The next step in marriage reform
Passing same-sex marriage into law should be a stepping stone, not the endgame. We’re still nowhere near marriage equality.
Celebrations, online and offline, erupted when New Zealand legalised gay marriage Wednesday night. Emotions clearly run high on this topic (though I’ve never understood why). The parties, tweets and parades all sing the same tune: we’re proud to live in a country, any two people, regardless of sexuality, can get married. That raises the question: Why only two?
In this sense at least, the conservatives were right. True marriage equality has still not been achieved. Equality demands that all people be treated the same. But we still deny marriage to people who to be romantically involved with multiple people or close relatives. If marriage is a “human right”, as proponents claim, why do we continue to refuse it to some?
One counter-argument is obvious: polygamists can still marry someone, just only one person; incestuous lovers can just find someone else. This misses the point. After all, gays, too, could just marry someone to whom they’re not attracted. “Equality” of a rudimentary sort did exist before same-sex marriage: everyone had the same rights, namely, to marry someone of the opposite sex. The real point is that we shouldn’t judge people, or deny them rights, based on whom they love. If it happens to be someone of the same sex, fine. If it happens to involve five people, that’s their marriage, not ours.
Equality for all, not just couples…
It would appear, then, that true marriage equality effectively demands open slather. Anyone (provided they can and do consent) should be able to marry anyone, when or as they please. Anything less than that would still be discriminating against some people. But this is, at face value, a rather absurd outcome. To have no legal restrictions at all probably renders it meaningless.
That raises the question conservatives have been rightly asking, but failing to answer satisfactorily: What is the meaning of marriage? I will not dive into such a deep question here. But as I’ve previously written, submitter Graeme Pirie had a worthy answer: the state needn’t care. It can issue “relationship certificates” without defining “marriage”. People can give marriage their own definition and rituals.
Mr Pirie’s submission didn’t touch on polygamy, but it would be easy enough to extend. Unfortunately, that takes us in a full circle. If there are no legal restrictions on state-recognised relationships, then why does the state recognise relationships?
The most obvious answer is in property law, especially in divorce or inheritance. We allow couples to adopt children jointly. When applying to immigrate, having a New Zealand-resident partner helps (though “partner” here is much looser than marriage-equivalents). We place some restrictions on partners too: in disclosure of interest provisions, your partner’s interests count as yours too. There are more: my search for the word “spouse” in public legislative acts got 129 hits.
…or better still, not just lovers?
Those rights feel nice, but it must be said that they too are a violation of equality. It’s true that anyone can enter a relationship, but that misses the point for the same reason that “they can marry someone appropriate” misses the point with gays, polygamy and incest. We shouldn’t be differentiating between people on whom they love—or don’t, as the case may be.
At this point, marriage advocates (gay-loving or otherwise) will say two things. The first is that marriage is important: it founds a basic social unit and provides a stable environment for kids. If that’s the case, people will do it anyway.
The second observation is that people want the rights and responsibilities of relationships. For rights granted by the state, such as immigration, it’s discriminatory to treat them favourably just because they have a partner. It’s similarly unclear why joint adoption should be restricted to romantically involved couples. As for obligations to others, like disclosure of interest, these simply reflect that partners have an interest in each other. Partners aren’t unique in that regard; the principle behind such rules (you’re interested if you have a close association with someone) should be used instead.
That leaves rights and obligations the parties have to each other, e.g. relating to property. There’s nothing stopping them getting them by private contract. The parties would then be free to choose how they want their relationship to be governed. The details need not be the business of the government.
As any marriage equality advocate must have pointed out when defending gay marriage, true equality isn’t just about people having the same legal rights on paper. It’s about respecting how different people achieve self-fulfilment. It’s about being blind to the identity of one’s partner. All I’m saying is that the law should also be blind to how many partners they have and whether they have a partner at all. The only way to do that is for the state not to recognise relationships at all.
When and only when that day comes, we’ll have true marriage equality. For now, marriage still discriminates. Marriage equality proponents should not rest now; there is much more to do. Either that, or they should pick a different label.
Image credit: Dominion Post