Seven common myths in the marriage equality debate

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I have long been involved in one of the key civil rights causes of our day: the struggle for marriage equality. As a lawyer in Canada in the past, I was involved in same-sex marriage litigation in that country. That was early in the last decade, around 2002. Ever since, I have written about the issue and engaged in debate about it. I now feel I've heard it all – all the arguments against marriage equality. And I feel very confident at this point saying that none of the arguments against marriage equality holds up in the light of logic.

Myth 1: Definitions like "marriage" don't change. Actually, they do. Societies change, and in turn social definitions change too. Social definitions are not the same as scientific definitions, which either don't change (eg, 'triangle') or change infrequently (eg, 'planet'). Social definitions are constantly being updated. For example, the definition of voter – our most important marker of citizenship – only recently came to include Indigenous voters (1963) and 18-year-olds (1973). Previously, you needed to be non-Indigenous and 21. In earlier decades you also needed to be male and to have substantial property holdings. Things change.

Myth 2: Marriage has always been between a man and a woman. Actually the current Australian law on this dates from 2004. While Western marriage has tended in recent decades and centuries to be a largely heterosexual institution, Western societies have also held changing attitudes toward marriage in centuries past. Even the Catholic Church once sanctified certain forms of same-sex relationships.

In any case, the fact that something is (or isn't) historically unchanged is neither here nor there in a moral sense. As Judge Posner in the US said at the Court of Appeals, '[t]radition per se … cannot be a lawful ground for discrimination – regardless of the age of the tradition'. If tradition mattered more than anything else, then of course we would need to hold on to some other Western traditions (eg, slavery, and capital punishment for property theft). Things change, as they should.

Myth 3: Children need opposite-sex parents to thrive. Simply untrue and debunked in countless studies. See here. In a society where we must live together in mutual respect, we cannot base public policy on intuition and anecdote. We must instead look at what actual evidence is available. The fact that you grew up with a mum and dad and turned out OK does not count as adequate evidence.

Myth 4: Keeping the traditional definition of marriage is harmless. Again, look at the evidence. One of the most important arguments for legally recognising same-sex marriage is that the current definition excludes a segment of society from being socially viewed as equal. That is, legal exclusion expresses a society's refusal to express that everyone has equal status. Thus it is no surprise that young people who are "different" (eg, by being lesbian, gay, bisexual, transgendered, intersex or queer) from the rest of society suffer far higher rates of depression and suicide. Specifically, the studies show that it is the absence of marriage equality that reduces mental health.

Myth 5: You can have equality without calling it same-sex "marriage". The argument here is that a term like "civil union" is just as good, since it secures many of the same tangible benefits. For example, in a state that recognises same-sex civil unions, partners have the right to be contacted as next of kin by hospitals when something goes wrong. These benefits are undoubtedly useful. But as we have long known, at least since the days of "separate but equal" schools, separateness amounts to symbolic inequality. The point of including everyone within the same terminology ("marriage") is to express an equality of status.

Myth 6: Marriage equality affects religious freedom. No, it doesn't. It is clear that any marriage equality law passed in Australia will exempt religious celebrants from having to officiate same-sex weddings. A related myth is that legalising same-sex marriage affects the freedom of speech of those who oppose it on religious grounds. This is also incorrect. The fact that a law is on the books does not mean you are barred from disagreeing with it, any more than you are barred from disagreeing with the current law. The new law would affect only who can get married.

Myth 7: God opposes marriage equality. There are many fallacies in this approach. But let us focus on just one: that even if I somehow feel with certainty that I know what God intends, in a Western liberal democracy it is inappropriate for me to impose my private belief publicly. While my faith can inform my private choices, it should never be used to coerce other people's private choices. I must not insist that others follow rules based on my own beliefs, unless those beliefs can be publicly raised and debated as matters of arguable logic or fact. In our democracy, this is a fundamental principle. If marriage equality becomes a legal reality, this will allow everyone to make choices based on their personal convictions. Opposite-sex couples will be able to marry members of the opposite sex, and same-sex couples will be able to marry members of the same sex. That is how it should be.

This article was first published in The Age on Sunday, 3 September 2017.

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team