Page 1619 - Week 05 - Thursday, 11 May 2006
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Those are some of the problems, and there are many others that could be touched on, about why this is poor law, and those are some of the problems with the bill. But I think that we also need to look at some of the philosophical issues. When the Chief Minister presented the Civil Unions Bill in this place he asked us for an objective reason for continuing what he labelled discrimination against same-sex couples. He has repeated this request often enough since then. So, before this bill passes, I think it appropriate that at least somebody answers this challenge.
Heterosexual relationships, particularly marriage, are ordered towards reproduction, towards having children. That is to say they have a natural potential for having children and so their benefits are not of necessity confined to the mutual gratification of those involved in a relationship. Heterosexual relationships, particularly marriage, have the potential to produce children and, as such, to produce a material benefit to society in the form of new members, something separate from and external to the relationship.
Homosexual relationships, on the other hand, are simply not like that. The partners might be just as affectionate and they may be just as sincere as those in a heterosexual relationship, but that does not alter the simple fact, and this is not to demean the nature and the quality of the affection and the relationship between two people who enter into the relationship, that the relationship is formed for a different purpose. This difference is the nature of the heterosexual relationship as opposed to a homosexual one and is the rationale for the different treatment of the two in relation to marriage.
The fundamental raison d’etre for society’s recognition of heterosexual relationships through the legal institution of marriage is not the recognition of the love and affection, although those are important, of the husband and wife. There are many relationships of love and affection in our world, and most of them are not recognised by law. Love and affection are enormously important qualities, but ultimately they are the ones which are superimposed on the fundamental rationale for the legal institution of marriage, which is reproduction. In other words, marriage is about children for the most part. The legal institution of marriage is, at base, a social mechanism whereby certain rights and privileges, and obligations, are conferred on heterosexual couples by virtue of their inherent potential to reproduce. It is also a device through which the responsibility for the welfare of children is allocated to people, in this case parents.
Why should homosexual relationships receive a form of recognition equivalent to that given to heterosexual relationships through marriage when they lack this fundamental attribute? It might be objected that, nowadays, homosexual couples can have children through artificial means and that there are many people who enter into marriage and who remain childless of their own choice and that there are many single parents. This is a fact of modern life, but it is an objection that misses the real point about laws and it is something that laws must do. Laws must make practical provision and be couched at a level of generality.
Any system designed to prevent those in a heterosexual relationship from marrying because they have an intention not to reproduce would be impractical, and so the legal institution of marriage exists as it does with no such explicit requirements. Traditionally, though, for the most part it has been the case that a man and woman marry for the intention of having kids.
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