From letters sent to the government by business leaders, to the introduction of special rings, proponents of “marriage equality” seem to take another step in their campaign each week.
We are told that we have had a long debate about “marriage equality” in Australia and that Parliament should get on with legislating the inevitable. But has there actually been a debate about “marriage equality”? If there has, we must now all be clear on what we mean by “marriage” and be sure that redefining marriage in the Marriage Act will remove “discrimination” and achieve “marriage equality”.
I suggest that that is just not the case. There has been no such debate. I argue that while the Western tradition and Australian law have always given preference to one form of marriage – (marriage between one man and one woman entered into voluntarily for life)– doing so is not discriminatory. I also want to point to the fact that no thought has been given to the message that would be sent to the families and children of those minority groups in Australia with different understandings of marriage and whose marriages would remain unrecognised were the state to recognise marriages between two persons of the same sex under the Marriage Act.
Same-sex “marriage” proponents disingenously argue that we have had a genuine debate on redefining marriage and that we should immediately travel down the rainbow path.
Overlooked in the “debate” has been the fact that differing cultural and religious traditions in Australia have always had some different ideas about marriage. These include traditional marriage, the traditional cultural marriages of Australia’s Aboriginal peoples, marriages involving more than one man and one woman, marriages with a fixed term, arranged marriages with an element of compulsion, and relationships in which one or more of the parties are too young to marry under Australian law. Australia’s Aboriginal peoples have celebrated some of these forms of marriage for at least 40,000 years, and parts of Australia’s Islamic communities have done so for at least a hundred years.
Australia has only ever recognised traditional marriage, apart from the brief appearance of same-sex marriage in the Australian Capital Territory before the High Court of Australia found it to be unlawful. As a result people of the same sex who wish to marry each other and have their marriages recognised in the Marriage Act cannot do so.
One feature of same-sex marriage which is unique is its very brief history outside a few traditional societies. While marriages between two men appear to have occurred in Ancient Rome, they were rare, were not regarded favourably by contemporaries and were outlawed in 342 AD.
‘While marriages between two men appear to have occurred in Ancient Rome, they were rare, were not regarded favourably by contemporaries and were outlawed in 342 AD’. Photo: Chris McCormack
While known in some traditional African and Native American societies, marriage between two persons of the same sex appears to have first emerged in the West in 1970, when Hennepin County, Minnesota, refused to grant Jack Baker and James McConnell a marriage licence. Proponents of “marriage equality” seek recognition only of this most recent form of marriage. It is said that this step will remove discrimination.
While married men and women alone once benefited from various superannuation, taxation, social security and other financial benefits, this is no longer the case in Australia.
Today non-married relationships, at least between any two persons irrespective of their sex and sexual orientation, enjoy the same legal, social, civil and welfare benefits as married couples. A range of relationship registers also exist.
As a result, in the context of same-sex relationships, discrimination and equality arguments are confined to calls for state recognition of marriages between two persons of the same sex. Understanding what discrimination and equality means is therefore critical.
According to the High Court, discrimination is giving “different treatment … to persons or things by reference to considerations that are irrelevant to the object to be attained”. If that test is applied to state recognition of marriage, preferring one form of marriage over another is not necessarily discrimination. The question involves a consideration of the meaning of the term “marriage”, the objectives that the state seeks by regulating marriage, and whether the state has taken irrelevant considerations into account in so doing.
The term marriage refers to the uniting or fitting together of two complementary parts. Two parts that are the same cannot, by definition, marry.
These issues are also central to demands for “marriage equality”. As with “discrimination”, without context – without understanding the sense in which two persons, relationships, objects or ideas are relevantly the same or different – the term “equality” is meaningless. When that term is added to the term “marriage”, the foundational question that must first be answered is how the term “marriage” is being used. Without a clear understanding of the answer to this question, the issue of whether there are relevant differences in conceptions of marriage cannot be resolved and demands for “marriage equality” have no substantive content.
If there is no recognised meaning of the term “marriage” when equality is being discussed, it is not possible to identify the nature of the equality in “marriage” that is sought, nor whether such an equality would be possible, or to test whether (or how) redefining the term “marriage” in the Marriage Act is necessary to achieve “marriage equality”.
Some argue that a preference for traditional marriage is foisting a uniquely Christian or religious view of marriage on the country. That is ahistorical. Traditional marriage existed well before Christianity and it has existed in societies which are not and never have been Christian.
Traditional marriage has existed in societies which have never been Christian.
What interest has the state in marriage?
Focusing on marriage as a religious institution could also lead to the erroneous view that marriage is a purely personal or private matter of significance only to those persons entering the marital relationship and of no concern to the state. Were that the case it would be difficult to identify any legitimate basis for state involvement in marriage. But Australian law has always dealt with marriage and it was considered so important that it was included in the Constitution.As Justice Kenneth Jacobs observed in Russell v Russell in 1976: “The nurture of children by, and in recognised and ordered relationship with their parents, is thus integral to the concept of marriage as it has been developed as an institution.”
The creation of families and the raising of children are matters of public concern: this recognition of the centrality of procreation to marriage pre-dates Christianity and is assumed in most cultures and religions. It has long been recognised as forming part of the natural law.
Although some marry without the aim of bearing children, or believing that they unable to do so, the majority marry expecting to have at least one child and the majority of married couples do procreate. As Elizabeth Abbott observes in A History of Marriage: “Today as in the past, children – wanted and unwanted – have always been at the heart of marriage.”
An understanding of marriage as intimately connected with procreation and family has been called a “conjugal view”. It is a view of marriage in which the intimacy between the spouses is inextricably linked with their complementarity as physical, spiritual and emotional beings. Marriage, on this view, is not just friendship or sexual gratification – it is a complete giving by one spouse to the other which, on this view of marriage, is only possible for one man and one woman to give to each other. This is because sexual union between a man and a woman is potentially life giving in and of itself. Only one man and one woman can by their own sexual act conceive children who are biologically associated or related to each.
‘Marriage, on this view, is not just friendship or sexual gratification – it is a complete giving by one spouse to the other which, on this view of marriage, is only possible for one man and one woman to give to each other. Only one man and one woman can by their own sexual act conceive children who are biologically associated or related to each.’
As traditional marriage has a lengthy pedigree, it has been the subject of large-scale empirical studies for many years. These studies show that statistically traditional marriage benefits both the couples who marry and their children and supports the view that society has an interest in supporting this form of marriage. As a consequence, if the traditional or conjugal view is society’s objective in regulating marriage, it is not discriminatory for the state to consider formally traditional marriages only in the Marriage Act.
Some might argue that this conjugal view of marriage is obsolete. It might be said that the primary focus of marriage now is the happiness of the people getting married, respecting and reaffirming their personal autonomy, equality and choice. If that is so, by what criteria ought the state decide which marriages to recognise and which not to recognise? Why is the state involved in marriage at all? Why does the state care who people love or care for? On what basis ought the state limit marriage to two people?
These are critical questions that are not being asked let alone answered. If they are not answered and marriage is redefined as is sought at present, the motives for the state’s continuing involvement and its exclusion of other forms of marriage will be unclear. In that case those whose marriages remain unrecognised may have legitimate grounds to argue that the new definition of marriage – recognising the most recent form of marriage but leaving unrecognised marriage forms with deep religious, cultural and historical roots – treats them unequally and is discriminatory.
Tradition and empirical evidence support the view that the state continues to have an interest in regulating and supporting traditional marriage. This form of marriage has been shown to benefit the spouses and their children and to provide their children with the statistically best prospects of being cared for and reared in the best possible environment for producing healthy new citizens to ensure the survival of the state.
This remains a compelling interest which is best secured by the preservation of the present definition of marriage in the Marriage Act.
Professor Michael Quinlan is Dean of the School of Law at the University of Notre Dame Australia, Sydney campus. This article is an amended and abridged version of the paper “Marriage, Tradition, Multiculturalism and the Accommodation of Difference in Australia”, which was recently published in The University of Notre Dame Australia Law Review and subsequently in Newsweekly, May 6, 2017.
U.S. Target goes gender neutral; pays the price
by Chris McCormack
The pursuit of rainbow politics is proving to be a thorn in the side for Target stores in America. Since April 19, 2016, when the chain announced it would allow transgender customers and employees to use change rooms and bathrooms corresponding to their gender identity rather than to their biological sex, its share price has plummeted from around $US84 to $US55 today.
The announcement triggered several petitions by the American Family Association and others signed by 1.5 million people saying they would boycott Target until the mixed-sex change-room policy was reversed. Target has recently fired five top executives and has slashed chief executive Brian Cornell’s pay by a third.
Target’s decision to adopt transgender bathroom facilities could be described as a case of “virtue signalling” in response to North Carolina’s (NC) legislation weeks earlier that schools and public agencies retain gender-segregated bathrooms to prevent people from using a bathroom that didn’t correspond to their biological sex.
The response to the NC legislation from PayPal was to cancel plans to build a new operations centre in Charlotte, NC, the New York Governor banned its state employees from making non-essential work trips to North Carolina, and composer Stephen Schwartz announced that he would not allow his musicals to be performed in that state.
In the preceding months, citizens in South Dakota and Texas had voted down bills allowing transgenders to access a bathroom that differed from their biological sex. The Texas Supreme Court ordered a public vote following an appeal against the Houston City Council ordinance known as HERO that made it illegal to discriminate against anyone based on 15 different “protected characteristics”, including sexual orientation and gender identity. The public vote against transgender bathrooms in South Dakota was subsequently vetoed by Republican Governor Dennis Daugaard.
Prior to Target’s adoption of transgender restrooms, seven other U.S. states had been looking to retain men’s bathrooms for biological men and women’s bathrooms for biological women.
Despite the fall in revenue from boycotting consumers and over $US15 billion being wiped from the value of Target’s shares, Target maintained the bathroom policy had had no effect on its business. Company spokeswoman Erika Winkels said: “We have made it clear over time that we’ve seen no material impact to the business based on the bathroom policy. We don’t have anything new or different to share.”
A YouGov Brand Index survey in the week following the Target bathroom announcement showed a 4 per cent drop in the number of consumers who would consider purchasing from Target the next time they shopped at a department store. Considering Target is the second largest discount retailer in the United States, this would equate to a considerable fall in revenue.
In 2015, Target removed “boys” and “girls” signs from its toys and bedding departments and declared support for the “Equality Act”, which ensures that religious freedom defers to the LGBT agenda. In 2016, in response to the aforementioned North Carolina legislation, it turned half of its trademark red and white bullseye logo into a gay-pride rainbow.Transgender bathrooms is just one of a suite of measures Target has taken in the pursuit of the rainbow agenda. In 2012 it advertised a same-sex “wedding registry” and in August 2014 signed onto an amicus brief to redefine marriage (in the 7th Circuit). The same year Target released a #takepride line of clothing with LGBT messages such as “I love my dads”, the sales raising money for LGBT groups. The clothing line is still available in 2017.
One could surmise that, while the boycott cannot account for all of Target’s misfortunes, executives distracted by pursuing the rainbow agenda has meant they have failed to respond to the growth of online retailers and establish a viable market strategy.
The company has, nonetheless, yielded to the pressure of the boycott by spending $US20 million to install additional single-toilet bathrooms at all its stores at the request of the boycott leaders, although the leaders wanted the policy of mixed-sex bathrooms to end altogether.
In 2016, Target turned half of its trademark red and white bullseye logo into a gay-pride rainbow.
It is important to note that “Target Corp has no affiliation with Target Australia”. “There is no relationship between our companies,” U.S. Target spokesman Eric Hausman said.
However, given that Wesfarmers, the owner of Target Australia, signed a letter by corporates demanding the Federal Government legislate same-sex marriage in Australia, the decline of Target in America should serve as a salient lesson for Wesfarmers subsidiaries, including Target Australia, in how to avoid alienating customers.
The spread of transgender politics in the U.S. has gone so far that the Midwives Alliance of North America (MANA) core competencies document now uses gender-neutral language so as not to offend transgenders, particularly female-to-male persons who were pregnant or had children. MANA replaced pregnant woman with “birthing parent”, “pregnant people”, “pregnant person” and “pregnant individuals”.
In response to the language change, Woman-Centred Midwifery issued an open letter to MANA saying, “women are all but missing from the language” due to the “erasure” of the word “woman”.
“We know as midwives that biological sex occurs at the level of our DNA and the gametes we produce, and is immutable. By embracing the idea that any human other than those in a class called women carry offspring to term, give birth to them and nurse them, we are prioritising gender identity over biological reality …
“The very few gender-identified males that have given birth or accessed an abortion have only done so because they are female-bodied people, and that scientific fact cannot be erased.”
‘By embracing the idea that any human other than those in a class called women carry offspring to term, give birth to them and nurse them, we are prioritising gender identity over biological reality …’
We are now seeing the imposition of transgender “rights” in Australia too. The Victorian Equal Opportunity and Human Rights Commission in May 2017, launched guidelines for sporting organisations aimed at promoting transgender participation.
The guide states: “Trans and gender-diverse people should be able to use the toilets, change rooms and facilities appropriate to their identified gender … Not allowing a trans or gender-diverse person to do so may be distressing to them and potentially unlawful.”
Apart from the privacy and safety concerns of opposite sexes sharing change rooms, the inherent unfairness and strength disparity of men who identify as women competing against women in sport is mind boggling. The guide states: “Best practice here and overseas is that in non-elite level sport, people should be allowed to participate as their gender regardless of hormone or other medical treatments.”
In February 2017, U.S. President Donald Trump revoked former President Barack Obama’s dictate to public schools that they allow transgenders to have access to the bathroom of their choice, or face funding cuts. The bathroom wars will continue to be waged in the U.S. as Title IX (a 1972 law that prohibits sex discrimination in federally funded education) is decided by the courts, and here, where corporates intent on virtue signalling and activist groups wanting to remake society vigorously pursue the rainbow agenda.
This article first appeared in News Weekly, June 3, 2017.
 Leah Libresco, “Seven other states are considering restricting bathrooms for transgender people”, FiveThirtyEight, April 6, 2016.
 Ibid. Alexa Ura, “Bathroom fears flush Houston discrimination ordinance”, November 3, 2015.
 Greg Botelho and Wayne Drash, “South Dakota Governor vetoes transgender bathroom bill”, March 2, 2016.
 Leah Libresco, op cit.
 Ted Marzilli, “Target’s perception drops after transgender bathroom announcement”, YouGovBrandIndex, April 28, 2016.
 Alicia Powe, “Target doubles down on gay pride despite losses in bathroom war”, May 7, 2015.
 Heather Cichowski, “For the fifth year in a row, Target is celebrating Pride Month with its #TakePride collection”, May 12, 2017.
 Alicia Powe, op cit.
 Khadeeja Safdar, “How Target botched its response to the North Carolina bathroom law”, The Wall Street Journal, April 5, 2017. Chris Isidore, “Target’s $20 million answer to transgender bathroom boycott”, CNN Money, August 17, 2016. Thomas Lee, “Target has a twin in Australia, but they’re not related”, Star Tribune, August 24, 2013. Midwives Alliance Core Competencies document, Midwives Alliance of North America. Accessed May 7, 2017. “Open letter to MANA – sign on”, Women-Centered Midwifery. Accessed May 7, 2017. Ben Winsor, “Victoria releases guidelines for trans inclusivity in sport”, SBS, May 18, 2017. Ibid. Daniel Trotta, “Trump revokes Obama guidelines on transgender bathrooms”, Reuters, February 23, 2017.
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