Who Owns Marriage? (6) why gender agnosticism and same-sex marriage is not the solution

I said in my comments in the book that, in effect, the state is wishing to affirm homosexual identity by extending the right to marry.

I’m not persuaded that this policy is a necessary or good solution by which to affirm LGBT identity.

Here’s why I don’t think that same-sex marriage is a good idea.

It represents a radical retreat from a ‘maximal’ role of the state in actively legislating ‘for’ the family based on a marriage between a man and a woman from which children emerge (1937 Constitution) to a ‘minimal’ role where the state is now saying it has no interest or role at all in affirming marriage as between a man and women.

The rights of the individual of whatever sexual identity are now to be recognised and affirmed over and above established notions of marriage. Indeed, marriage as traditionally understood as being between a man and woman will be legally erased as a result of the Referendum. The words ‘husband’ and ‘wife’ will become legislatively redundant.

I’m not against change, nor do I think that just because the state took a particular position in 1937 is should be set in stone for ever more. Nor do I assume that the state has a duty to legislate according to Christian morality.

But it should be recognised that the state, via the Referendum and recent Family and Relationships Bill, is now demonstrating a remarkable form ‘gender agnosticism’.

The wording of the amendment to the Referendum says

“Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”

This means that the state has now legally has no interest in the gender of parents.

It means that it, in effect, has no vested interest in how children are conceived or brought into a family and indeed is encouraging and affirming alternative artificial methods of procreation since a homosexual couple cannot produce offspring.

It means that there is no value placed on male-female difference: this will inevitably contribute to an increasing erosion of gender norms and acceleration of the normalisation and societal approval of a wide spectrum of sexual identities.

Logically, in light of this legislation and if consent, romantic love and commitment are all that are required for marriage to exist, it is hard to see a reason why marriage should not be extended to a variety of other arrangements.

As I said in my comments in the book, traditional heterosexual marriage is already in deep trouble. This legislation will, I think, only speed up the erosion of marriage and the family in Irish society. It continues a process of the hollowing out of marriage with negative implications for society.

And, also as I noted in the comments, the overall direction of the legislation carries with it significant threats to civil and religious liberty.

To be perceived to ‘belong’ to the anti same-sex marriage camp is to be labelled as someone who has an regressive agenda to control the individual, promote unhappiness, endorse inequality, restrict freedom, reinforce oppression and maintain intolerance.

A new intolerance is in the air for those accused of promoting ‘homophobic’ ideas (not being supportive of same-sex marriage or holding to Christian teaching about sex and sexuality).

Over time those outside the new legal consensus will likely be increasingly marginalised. How far that marginalisation will go is unknown, but it is obvious from experience elsewhere that changing the law on same-sex marriage will have profound implications, not all of them foreseen or predictable.

See here for a very fair summary by a UK barrister on the conflict between equality law and human rights inherent in the legalisation of same-sex marriage.

For a good example of an academic discussion of this issue it’s worth looking at Same-Sex Marriage and Religious Liberty: Emerging Conflicts (2008) In it academics in an American context trace how the introduction of same-sex marriage inevitably triggers various legal church-state conflicts such as:

• Restrictions on free speech against same-sex marriage in public employment and educational contexts and elsewhere in the public square

• Withholding of licences and accreditations from professionals and institutions that oppose same-sex marriage

• Civil rights laws that prohibit discrimination in employment, public accommodation, housing and education

• Withdrawal of charity status and other forms of government ‘approval’ and funding from organisations that oppose same-sex marriage

See also this article by Roger Severino in the Harvard Journal of Law & Public Policy. He concludes that after the introduction of same-sex marriage

“the chilling effect that either litigation or the threat of litigation would have on religious liberty is real and immediate.”

Comments, as ever, welcome.