Monday, 23 November 2009

Independent: This thing called marriage: why are we bothering?

23.11.9? by Joseph Carmel Chetcuti

The legal recognition of same-sex marriage has become the clarion call for many of today’s gay and lesbian activists. Same-sex marriage, it is argued, is a basic human right that should not be the exclusive prerogative of heterosexuals. Gay men and lesbians, after all, deserve to be treated equally before the law. I agree.

Opponents of the legal recognition of same-sex marriage, on the other hand, continue to vigorously oppose the legal recognition of same-sex marriages. In 2004, in an effort to stall or put an end to possible future judicial recognition of same-sex marriages, the Australian federal government amended that country’s Marriage Act (1961) to define marriage as the union of a man and a woman voluntarily entered into for life, which union is to the exclusion of all others. An express provision in the Australian Constitution grants the federal government and only the federal government the authority to pass laws on marriage. To put it bluntly, state, local and territory governments have no business in the business of marriage. Arguably, they can legislate to recognise same sex (civil) unions and registered partnerships.

In the United states, the Defence of Marriage Act 1996 defined marriage as the legal union of a man and a woman as husband and wife, and a spouse as a husband or wife of the opposite sex. But differently from Australia, the US Constitution has no expression provision surrounding marriage that grants that country’s federal government exclusive power over marriage. Effectively, the Defence of Marriage Act (DOMA) provided that no state shall be required to give effect to a law of any other state with respect to a same-sex marriage but it did not preclude any state (or other political jurisdiction) from deciding for itself whether it wants to grant legal status to same-sex “marriage”.

In Malta, the Roman Catholic Church enjoys a privileged status. That privileged position is not afforded to any other institution or faith. Without doubt, it is the country’s most powerful lobby. Any legal recognition of same-sex marriage radically undermines the Church’s teachings on sex and sexuality and makes further inroads into the power it still enjoys over the institution of marriage. Take Section 21 of the country’s Marriage Act 1975, which provides that a marriage celebrated in Malta in accordance with the norms and formalities established by Canon Law shall not only be recognised and have the same civil effects as a marriage celebrated in accordance with the norms and formalities of the Marriage Act, but also so recognised as from the moment of its celebration. Sub-Section 23 (1) of the same Act goes on to state that an executive decision of a Catholic tribunal declaring the nullity of a Catholic marriage shall, where one of the parties is domiciled in, or a citizen of, Malta, upon its registration, have effect as if it were a decision by a court. Amazingly, Sub-Section 23 (2) bars the civil courts from re-examining the decision on the grounds that had been considered by the Catholic tribunal.

What is marriage?

Marriage means different things to different people and is entered into for a range of reasons. To some it is a sacrament, a convenient way of putting a smokescreen around the sexual act. It is also a (sexual) contract, with an offer and acceptance and a paraphernalia of duties, rights and responsibilities. To others, it is a public declaration and celebration of their love for each other and an opportunity to celebrate the event with their families and friends. Of course should your child happen to marry into a well-connected family, why not stick it up others you do not like by including a description of the nuptials in one of the leading papers, listing the titles of the bridesmaid and the best men! And you must also say where the reception was held and where the happy couple are honeymooning! Others marry because their girlfriends fall pregnant to the great relief of some parents, including I understand one prominent Maltese politician who is a great defender of the faith and the family! Some fall into marriage simply because they are unimaginative and think they have no other choice. For some marriage provides an ideal opportunity to experience what hell is like before meeting their maker.

In the past married women and children were deemed the property of the husband. Not that long ago, in common law the personal possessions of a married woman were considered to be the property of her husband who was entitled to use them as he pleased. As her husband’s property, a woman could not claim that her husband had raped her. Today’s marriage is supposedly a union between equals but some feminists still think of marriage as a patriarchal institution.

What we thought of marriage in the 70s

Most gay and lesbian activists of the 1970s would have been sickened at the prospect of same-sex marriages and even horrified at the knowledge of gay men and lesbians wanting to marry. We belonged to and felt right in the counter-culture. We took immense pride in our norms and values that ran counter to those of mainstream society. For if we thought religion was the opium of the masses, marriage struck us as a restrictive, diabolical and unproductive (except for the children) institution. After all, that was the Age of Aquarius, with hippy commune communities springing up not only in the country but also in the cities, and straight men refusing to declare their sexuality in support of their gay brothers and sisters. Such views were especially prevalent among gay liberationists, many of whom were socialist (there were many varieties of this, and frequent squabbles not unlike those among Christians) and only too happy to remind us of what Frederick Engels had written in The Origin of the Family, Private Property and the state.

But there were other reasons why we opposed marriage. Many gay men and lesbians had been victims of domestic violence. They had been bashed by their parents and siblings because of their sexuality. They had been thrown out of their homes, disinherited and left with no choice but to live on the streets, often earning their living from hustling and peddling drugs. Some had been forced to marry and have children. Family courts had refused custody and access to homosexual parents, and society often treated them as traitors. The Church blamed them for breaking up the family and helping destroy the sacred institution of marriage, which Christ apparently transformed into a sacrament after he turned water into wine. One can only speculate whether any of the drunken guests were subsequently arraigned for riding their camels while drunk?

What it means today to some gay men and lesbians

So why do today’s gay men and lesbians want to marry? Because some have had different and healthier family experiences. And because the gay movement is now more preoccupied with securing civil rights and less with confronting society! But marriage is a different institution today to what it was 30 or 40 years ago. It is seen by many, heterosexuals included, as fundamentally a civil institution. In the past few decades, the Church has been sidelined and its influence has greatly diminished. High-ranking prelates are ridiculed publicly and priests are looked upon with suspicion.

Marriage also provides gay men and lesbians with an opportunity to reinforce the partition between state and Church. It promotes equality, provides a legal safety net and ushers in a range of rights that only that institution guarantees. Marriage also provides some protection to the children of same-sex couples however they have come to be born. For some, it is also a time for partying, wasting money and honeymooning in the south of France (or Filfla if you can’t afford it). Significantly, it is an opportunity to stick it up those heterosexuals who think they own marriage!

Dr Chetcuti is a barrister and solicitor in the state of Victoria (Australia).

He is also the author of Il-Ktieb Roza: Dnub, Dizordni u Delitt? and Queer Mediterranean Memories: Penetrating the Secret History and Silence of Gay Men and Lesbian Disguise in the Maltese Archipelago


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