An earlier version of this paper was presented at the Sydney Social Justice Network’s inaugural PhD conference in November 2013.

Same-sex marriage: The road to social justice?

Louise Richardson-Self, The University of Sydney

The goal of marriage equality should be the social and legal non-discrimination of lesbian, gay, bisexual and transgender (LGBT) people. But how likely is same-sex marriage to lead to social justice? This article argues that, while same-sex marriage is justified, social justice is best served when the normative importance of marriage is undercut.

A common argument in favour of same-sex marriage is that, without reform, LGBT people are confined to the status of second class citizens. Take this statement from Australian Marriage Equality (2013; emphasis added), one of Australia’s leading same-sex marriage advocacy organisations:

Consider all the other groups in society, along with people of colour and same-sex attracted people, who at one time or another have been denied the right to marry the partner of their choice: women, people from differing faiths, people with disabilities … The gradual acceptance that members of these groups are fully adult, fully citizens and fully human, has been accompanied by an acceptance of their right to marry whomever they wished.

Opponents claim that marriage requires one man and one woman by definition.

What it means to be a citizen (and thus, to be entitled to equal rights) is closely bound with the Western cultural conception of ‘being fit for marriage’. There is a political myth that marriage and the nuclear family play ‘a uniquely foundational role in sustaining civil society’ (Calhoun 2000, p. 123). In fact, marriage and the nuclear family are imagined as ‘the bedrock on which social and political life is built’ (Calhoun 2000, p. 123).

Same-sex marriage advocates will also usually attempt to undermine the necessary heterosexuality of marriage and ‘requirement’ of biological procreation, but do not challenge the normative conception or importance of this institution. Normative marriage is characterised by monogamy, long-term commitment, sexual fidelity, companionship, economic support and so on. Another argument from AME illustrates this point:

Allowing same-sex couples to be included in such a universal and valued institution as marriage will provide them and their families with real social and cultural benefits … [Married same-sex couples] felt marriage had increased their commitment and their sense of responsibility, and had generally strengthened their relationships … There is also a growing body of research showing that married partners, including same-sex married partners, are, on average, healthier, happier and longer lived, than their cohabiting peers, or singles (2013).

In short, marriage is good, and it is better to be married.

On the other hand, opponents claim that marriage requires one man and one woman by definition, since the possibility of natural procreation is a necessary component of the marital union. Consider Australian Christian Lobby Managing Director Lyle Shelton’s (2013) views on the matter: ‘Marriage between a man and a woman is good for society and beneficial for governments to uphold in legislation. It’s about providing a future for the next generation where they can be raised by their biological parents, wherever possible’.

It is therefore clear that the popular same-sex marriage debate concerns which aspects of the marital relationship have intrinsic worth and who can uphold these aspects, not whether marriage has intrinsic worth. The implicit idea behind all this is that, if marriage is intrinsically valuable, and same-sex couples qualify for marriage, then same-sex relationships must be intrinsically valuable, too. If same-sex relationships are seen as intrinsically valuable, then the thought is that LGBT people will come to face less social discrimination.

As stated above, what is at stake in the same-sex marriage debate is the non-discrimination of LGBT people, and it is clear that non-discrimination depends not only upon LGBT people’s legal status, but how they are socially perceived as well. However, LGBT people should be respected and accepted regardless of their (real or perceived) sameness and/or difference to normative heterosexuals. In other words, same-sex relationships should be understood as valuable in and of themselves, not valuable insofar as they resemble normative marriage.

If one accepts this claim, then we have reason to ask whether the arguments circulated in favour of same-sex marriage forcefully challenge the social norms which contribute to LGBT discrimination. I’m concerned that retaining the hierarchically privileged status of marriage and opening it up to LGBT people is unlikely to be the best way to combat discrimination. Non-normative LGBT people and non-normative heterosexuals may be more likely to face discrimination if marriage becomes a homosexual norm. It is therefore worthwhile to explore some alternatives. Could LGBT people be perceived as moral equals and treated as such without having to endorse a normative commitment to the hierarchical worth of marriage?

UNDERSTANDING LGBT DISCRIMINATION

The defining identity trait of the homosexual, according to our collective normative perception, is the sex that they have. Much of LGBT people’s inability to present themselves positively in the public sphere stems from this frequent reduction of homosexual identity to a set of sex acts—sex acts that have been deemed immoral, wrong or inappropriate, in opposition to heteronormative sexual practices.

Homosexuality needs to come to be understood as a complex cultural phenomenon.

A heterosexual identity, alternatively, is much more complex within our collective normative perception. Heterosexuality, unlike homosexuality, is an assumed way of being oriented in the social world: it is taken for granted in social interactions, advertising, film and television representations, modes of flirting, dating and so forth.

Heterosexuality, but particularly normative heterosexuality, is publicly promoted and naturalised in a way that homosexuality is not. Homosexuality, too, needs to come to be understood as a complex cultural phenomenon. LGBT people should be perceived as more than the sum of their sex acts and should be treated with dignity and respect. But how is this to happen?

One may simply argue that the state should be neutral with respect to individual conceptions of the good life. This would be to argue that it is always a bad thing for the state to promote any normative ideal of intimate relations. The state should create multiple institutions regulating various forms of intimacies, or perhaps replace such institutions with a system of contracts for intimate unions.

However, some have been sceptical of such an approach. Consider the following argument:

Defending same-sex marriage on grounds of state neutrality with respect to individuals’ voluntary associations requires only that same-sex marriages be legally permitted regardless of how they are morally viewed. Genuine equality for gays and lesbians, however, requires more than merely coming to be tolerated. It requires that we, as a culture, give up the belief that gays and lesbians are unfit to participate in normatively ideal forms of marriage, parenting, and family (Calhoun 2000, p. 130 – emphasis added).

In other words, denying the intrinsic worth of marriage will not change heterosexual people’s negative opinions about LGBT people. If the moral perception of LGBT people is to change—that is, if we, as a culture, are to come to understand LGBT people as essentially moral beings (inclusive of, but not limited to their sexual preferences)—then we must give up our belief that they are unfit to participate in normatively ideal unions. The claim is that, instead of promoting a plurality of possible intimacies, we ought to re-endorse marriage as morally good and normatively ideal.

The above argument would essentially conclude that the strategies already employed in Australia for justifying same-sex marriage are ideal for reducing LGBT discrimination. Normative heterosexuality is deemed to be morally good. Same-sex couples are argued to be just like heterosexual couples with respect to marriage. On these grounds, same-sex love is logically morally acceptable.

Importantly, I agree that genuine equality requires more than tolerance, and I also agree that LGBT people should be able to marry. However, I disagree that maintaining marriage’s privileged place in our shared normative consciousness will facilitate non-discrimination. This is because acceptance is predicated on pigeonholing people into normative intimate lifestyles in order to gain social acceptance. This does not amount to true equality either—it is just tolerance under another guise.

It is certainly true that achieving non-discrimination requires dealing with LGBT people’s cultural image and not only with law reform. Norms have affective dimensions that can only be countered by bringing about a change in the way LGBT people are imagined and felt about. Yet, if the current popular arguments for same-sex marriage are antithetical to the goal of non-discrimination, and so too is the demand for state neutrality, where do we go from here?

SHIFTING THE NORMS SURROUNDING HOMOSEXUALITY AND MARRIAGE

Is it possible to shift the norms surrounding homosexuality and marriage? I believe so. Time, resonance, and critique are crucial elements that can lead to emancipatory changes in our dominant shared normative conceptions. Time is a fairly obvious requirement. No successful normative change is immediate, it is always gradual. Meanings are constructed and reconstructed across time with the promotion of new narratives.

New narratives must resonate with aspects of dominantly held norms—but not too much.

New narratives must resonate with aspects of dominantly held norms, though. In other words, an alternative narrative must be able to latch onto some parts of the dominant meaning-generating story that is already endorsed. For example, an incredibly resonant aspect of typical arguments in favour of same-sex marriage is the rhetoric of love: ‘All love is equal’. From this, LGBT people can demonstrate that they have something in common with heterosexuals.

However, a new narrative can be too resonant with dominant norms, resulting in little significant change for particular groups. Common arguments for same-sex marriage (either implicitly or explicitly) endorse heteronormative values, with activists arguing that the traditional values of marriage will be strengthened thanks to marriage equality (Croome 2010, pp. 26–30). This means that non-normative LGBT people and non-normative heterosexuals are still likely to face unjustifiable social discrimination because they do not match up to those norms. Thus, because of the likelihood of ongoing social discrimination, overly resonant arguments ought to be challenged.

Critique and collective resistance can challenge mainstream norms by reading them against the grain and pushing back against the heteronormative logic that supports them. Thus, while it is necessary to maintain some amount of resonance, it is also important to explicitly critique which normative understandings have typically been able to shift the way citizens conceive of their political communities, and who has been able to influenced them. One must always seek to question the sources of dominant norms.

This is my proposal: First, the pre-political status and intrinsic worth of marriage should be denied. Second, the argument should be circulated that many intimate associations (including same-sex associations) are instrumentally valuable to society, and as such they are worthwhile regulating. This second claim alters marriage’s status from pre-political institution to state-defined contract. So far, this is in line with the original state-neutrality proposal.

The next step would be horizontally valuing multiple intimate relationships. Horizontal valuation takes place when non-normative intimacies are actively promoted. This involves the circulation of mediated representations of both fictional and real world examples, via advertising, documentaries, novels or any other medium. It would also involve support for and promotion of existing legal possibilities for alternative intimacies and the creation of further institutions. These relationships could include monogamous but less binding intimacies, polyamorous sexual relationships, various non-sexual relationships of care including two or more adults and so forth.

This is a pluralisation strategy. My aim here is not to dictate what obligations and benefits should be attached to any particular institution. The point is simply that the availability of alternative institutions needs to be emphasised and endorsed, and that such institutions ought to be created and introduced to this end.

Pluralisation is resonant insofar as it represents the multiple forms of relationships and family units which actually exist in our present society. Some diverse forms of family that have emerged in recent decades include (but are not limited to) interracial families, single-parent families, childless couples, polyamorous partners, non-sexual relationships of care, adoptive parents, lesbian and gay childless couples, lesbian and gay couples with children, and so on. Instead of finding resonance in a notion of sameness, where the standard of measure has already been set by the heterosexual mainstream, I encourage people to celebrate the differences among plural intimacies, and to endorse the notion that intimacy is valuable regardless of its relative sameness or difference to normative marriage.

Always seek to question the sources of dominant norms.

Australia already legally recognises some varieties of intimacies. It recognises de facto relationships, where partners live together on a genuine domestic basis. De facto couples have the same rights as married couples under the Family Law Act 1975 (Cwlth) in relation to the distribution of property; however, there is usually no right to spousal maintenance, and the relationship is easily dissolved. Some Australian States also offer civil unions. The entitlements and obligations of couples who choose to enter a civil union vary from state to state. Some allow official recognition to take place during a ceremony, with a certificate bestowed on them by a celebrant. Others do not.

Tasmania allows for the recognition of even more diverse intimacies. The Relationships Act 2003 (Tas) allows for legal recognition of both ‘significant relationships’ and ‘caring relationships’. Significant relationships are sexually intimate relationships akin to marriage, but less legally binding—this is Tasmania’s version of a civil union. The caring relationship is a relationship where two people, whether related or not by family, and of any sex, who are not in a relationship as a couple but do provide domestic support and personal care to each other, can be legally recognised (Relationships Tasmania 2012). This might be, for example, two single mothers who are not involved in a sexual relationship, but have decided to throw in their lot together in order to alleviate financial burdens and burdens of child care. Or this may be two sisters who wish to have legal documentation proving that they are each other’s next of kin, so that other family members may not overrule their wishes in the case of a medical emergency.

The Federal Government recognises relationships registered in Tasmania in the areas of ‘taxation, medical benefits, family law, and workplace entitlements’ (Tasmanian Department of Justice 2013). The Tasmanian Government also recognises these relationships with regard to ‘wills, property division, guardianship, health care, statutory compensation schemes, state taxes, fees and licenses, and state superannuation and pension schemes’. Moreover, the existence of a deed provides legal proof of the relationship.

An emphasis on actually existing plural intimacies invites us to think about how norms can press one model of intimacy upon people, and reflect upon whether this norm of intimacy is desirable. It also pushes back against dominant norms, challenging the hetero-masculinist model by engaging in and demanding recognition for other models of intimate and familial relationships. Highlighting this variety of intimacies may mean alternative families can come to be deemed valuable in and of themselves. They would not be understood as those who had failed to find someone with whom to enter a heterosexual union, nor as people who had failed to maintain a heterosexual union.

What ultimately gets put into circulation via this type of argument is the conception that, although marriage may be a significant institution to which LGBT people should rightly have access as a matter of simple equality, we would do better—if our goal is non-discrimination for all LGBT people, and even for non-normative heterosexuals—to genuinely promote and celebrate multiple forms of intimate, caring and familial relationships.

REFERENCES

Australian Christian Lobby 2013, ACL welcomes high court decision on marriage, Media Release [Online], Available: http://www.acl.org.au/2013/12/mr-acl-welcomes-high-court-decision-on-marriage/ [2014, Apr 6].

Australian Marriage Equality 2013, 12 reasons why marriage equality matters [Online], Available: http://www.australianmarriageequality.com/wp/12-reasons-why-marriage-equality-matters/ [2013, Jul 2].

Calhoun, C. 2000, Feminism, the Family, and the Politics of the Closet: Lesbian and Gay Displacement, Oxford University Press, Oxford.

Croome, R. 2010, Why vs Why: Gay Marriage. Yes, Pantera Press, New South Wales.

Gatens, M. 2004, ‘Can human rights accommodate women’s rights? Towards an embodied account of social norms, social meaning, and cultural changes’, Contemporary Political Theory, vol. 3, no. 3, pp. 275–299.

Relationships Tasmania 2012, Caring couples [Online], Available: http://www.relationshipstasmania.com/caringcouples.html [2013, Jul 1].

Tasmanian Department of Justice 2013, Births, Deaths and Marriages: Benefits/Entitlements [Online], Available: http://www.justice.tas.gov.au/bdm/relationships/benefitsentitlements [2014, Apr 6].

Louise Richardson-Self recently qualified for the award of Doctor of Philosophy at The University of Sydney, where she works as a casual lecturer and tutor. Her research interests include contemporary feminist thought, LGBT/Queer Studies, intersectionality, French feminisms, practical ethics, moral philosophy, contemporary political philosophy, modern political philosophy, and legal philosophy.