What to Expect When No One's Expecting

Carolyn Moynihan
18 March 2013
Reproduced with Permission

New Zealand's Marriage Act 1955 does not define marriage; no-one then thought it necessary to define what was self-evident, anywhere. As the agitation for same-sex marriage grew, however, the United States federal government passed the Defence of Marriage Act in 1996 defining marriage as the legal union of one man and one woman, a move ratified by the majority of states.

In New Zealand that did not happen and marriage revisionists have seized the initiative to define marriage in a way that would accommodate same-sex couples. A bill for this purpose was introduced last August by Labour Party list MP Louisa Wall.

This piece of legislation, passed by two-thirds of MPs after its second reading debate last Wednesday, is meant to ensure that our marriage law is "not applied in a discriminatory manner."

The Marriage (Definition of Marriage) Amendment Bill "will make it clear that a marriage is a union of 2 people regardless of their sex, sexual orientation, or gender identity," says the preamble. "It will ensure that all people, regardless of their sex, sexual orientation, or gender identity will have the opportunity to marry if they so choose."

That sounds about as inclusive as you can get, doesn't it? But even this version of marriage law discriminates against certain classes of people. I cannot, for example, marry my sister. A schedule to the bill excludes me from marrying a sibling, a grandparent, parent, child, grandchild and a list of in-laws. This list of prohibited degrees of marriage is carried over from the Marriage Act 1955 -- purged, of course, of brother, sister, mother, father and all terms which imply that the human race is either male or female.

But why could I not, in the brave new era of marriage equality, marry my sister? What is the difference between us and two lesbians who present themselves to a marriage celebrant? Neither couple can produce a child, so the customary reason for "siblings" (brother and sister) not being able to marry or even have a sexual relationship -- a genetically impaired child -- is irrelevant.

Advocates of this law change insist that marriage is all about love, commitment and stability. I believe the relationship between me and my sister meets that description. We love each other and have lived together for over 20 years. We are committed to each other and care for each other, jointly own our home, have wills favouring each other. We have cared for dependent relatives and also, at one stage, an unrelated young girl. Neither of us has her own children but we are still capable of raising a child, should we feel so inclined.

What part of Ms Wall's definition of marriage as "a union of 2 people regardless of their sex, sexual orientation, or gender identity" does not fit us?

Perhaps it is the "union" bit. However, although it is supposed to define marriage, the term itself is undefined. What does marital union mean in an era of same-sex love? Does it have to involve sexual attraction? It is necessary to say at this point that my sister and I have no sexual interest in each other. It is conceivable that sisters might -- as a student told an attentive select committee at a hearing on the bill, "all forms of attraction exist" -- but we do not. Is our sisterly love therefore less worthy of public recognition in the form of a marriage certificate than the love of two lesbians who are romantically involved?

An affirmative answer to this question has to explain what is the public interest in what two women who are not blood relations do together in bed. Remember, my sister and I have a loving, committed, stable relationship in which we share our lives and goods -- equal, I am sure, in those respects to any settled lesbian couple.

To repeat: what is the public interest in the romantic desire and sexual activity of two women? I suggest there is none.

Marriage is associated with romance because romance is the kind of desire that aims at bodily union, with its potential to beget children. Partners of the same sex cannot achieve such a union no matter what they do. Strictly speaking, therefore, they cannot achieve sexual union at all. They can have sexual encounters in which they give each other pleasure and, no doubt, produce a feeling of being more united, but this is quite a different thing from the organic union that a man and a woman achieve in sexual intercourse -- particularly when it results in the conception of a new human being.

It is that organic, conjugal union that defines marriage, and its potential to generate children that creates the state interest in marriage. The state needs marriages to produce new citizens and to ensure that they grow up into decent, law-abiding citizens. It is all too evident in New Zealand's poverty and abuse data how disastrous it is for children and society when marriage culture breaks down.

If the good of existing children were the main issue in recognising same-sex relationships there might be reason to revise existing laws regarding adoption and civil unions, but it is not. We have been told repeatedly that this bill is about the good of same-sex couples, with or without children, about their right to have their love equally recognised by New Zealand society.

At best, this is a purely sentimental claim. It is not rational. There is no more reason for the state to bless the romantic relationships of couples who cannot unite sexually than there is for it to bless the affection of two sisters. In a sane world marriage law would discriminate against both.