Countering Rodney Hide on same-sex "marriage" [UPDATE]

Yesterday, an opinion piece by Rodney Hide on same-sex marriage was published in the Herald on Sunday.  Mr Hide's article presumes that Parliament can create our reality and that in this recreated reality where marriage, a major social institution, is redefined by the whim of a few Parliamentarians will have with no deleterious effects to our way of life.  Most of his article is a history lesson on marriage and homosexuality in New Zealand, but curiously enough, the breakdown of the family, and the increasingly high cost of maintaining fatherless children through all these changes have not been included in Hide's piece - as if there is no connection.

Hide starts with very bold statements on who has the authority to determine marriage.

It's Parliament that decides who we can and can't marry. It's not decided by a committee of clergy. Or handed down by Holy Writ.

So, marriage is whatever Parliament says it is? 

Yet, marriage pre-dates the State, and thus comes to the State already defined.  While Parliament may "decide" what the State will and won't recognise as "marriage", and enforce penalties against those who break it's rules, Parliament can't change the nature of we call marriage.  For example, Parliament could say that all cats are dogs, and make everyone call their pet cat a dog and even register it, but we'd all know by looking at each animal just what they really are, and sooner or later reality would reassert itself.  So it is, and will be with marriage.

The regulation of marriage in New Zealand began with an ordinance in 1842 and the first Marriage Act was passed on the establishment of Parliament in 1854.

Married couples came to New Zealand before the first ordinance.  All the ordinance did was recognise what everyone already knew as marriage.

Our present Marriage Act dates from 1955. It sets out the rules for who can and can't marry. For example, the act prohibits a man marrying his former wife's grandmother or his daughter's son's wife. It's fortunate that Parliament thought of such possibilities and prohibited them.

Our present Marriage Act has already been gutted, so it's not the original 1955 act.  At some point, the consummation requirement to make a marriage valid was removed from the law, thus further reducing the State's understanding of what marriage actually is.  From a Catholic perspective, every uncontracepted marital act (and we all know what marital act means!) is a physical restatement of the marriage vows.  Every contracepted sexual act is a negation of the vows.

The Marriage Act 1955 doesn't say I can't marry a man or that a woman can't marry a woman.

It doesn't say you can't marry your dog either, I guess because the writers of the legislation back in 1955 did not think they were writing for morons.  Some things just should not need to be spelled out to those with a common morality and tradition.

But the courts have ruled that it wasn't Parliament's intent to enable same-sex marriage and that it's up to Parliament, not the courts, to declare whether same-sex marriages are lawful, not the courts. It's a fair call.

Ok, so some people have taken their desire to be "married" a person of the same sex to the courts and they said they didn't have the authority!

Back when the Marriage Act was enacted, homosexual activity was a crime carrying a maximum of life imprisonment. It's a safe bet that parliamentarians then weren't envisaging they were passing a law that would enable two men to apply for a marriage licence.

No kidding!

But even then the law had softened towards homosexuality.

Parliamentarians in the early days were hard core and set the penalty for homosexual activity as death. The death penalty for buggery was removed in 1867.

The 1893 New Zealand Criminal Code was still discouraging: "Everyone is liable to imprisonment with hard labour for life, and, according to his age, to be flogged or whipped, once, twice or thrice, who commits buggery either with a human being or with any other living creature".

The flogging for buggery was removed in 1941 and hard labour removed in 1954.

The 1961 Crimes Act reduced the maximum sentence for sodomy between consenting adult males to seven years' prison.

The big change was in 1986, when Parliament voted by a narrow margin to decriminalise homosexual activity. Consensual sex between men was no longer a crime.

Nearly thirty years ago homosexuality (actually, buggery) was decriminalised.  I wonder if those voting for decriminalization ever thought that by doing so, that men would be demanding to get married to each other in NZ in 2012?  If anyone had even brought that up as a possibility at the time, they would have been laughed at the way the media commentators are laughing at anyone that brings up polygamy coming next, now.  But there is a saying that you should never take down a fence if you don't know what it is for.  In 1986, Parliament took down a rather large fence with a sense of moral superiority over those that had put it up in years gone past, without really understanding why it was there in the first place, and those that knew, didn't care.

Consensual sex between women was never illegal in New Zealand. Early legislators thought such a thing impossible and didn't like to think about it and so never criminalised it.

Probably because women doing stuff to each other is not as invasive as buggery.

Once homosexual acts were decriminalised in 1986 the inability of homosexuals to marry was an obvious anomaly and inequality. Homosexuals can have consensual sex; they just can't get married to do so.

Men who experience same-sex attraction, and act on those attractions have always been able to marry, as long as they follow the same rules of marriage as everyone else.   And women, who as Hide says, were never criminalised for sexual activity between themselves weren't clamouring to be able to marry each other.  They were more likely to be condemning marriage as an outdated artifact of a repressive, patriarchal society that they would prefer to see destroyed rather than expanded to those of the same sex.

In 2005 Parliament fudged the issue by allowing civil unions.

A civil union is everything a marriage is - it just has a different name. The crucial difference is that same-sex couples can have a civil union.

The thinking at the time was that civil unions legislation might succeed in Parliament but allowing homosexuals to marry would not.

The civil union law passed by 65 votes to 55.

Since then, 2000 New Zealand couples have tied the knot through civil union. One in five were heterosexual couples; nearly half were female plus female; a third were male plus male; 83 civil unions have been dissolved.

Importantly, the sky has not fallen. Certainly civil unions haven't proved "destructive of the very foundations of society as we know it" as the critics feared. And now MP Louisa Wall's Marriage (Definition of Marriage) Amendment Bill has been drawn from the ballot.

The sky has not fallen, true.  But here we are, seven years after the passing of the Civil Unions Act debating changing  marriage so that it can be between two people of the same sex, something that wasn't supposed to happen because civil union was supposed to be enough.  Except, same-sex marriage will not be enough and men who want to be able to marry more than one woman at a time will be crying discrimination.

The way the ballot works is that Parliament sets aside limited time to consider legislation put up by MPs. Ordinarily it's only government ministers who can introduce legislation. Which members' bills get considered is determined by ballot.

That's how Louisa Wall's bill has arrived before Parliament. It was her call, and the luck of the draw.

Her bill is a simple one: it amends the Marriage Act to declare that "marriage means the union of two people, regardless of their sex, sexual orientation, or gender identity".

Louisa Wall's bill may be simple, but the effects won't be.  Her bill will change marriage from being a fundamental societal institution, which is most likely to give the children born to parents who have married the best chance of a good start in life, to something more airy, fairy, so that it can cater to adults who feel left out.  No more husband and wife, instead we'll have partner and partner.

The bill will be subject to a "conscience" or free vote. Each MP has a vote and it is up to each of them individually how they vote.

Conscience or free votes are allowed to stop caucuses ripping themselves apart trying to reach consensus on controversial issues that engender strong religious and moral concerns.

That makes the final vote hard to predict and there will be intense lobbying of individual MPs.

I would really love to see a referendum on how conscience votes should be treated.  They tend to be used when Parliament wants to tear down traditional moral values, and so far, I have not seen MP's consciences to be of a particularly high, moral standard worthy of such a weighty decisions.

I have enormous respect for conservative values and traditional ways of doing things. But here's the question for those pushing traditional values against same-sex marriage: what tradition do you want our Parliament to push back to? The death penalty? Flogging? Hard labour? Life imprisonment? Seven years' jail?

I'm not seeing any evidence of Hide's enormous respect for conservative values and traditional ways of doing things!  The respect seems to be higher for the right of Parliament to redefine what it wants to redefine.

My answer to Hide's question as to what traditions I want our Parliament to push back on, is traditions that work.  Marriage has been severely weakened by no-fault divorce, therefore  I would get rid of no-fault divorce and make the person who is at fault in the breakdown of a marriage walk away with nothing.  Basically, if you leave your spouse because you don't feel like working on your marriage any more, then you deserve to suffer for it.  Marriage vows should not be seen as temporary, and abandonment of a family should not be seen as no big deal.  If National really wants to save money on the family courts, they really ought to look at returning fault to divorce.

Our Parliament has a sad and sorry history in its treatment of two adults who just want to love and be with one another.

Our Parliament has a worse history in recent times in pandering to every liberal causes that rolls up and disregarding the effects on the children.  It's generally just all about the adults, or children independent from their parents, not about the intact family unit.  Changing marriage from a framework for children to just a romantic partnership turns children into unnecessary additions to marriage rather than being an intrinsic part of it.

Let's hope with Louisa Wall's bill that history is finally made just that: history.

Only by rejecting Louisa Wall's bill will history be made.  Parliament will have shown some backbone, which is sadly lacking right now.  However, in changing the law, the State will enact it's own demise over time, because it's only with strong families as it's backbone that states can survive.

Do I think the sky is falling?  No, because I believe in God and believe that good will be salvaged from evil, even if we are hurtling towards another dark age that to those of us in the midst of it, is very difficult to see if you don't know what you are looking for.  I do worry for my children, and for the children they will have, as the world they will grow up in will not be as easy as the one that I was raised in.

Related link: Rodney Hide: Wed for better, not worse

Previous Posts worth reading:
Same-sex marriage will devalue women in society
What will be undermined by same-sex marriage
Giant pratfall: Our culture slipping on a banana peel
Should Same-sex Couples be allowed to marry

UPDATE 7 August 2012, 10:30am:  Hi FaceBook people.  Can you please let me know who has linked to me from FaceBook!  Just leave a comment.  Thanks.