Robert P. George

The Liberal Party, Same-Sex Marriage and Freedom of Conscience: A Case of False Promises?

In recent months, certain proponents of same-sex marriage (hereafter, SSM) within the Liberal party have argued that people who support so-called “traditional marriage” ought to vote “Yes”, for the simple reason that freedom of conscience and religion will be better protected if the relevant changes are implemented under the auspices of a Coalition government. The argument is composed of three main prongs, or assumptions: first, SSM is inevitable in Australia, regardless of the outcome of the current postal plebiscite; second, as the party of small government and individual freedom, the Coalition is best-placed to secure the rights of conscientious objectors under the new regime; and third, if the present push for SSM fails, the country runs the risk of giving the ALP – which is less sympathetic to intellectual (including religious) liberty – the task of presiding over future alterations to the marriage act.

One might call this the “Argument from Inevitable Change” or the “Argument from Salvaging Individual Rights”. Whatever label one wishes to use, I don’t accept it on its face – largely because it means evacuating one’s position of all principle. I’m inclined to agree with the view of Quadrant editor, Keith Windschuttle, who has said the argument is a “political tactic”, intended to “deflate” opponents of SSM rather than engage them in debate. However, even if I thought there was some tactical merit in voting for change – based on the belief that doing so now would guarantee some measure of religious and intellectual protection – there are pressing questions over the validity of the argument’s basic components. Its first and third limbs are relatively sound: SSM has the air of inevitability about it (though, of course, it’s not a fait accompli); and the ALP cannot be trusted when it comes to securing the rights of conscientious dissenters. But it’s the claim’s second limb – namely, that the Coalition will protect the liberties of individuals and groups opposed to SSM – with which I take issue.

This brings me to reports regarding Liberal Senator Dean Smith’s private member’s bill to legalise SSM. His comments about the bill have raised serious doubts in my mind over the Coalition’s ability to guarantee the aforementioned rights, particularly as they pertain to religious freedom. Smith was quoted recently in The Australian saying that whilst his bill provided safeguards to religious institutions, ministers, and the like, it did not extend those protections to business owners who provide wedding-related services, unless they could “prove a link to a religious body” (“Same-sex safeguards not for all businesses,” September 18th, 2017; article paywalled). He said that if a bakery, for example, failed to substantiate a formal connection to a church (or mosque, synagogue, etc.), it would not be afforded legal defence if it refused to bake a cake for a same-sex wedding. Smith argued that because people cannot presently discriminate against gays and lesbians, they should not be able to refuse services to a same-sex couple wanting to get married. In his mind, this would represent a regression in current anti-discrimination law.

Should conscientious objectors take moral issue with rendering services to a same-sex couple for their wedding, they are likely to be left completely exposed under such proposals. I recognize that there are important legal questions related to whether providing, say, floral arrangements at a same-sex wedding ceremony constitutes endorsement of that union, just as there are debates regarding the provision of such services, and whether this violates the vendor’s moral and/or religious convictions if they happen to oppose SSM. But the religious exemption clauses in Smith’s bill do not assuage my concerns at all. Woefully inadequate, they are built upon logical inconsistencies and false assumptions – trading, it seems, on very narrow conceptions of both religious expression and legitimate grounds for dissent. I think it’s worth examining these intellectual infelicities in a little more detail.

Religious Bodies and Believers: An Illegitimate Distinction

To begin, there is the question of consistency within the proposed exemptions, particularly as they apply to people whose objections to SSM stem from religious convictions. Smith’s bill artificially divides formal ecclesiastical bodies (as well as ministers in their employ) and the wider pool of religious adherents who compose them. Such bodies are far more than the institutional frameworks distinguishing them from other organised groups. Similarly, the ongoing life and reality of religious institutions exceeds the work of ministers, pastors, imams and the like. Rather, they are sustained by the activities of individual believers, as they gather for worship, serve each other in a variety of ways, and generally manifest the communal dimensions of their respective faith traditions. Religious institutions are, in other words, social realities, embedded in a complex set of networks in which “professional” clergy and laypeople both participate. In the case of Christian churches, ministers exist for the sake of their congregations – conveying religious truth, which is then embodied and enacted in the lives of congregants (whether individually or corporately). The doctrinal positions which define or constrain a minister’s behaviour – which in this case entails beliefs about the nature of marriage – will normally perform the same functions over the lives of those he serves, wherever they happen to find themselves.

Additionally, Christian accounts of religious life emphasize the inherently unitary nature of the church, such that religious officeholders and members form one coherent organism. One is an “in-grafted” member of this organism by virtue of being a professed and genuine Christian, regardless of where he or she happens to be. In many ways, there is no substantive distinction, on either theological or sociological grounds, between religious bodies or ministers on the one hand, and the laity on the other. The religious provisions of Senator Smith’s bill rest upon an unwarranted abstraction, failing to recognize the inherent inseparability of religious institutions and their adherents. To refer to the former apart from the latter – as the bill effectively does – is to trade in illusory deconstruction. The bill’s exemptions divest formal ecclesial bodies of the very believers who help maintain their distinctive shape and identities, even as they remove said believers (at least conceptually) from the communal context that sustains and grounds their beliefs. That’s why Rev Dr Joseph Parkinson, director of the L.J. Goody Bioethics Centre in Perth (attached to that city’s Catholic archdiocese) was correct when he recently wrote to the editor of The Australian that “it is inconsistent and illogical to create exemption for ministers” if they are not extended to “individual religious adherents” – for the very reason that “in respect of beliefs about…marriage, there is no distinction” between the one and the other.

Narrowing Religion

But if Senator Smith has illegitimately tried to parse religious bodies and believers, he is also guilty of holding to a reductive account of religion. A reading of the relevant exemptions suggests that it is only the work of official clergy, operating within an explicitly or institutionally religious setting, which warrants protection; religious adherents who try to conform to the teachings of their faith tradition in their daily lives – including, in the case of religious conservatives, adherence to teachings concerning traditional marriage – are not afforded the same courtesy. But that the bill exclusively concentrates on the activity of formal religious bodies and accredited ministers suggests that Senator Smith is thinking of spiritual expression in extremely narrow terms. It is, in other words, far too restricted an understanding of what religion is, and the role it plays in – and over – a person’s life.

To be sure, practices within formal houses of worship (singing, prayers, chants, readings from sacred texts, recitation of creeds, rituals, etc.) constitute important manifestations of religious devotion. This cannot be denied. But just as religious bodies are not exhausted by either their institutional architecture or their official representatives, so religion in general is not completely captured by what happens in formal services (however articulated). For many believers, religiosity is something that colours and shapes every dimension of life – not only within, but beyond, the church, mosque or synagogue. Any serious religious individual will seek to implement, where possible, the teachings of her religion in whatever station or environment, including the workplace. This is only natural: an authentically religious view of life would seem to entail a fully integrated existence, rejecting of crude, post-Enlightenment divisions between the secular and the sacred. Trying to compartmentalize something as all-embracing as religion is simply impractical, for it is commonly embedded in the deepest strata of a person’s thinking. Moreover, for those who swim in the Protestant stream of Christianity, work – even “secular” work – is often viewed as a divine calling, offering the believer the opportunity to worship God through her labour. Obviously, this attitude must be carefully balanced with the right of others to pursue their goals unmolested. But if religion is a whole-of-life concern, then it normally entails the adoption of a comprehensive approach to the teachings and ethos of one’s particular faith tradition.

Senator Smith’s bill recognizes none of this. It relies instead upon the forced demarcation I noted earlier – owing so much to Enlightenment thought – between spiritual and secular affairs. That seems to be implicit in the proposal to grant formal religious bodies and employees legal protections if they do not wish to solemnise a same-sex wedding, but not, say, a Christian florist who declines to provide services for such a ceremony. It wrongly assumes that the influence of one’s religious beliefs can simply cease at the door of one’s house of worship, safely corralled by the dictates of a secular society. But to repeat myself: religion does not actually work in this fashion. Offering an interpretive framework within which to make sense of the various elements of one’s existence, it has the potential to indelibly influence every dimension of life. Religion is far more than a series of atomised opinions about a transcendent realm, severed from the everyday concerns of the individual adherent. It cannot be reduced to a clutch of discrete acts, performed in well-defined settings, that can be described as overtly “spiritual” (e.g., worship in a church setting). The proposed bill leaves the public with a “thin” – nay, eviscerated – conception of religiosity, failing to capture the broadness of the phenomenon as it actually occurs outside the pages of proposed legislation.

What Counts as (Unfair) Discrimination Anyway?

I must confess that clearly interpreting Smith’s reasons for limiting the bill’s anti-discrimination exemptions isn’t easy. One might argue that the proposed parameters are intended to prevent some vendors from cloaking anti-gay animus in the garb of recognized religious systems, thereby saving gay couples from reputational and psychological damage. By limiting the right to conscientiously decline participation in a same-sex wedding to ministers of religion, invidious discrimination against homosexuals by supposedly bigoted commercial operators can largely be erased; if that means capturing other business owners who, because of genuine religious or moral objections, cannot contribute to the production of a same-sex wedding (so the argument might go), so be it.

But I wonder whether a more disturbing interpretation of the bill’s exemption clauses might not be more accurate. On this view, any refusal to provide wedding services to a same-sex couple constitutes unfair discrimination, regardless of motive or sincerity. This would make sense of the absolutism in Senator Smith’s remarks concerning commercial businesses and current anti-discrimination law, where he offered a fairly unnuanced position on what counts as discrimination. Indeed, that he grounded the narrowness of proposed exemptions in the fact that people cannot presently discriminate on the basis of sexual orientation implies some kind of equivalence: refusing service because a person is gay and refusing service because one does not want to implicitly endorse a same-sex wedding amount to the same thing. Such an interpretation would also cohere with what appears to be Smith’s restricted view of legitimate religious expression and discrimination. Finally, and as we’ll soon see, it would conform to established judicial and legislative practice overseas, which seems to regard conscientious objection to SSM on the part of commercial operators as a form of invidious discrimination.

Let’s assume this latter reading is correct. If so, there are a couple of problems with the way Senator Smith has cast a commercial operator’s possible moral-religious objections to SSM. First, it would seem to rely on Smith’s impossibly narrow conception of religious expression – which, as we have already seen, hardly reflects religiosity as it is instantiated in the experiences of ordinary people. Second, equating such objections – and the consequent refusal to offer one’s commercial services – with homophobic prejudice is simply fallacious. It is false to think that a vendor’s decision to withhold their products and skills from a same-sex wedding is merely a subset of anti-gay discrimination. Contrary to what some SSM activists believe, it is logically possible to hold traditional views around marriage whilst also being completely free of animus towards gays and lesbians. Indeed, a positive view of same-sex relationships is logically consistent with the conviction that marriage is, by definition, a dyadic union of sexual complements. In my view, these positions can be clearly distinguished. But Senator Smith fails to recognize this, conflating opposition to SSM – perhaps expressed by a refusal to render services to a same-sex wedding – with a more general refusal to serve customers based on their sexuality.

The case of Barronelle Stutzman, a florist in the United States, is instructive in this regard. For many years, Ms. Stutzman served Robert Ingersoll and Curt Freed, a gay couple. She knew they were in a homosexual relationship, whilst they knew she was a conservative Christian. Ms. Stutzman had no qualms serving the couple, and supplied them with floral arrangements for a variety of personal and celebratory occasions. But when they asked her to supply flowers for their wedding, she politely declined. Ms. Stutzman grounded her refusal in her belief that marriage is defined by the union of one man and one woman. The couple sued her, as did the state of Washington. In its final judgment, the Supreme Court of Washington stated that Ms. Stutzman’s decision amounted to unfair discrimination on the basis of sexual orientation. But as Ryan Anderson, writing for The Public Discourse, has said, the court’s ruling (and, by extension, Senator Smith’s bill), illegitimately elides real and imagined discrimination. Anderson asks us to consider a florist who refuses to serve customers who identify as LGBT simply because of that identification. He contends, “that would be a case of invidious discrimination because the mere knowledge that they identify as LGBT should have no impact whatsoever on the act of the florist selling flowers, because there is no rational connection between the two”. But, Anderson continues, in the case of Ms. Stutzman, her decision “did not spring from any convictions about people who identify as LGBT”, and had nothing to do with making distinctions based on a person’s sexual orientation; rather, it was rooted in what she believes to be the true shape of marriage. If Senator Smith, like Washington State’s Supreme Court, thinks that commercial operators who are uncomfortable offering their services to a same-sex wedding are guilty of making unfair distinctions as a result of one’s sexuality, then he has simply recapitulated those earlier conceptual errors: not only are we brought back to the original blunder concerning the scope of acceptable religious expression; it would appear that on this view, refusal to lend one’s creative talents to a same-sex wedding is per se an instance of unjustified discrimination.

Needless to say, these errors have practical consequences. They leave ordinary people – people like Ms. Stutzman – vulnerable to grievous violations of conscience or ruinous legal and pecuniary costs. Harnessing the state’s power to curtail a person’s ability to live in accordance with deeply-held beliefs corrodes our society’s commitment to liberty of conscience. Trying to coerce conformity on a particular question is neither practical nor ethical in a profoundly pluralistic society; indeed, opinions on this question – as on so many questions – are radically incommensurate, such that to compel a person’s participation in something they regard as spurious isn’t simply to inconvenience them, but to force them to betray their own, deeply-rooted convictions. Against this, one might invoke the harm principle: excluding swathes of people from anti-discrimination exemptions saves same-sex couples from psychological injury caused by a denial of service. But where does the real harm lie? With the hypothetical same-sex couple, which may be forced, say, to look for another vendor to organise the floral arrangements for their nuptials? Or with the dissenting florist, who is confronted with the unenviable choice of either violating her conscience, or leaving herself open to hefty legal and financial penalties?

Conscience Protections for the Non-Religious: A Forgotten Constituency?

Up to this point, I have only spoken of the flaws contained in Senator Smith’s bill as they relate to religious sources of opposition to SSM. But what about people – wedding services providers, celebrants, and the like – who may hold non-religious objections? Admittedly their numbers are likely to be miniscule. Still, the importance of individual rights isn’t determined by the number of people who are likely to hold them. There may well be some business owners, providing a variety of wedding services, whose secular belief system does not permit them to validate the reality or morality of SSMs. Even if a vendor’s religious concerns were to be recognized, and exemptions were extended to them, this would still leave non-religious conscientious objectors exposed to legal action. On a conceptual level, the bill commits itself to what I regard as a falsely restricted view of opposition to SSM. It tacitly assumes that only those whose disquiet is grounded in religion could credibly refuse to participate in a same-sex wedding (and then, only in the context of one’s institutional affiliation with a recognized denomination). Smith’s proposed bill says nothing about opposition to SSM that isn’t grounded in religious belief. Does this not represent the presumption that such an attitude can only ever stem from a religious worldview? Certainly, it’s possible to base one’s commitment to so-called “conjugal” marriage upon a deference to traditional mores and norms, or the belief that children ideally ought, where possible, to be raised and socialized by their biological parents. Moreover, academics, like the legal scholar Robert P. George, have sought to root their conviction that marriage is a union characterized by sexual complementarity in a specific metaphysic – one that does not, in the final analysis, rely upon religious tradition, belief in God, or revelatory claims. Whether such arguments are successful in persuading others is beside the point; the fact that they exist suggests that it is possible to hold to a view of traditional marriage apart from religious belief. Yet the proposed bill apparently makes no references to this reality, allowing for only the most narrow expressions of intellectual liberty. I recognize that wedding vendors, regardless of the source of their beliefs, are not afforded legal protection; neither a religious florist nor a secular baker – both of whom oppose SSM – can expect to find solace in anti-discrimination exemptions. Still, I worry that secular business owners who may oppose SSM are being ignored, and left out in the cold: unable to practice freedom of conscience, for fear of legal sanction; and bereft of the sustaining networks that flow from religious affiliation or identification.

Conclusion

Claiming that the Liberal Party is the primary political guarantor of individual freedoms is to state only the most trivial of truths. The foregoing examination has, I think, made that clear. Yes, it’s probably the case that they are to be (marginally) preferred to the ALP. Yes, they nod in the direction of freedom of religious expression. But if Senator Smith’s bill is anything to go by, then the Coalition is prepared to offer only minimalistic concessions to those in the wedding industry who decline to support SSM. Smith’s proposals are riddled with false conceptions, fallacious elisions and a variety of inconsistencies, giving the lie to his contention that this strikes a fair balance between religious expression and freedom from discrimination. The bill itself fails to properly capture the meaning and scope of religion for so many people, whilst saying nothing at all about other (non-religious) forms of opposition to SSM. All told, it makes too large a concession to the idea of “unjust” discrimination, resulting in many of the flaws I have noted. Coalition promises in this regard need to be taken with a sizeable pinch of salt. On so many issues (think the debate around 18C of the RDA, for example), they have shown themselves to be lacking in moral and intellectual fiber. This isn’t to say that the Liberals don’t have men and women of integrity working for it. I think of people like Andrew Hastie, Tim Wilson and James Paterson, who all evince a robust and sincere commitment – not mere rhetorical badge-making – to our society’s fundamental freedoms. But the party as a whole seems to have drifted away from its ideological moorings, whether through fear or a simple lack of intellectual sustenance. Moreover, the wholesale evacuation of Christianity from modern Australian culture – and with it, the attendant rise in religious illiteracy – means that concerns regarding encroachments upon freedom of religion are more likely to be met with a bemused impatience. Present claims notwithstanding, not even the Liberal Party is immune to such developments. I’m skeptical, then, of the notion that voting strategically for change will help proponents of traditional marriage salvage anything more than a narrow, restricted – and largely token – band of rights.

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Postcards from the Marriage Wars – Part Two

It wouldn’t be long before same-sex marriage made its way to Australian shores. Slowly, inexorably, it has lumbered towards a point of mass acceptance. Of course, the issue, as something discussed and fought over, has been alight for a number of years now (providing much fodder for media outlets). What I am talking about, however, is changes to the institution of marriage itself. For a few fleeting moments, SSM was a reality in this country – gaining a foothold in that strange little enclave, the Australian Capital Territory, late last year. That it proved to be a temporary victory for proponents of SSM is, I believe, immaterial. A new threshold has been crossed, and I think the debate – at least for social conservatives, orthodox Christians, and others of their ilk – has already been lost. And although we might have reached a new phase, it seems to represent the culmination of forces that have been gathering pace for some time. That, however, is an essay for another time.

News outlets carried pieces on what took place in the ACT, as well as on the issue more generally. I have read a number of reports related to these developments, but in this article, I want to concentrate on a piece written by a journalist for The Age. It is not unique, of course; others have been offering these arguments for many years. But it is representative in its approach, and so I shall use it as a touchstone, so to speak, with which to engage current attitudes and mores.

I turn, then, to a series of articles written by Sam De Brito, whose writings appear in The Age and other Fairfax newspapers. A little while ago, he wrote an open letter to Fred Nile, the staunch Christian conservative and NSW state parliamentarian. In it, he chided Rev. Nile for “picking and choosing” when it came to interpreting and applying the various commands of Scripture – in particular, that part of the Bible Christians call the Old Testament. The implication was that the leader of the Christian Democrats was not taking his own holy book seriously – happy to deny certain “rights” to homosexual couples (which De Brito seemed to imply was the result of Rev. Nile’s own prejudices), whilst conveniently setting aside Scripture when it came to thornier questions that might cause some discomfort. In a follow-up article (“The Alternative Ten Commandments,” The Age, December 6th, 2013), De Brito wrote that his main “beef” was with Christians who, according to him, inconsistently apply the Bible’s injunctions. He went on to criticise – maybe “mock” is more appropriate – that most-vaunted of religious legal codes, the Ten Commandments.

One wonders how De Brito would have reacted had he encountered a Christian who accepted the Bible’s command to care for the poor and destitute (e.g. Exodus 22:21-22; 23:2-3; Proverbs 21:13, 15), whilst rejecting its prohibitions against homosexual practices. I for one suspect he would be less concerned about theological and interpretative inconsistency. In any case, there are a number of problems with De Brito’s views – as rendered in his second article – which all evince a desperate lack of biblical understanding, and a commitment to caricature over serious analysis. I will turn to those particular calumnies in a later article.

In recounting email exchanges with angry Christians, De Brito says that he was confronted with a number of emails that:

“…predictably descended into…arguments that without God’s word to follow on issues like who we can shag in the privacy of our own homes…”.

The characterisation of sex as a private activity is, as we shall see, relevant. Elsewhere in his writings on marriage, De Brito seems to recognize the public nature of that particular bond. Indeed, it is precisely the public dimension of the institution of marriage – and the consequent recognition couples are accorded by virtue of their participation in it – that so animates supporters of SSM like Sam De Brito. Now, it is perhaps the case that De Brito’s reference to “shagging” and the like was, in fact, a crude rendition of some of the arguments made by his interlocutors. His stated views regarding marriage would, as I said, suggest some kind of acknowledgment regarding its public dimensions. But what, then, of his views on sex? According to De Brito, sexual union is reduced to the act of “shagging” in one’s home. That he emphasises its private nature is evidence that he thinks of it as nobody else’s business. Moreover, in view of the fact that he includes the exhortation to be a “good shag” in his alternative Decalogue, as well as a pointed self-reference as a never-married father, it would seem that De Brito thinks of marriage and sex as being two, distinct realities. Indeed, he appears to think that sex and marriage can be decoupled and grounded in quite separate ways, with no essential connection between them. What ought one to make of this?

First, I should point out the obvious: sex, as a discrete act, is itself a private thing. That hardly needs saying, and I am not implicitly advocating voyeurism. But its representative and symbolic overtones possess a public-social dimension, and have public-social ramifications. Take heterosexual sex, for instance. A man and a woman may come together, either for a night or for a lifetime. What they do in the bedroom is, to the extent that it involves the two of them, private. However, what if that union results in the conception and birth of a child? And what if the temporary coupling took place between people who were otherwise unknown to each other – a “one night stand”, in other words? The sex act, in itself, was indeed private, cloistered. But its consequences, if they included the birth of a child (for example), would be anything but. This, of course, is a little different to the discussion at hand, but goes some way to showing that sexual union cannot be seen as private in an absolutist sense. Not only in its possible consequences, but also in its meaning – which is often shaped by broader social and cultural forces – is sexual intercourse a more-than-private reality. It is inevitably caught up in a whole raft of relationships, networks, social constructions, etc., whilst also having the potential to create new relationships, networks and social links through its inherent generative potential (not to mention the possible physiological and psychological consequences that may flow from the sex act). Marriage, in this respect, is not aberrant. It doesn’t artificially map an institutionalised framework upon an otherwise private relationship; rather, it seeks to recognize what is already an embedded, essential reality about (hetero)sexual unions.

It is this connection between marriage and sex that forms one of the major planks in traditionalists’ efforts to uphold the idea of marriage as a union between a man and a woman. Such an understanding recognizes the complimentary nature of the heterosexual union, which is both comprehensive in itself and inherently geared towards reproduction. Of course, I realize that not all male-female couples choose to use their unions for the purposes of having children. Others, through no fault of their own, are unable to have children. However, aside from the intrinsically comprehensive nature of the heterosexual union (at a basic biological and systemic level, the bodies of males and females seem, for want of a better word, “designed” for each other), it alone amongst the various unions available to people is capable of generating children. It is an inescapably social bond, embracing the children that issue from it, as well as the social world that will one day be influenced by those children. Robert P. George, a professor of jurisprudence at Princeton University, writes:

“Moreover, marriage (again unlike ordinary friendships) is a matter of public concern and not merely of the private interests of spouses. That is because marriage brings together a man and woman as husband and wife to be father and mother to any children born of their union.”

The institution of marriage simply codifies a unique biological reality, thereby providing a safe environment within which children may be reared and raised. Conservatives have every reason to preserve this institution, given its importance as a framework within which healthy, well-adjusted individuals may be socialised.

Now, back to Sam De Brito. His argument seems to involve a contradiction: on the one hand, he upholds the idea of marriage as, in some sense, a public institution – one that (presumably) should be available to all, regardless of the sexual permutations and combinations that compose individual unions; but, on the other hand, he seems to suggest that sex – which, historically, has been seen as an inescapable component of marriage as traditionally defined – is little more than a private transaction: “shagging” in one’s bedroom, as it were (of course, De Brito would likely say that it can be more than that, by arguing that it is often an expression of the love that exists between two [or more?] people. True; but if can be other than this, to which many a drunken one-night stand testifies, then it cannot be defined by it. Thus, the only relevant commonalities between the various incarnations of legitimate sex acts he envisages are physical union, consent and privacy). It seems that, based upon these incongruous conceptions of marriage and sexual union, he has castigated Christians for worrying endlessly about what gays and lesbians do in private. Maybe some have. But the nub of the issue is the essence of marriage, as a public institution and as an entity with certain properties. In other words: what is marriage in itself (if anything), and what are the (public, social) consequences of attempts to change it? De Brito, in trying to offer a critique of Christians’ views on the matter, seems to have parsed private sex acts and a legalised form of union that is anything but.

De Brito, I submit, appears to be viewing sex and marriage as separate entities, in that either can be practiced without reference to the other (at least consistently; of course, people are free to have sex without marrying one another, whilst couples who have been joined together by a minister or celebrant are free not to consummate that union). However, the question is whether marriage, in particular, can be defined apart from sex. De Brito may want to say that sex need not be a part of the definition of marriage. If the latter is simply the legalised expression of love and commitment between people, and can rest on nothing more than those bonds of affection (however expressed), what else is needed? Similarly, De Brito seems to think that a person’s sexual proclivities can be enjoyed apart from the encumbrances of marriage. Indeed, most people these days would probably agree. As a simple statement of reality, this is uncontroversial. But, to then imply that sexual activity is not an essential component of marriage (which one would likely have to do in such circumstances), forces one into philosophically ambiguous territory. Once again, we are dragged back to what seems to be the centre of this debate, even if it is unacknowledged by many of its participants: what the institution of marriage actually, essentially is.

Indeed, one might legitimately ask: what is the institution of marriage for, if it does not include, as part of any such conception, the importance of sexual activity? What distinguishes marriage from other types of relationship, if not the significance of sex? And if it is connected to sex, then questions regarding the nature of those sex acts, and whether any and every form of sexual expression can provide a basis for marriage, become exceedingly relevant. I have suggested that marriage is inescapably heterosexual, precisely because of the uniqueness of the sexual bond that consummates it. It would seem that marriage, at least from De Brito’s recent writings, is a kind of public commitment, where participants enjoy the privilege of being able to seal their pledges of love and devotion in a legal, recognized fashion. Sex, apparently, is irrelevant – at least in terms of how marriage is defined. Ironically, however, it’s partly because of the sexual nature of homosexual relationships that calls for their recognition have arisen in the first place. I doubt very much whether they would be seen as anything more than particularly intense kinds of friendship if they weren’t expressed, at least in part, through sexual intercourse. Absent this factor, the grounds for recognizing such relationships as in any way different from friendship, generally conceived, would be very weak indeed. De Brito wants to keep sex away from prying eyes and moralistic busy-bodies, but seems not to notice the inescapable connection – wherever one sits – between sexual intercourse and the calls for public validation. To be sure, I do not think that marriage can be founded upon any and all kinds of sexual unions. As I have suggested, heterosexual union alone provides the basis for marriage, precisely because no other type of coupling is inherently capable of producing the next members of a community or social group. I merely point out the layers of incongruous thinking that seem to characterise De Brito’s position: yearning for homosexual couples to be given the right to marry, and yet implying that the very element which has helped generate such claims in the first place – i.e. sexual activity (generally conceived) – has only an accidental relationship to the institution.

Of course, the issues go beyond relatively recent calls for “marriage equality” (a term to which I object, for reasons I shall not go into). More specifically, they go beyond whatever Sam De Brito has written on the subject. His views simply seem to be the outgrowth of a particular cultural narrative, which, in the course of securing freedom of sexual expression, decoupled sexual activity from marriage. The current conception of marriage – which appears to screen out any reference to the creation of a suitable environment for the raising and socialisation of children – owes a great deal to the thoroughgoing romanticisation of love, as well as the deep individualism that prevails in our society. Love is seen as a profusion of emotions and romantic feelings for [an]other person[s]. Thus, on the one hand, sex (of whatever kind) is regarded as a private activity between consenting adults, completely severed from the overarching structures of the marital institution. On the other hand, marriage itself is defined as a kind of contract into which private individuals enter – now seen as a particularly intense form of (codified) companionship, one might say. It could still be argued – superficially – that marriage is public, in the sense that wedding ceremonies are performed before others, reflective of the socio-legal recognition bestowed upon such a relationship. But having severed the substantive elements from the institution, new conceptions of marriage are forced to rest upon the private intentions of those parties entering into such a relationship.

Once more, we witness the attempted fusion of incongruous ideas – the triumph of fashionable thinking over a coherent point of view. In this case, it’s the transformation of marriage into a special form of companionship that most rankles, as proponents of SSM like De Brito seek to dilute the institution. In trying to widen the scope of marriage in order to provide recognition to homosexual couples, views such as De Brito’s end up relying upon a privatised notion of contractual union. Marriage isn’t conceived of as the formation of a unique type of relationship, within which future generations of people may be created and socialised. At best, the sexual and generative features of marriage are subordinate to the (private) feelings of romantic love that exist, and only exist, between the individuals concerned. In other words, marriage has no reality external to the bonds of affection that happen to be exist between individuals; it is reduced to the presence, or actuality, of those feelings. In the absence of the objective reality of sexual complementarity and its inherently generative properties, such unions must be content to rest upon the current emotional states of their participants.

This isn’t merely a question of abstract definitions. If it were, then no more would need to be said. But ideas, as we know, have consequences – and the social consequences of views like De Brito’s, if enshrined in law, may well be disastrous. Nor is it about SSM per se. Rather, the burning issue relates to the deeper ideological and philosophical currents giving rise to calls for “marriage equality” in the first place. What I am referring to are the implications of contemporary views on marriage, particularly as they concern its privatization and underlying emotionality. SSM may be a product of such currents, but its ascendancy would, I think, codify them as the legal basis upon which marriage is founded. Gone would be the understanding of marriage as a bond that is uniquely and inherently capable of issuing in children (who will influence their communities, for good or for ill). In its place would sit a version of the institution that rests, almost entirely, on the normalisation of emotional and physical companionship. Its ongoing legitimacy would only be guaranteed by the bonds of emotion, whilst the objective dimension of marriage would be lost – devolved to the personal feelings of the individuals involved. But how robust a foundation does this provide? Emotions are, as we have all observed, notoriously unstable; they ebb and flow, emerge and recede. One minute, a person might be overwhelmed by feelings of love for another; the next, he might regard that person with relative indifference. How stable are marriages likely to be if they are based upon little more than the feelings of the coupling individuals? Once all external (philosophical) bases for marriage are removed – which seems inescapable if the conjugal conception of marriage is rejected – what else is left but the internal emotional processes that people possess? It hardly needs to be said how destructive divorce can be for all involved – especially children. Trying to root marriages in the transience of one’s private emotions, however, is surely asking for trouble in years to come. Those early feelings of infatuation can subside (sometimes quickly), to be replaced by something more dour, and less romantic. Marriage is, of course, difficult work, and defining it according to one’s emotional state is to turn it into something that is essentially, inherently unstable. If marriage is little more than the outgrowth of affection between two (or more) people – which seems to be all that’s left once traditional conceptions are rejected – what should we say about the reality of that union if such affection disappears? What should we say if and when such unions collapse, causing heartache and anguish for all involved? And what should we say if the children of such failed unions find themselves burdened in life by the fraying of those native bonds of affection?

To take just one example: the increased incidence of drug and alcohol abuse amongst young people from broken families. The conservative “Heritage Foundation” has documented the rates of alcohol, cigarette and illicit drug abuse amongst such youths. In a series of articles that draw from a wide variety of research, the think-tank found that children and adolescents from intact families all had significantly lower rates of alcohol, cigarette, marijuana and cocaine use than did their peers from families that had been fragmented through divorce (see, for example, Patrick F. Fagan and Robert Rector, “The Effects of Divorce on America,” June 5, 2000). Research, therefore, strongly suggests that children from homes sundered by divorce are more likely to engage in them. And yet, trying to corral marriage in the aforementioned way, so that it is forced to rest upon the (transient) emotional states of the participating individuals, is simply welcoming that destruction at some time in the future – perhaps not for every individual, or even for every marital union, but certainly for some. If marriage is grounded in nothing more than such states, and is normalised accordingly, it does not bode well for the survival of many such relationships. What is more, one cannot ignore the baleful ripple effects that ensue if such marriages break-down. However, the confused, contradictory view of marriage that De Brito (and others like him) propounds undermines a bond that is, in many ways, essential to human flourishing. Unfortunately, however, it appears little is able to prevent this view from now being enshrined.