mess they want, but would leave marriage out of it.

Marriage can go back to being “a union between one man and one woman, to the exclusion of all others” in substance and not just in name. Different religious denominations could marry whoever they want however they want and could choose whether to recognise each other’s marriages according to their beliefs. The State would no longer need to be the arbiter of who can and cannot call themselves “husband” and “wife”.

My bet? Marriage would mean something again, because it would be something that people do when they believe in it. It also would also mean that marriage advocates could concentrate on things that would actually save marriage – like more accessible couples therapy and childcare.

Gay marriage is not the issue, there are plenty of provisions in the Marriage Act that have already eroded marriage beyond recognition. We need to stop talking past each other on gay marriage and realise the real enemy here – the Marriage Act. If you want to save marriage, stop making it a political issue and let it be about morals again.