Castan Centre for Human Rights Law

Same Same Marriage Forum - 26 May 2005

Paper delivered by Professor Raimond Gaita
26 May 2005

'Same Sex Marriage - A Philosophical Perspective'

When Professor Joseph invited me to join this panel, my first impulse was to decline. I had promised my wife and myself that I would severely reduce my public commitments. When I thought about her invitation, two things came together in my mind and I accepted.

First, I remembered a conversation a year or so ago in London between myself and two close friends. They were Peter Steele, a Jesuit priest, poet, and professor of English at the University of Melbourne, and Nick Drake, a poet, novelist, screenwriter and a passionate gay. Peter and I expressed sympathy for Rowan Williamson, also a fine poet, who had the misfortune to be appointed Archbishop of Canterbury when the Anglican Church threatened to split over the ordination of a handful of gay priests. The indignation of the ultra-conservatives in the Church was further inflamed by the fact that the newly ordained archbishop supported gay priests. Hence the sympathy Peter and I expressed for Williamson’s ironic predicament. We agreed, nonetheless, that it was understandable that in order to prevent a split in the Church Williamson would at least play down his support for gay clergy.

Nick said not a word, but I caught his eyes. In their pained expression I read these questions: Is it really so obvious that one shouldn’t be prepared to split the church over this matter? Wouldn’t it be different if racism were the issue? Nicks poems celebrating gay love and death had moved me deeply, as had his understanding of heterosexual love in some of its most passionate and destructive forms, understanding that he showed in his screenplay adapting my book Romulus, My Father for the cinema. Responding to those pained eyes, I realised how little I had understood. In part, therefore, this talk is at act of atonement.

The second thing that came to mind was the memory of my first meeting with Ron Castan. He wanted to discuss an essay I had written on the philosophical underpinnings and implications of the High Courts decision on Mabo. In that essay I elaborated, amongst other things, the conception of racism that I believe underpinned (implicitly, at least) Justice Brennan's decision.  I’m pleased and honoured to speak at a centre for human rights that is named after him.

Nicks unspoken question, how different is opposition to gay clergy or to gay marriage from racism? is my topic. To answer it, I'll sketch a kind a conceptual geography; I’ll map a conceptual landscape that I hope will enable us to locate more precisely where we stand in arguments over same sex marriage.

Racism of a certain kind - not all kinds, for racism is a complex phenomenon, but the kind usually connected with skin colour – almost always involves as an incapacity on the part of racists to see that anything could go deep in the lives of their victims. For racists of that kind it is literally unintelligible that parenthood or sexuality, for example, could mean to 'them' (the victims of their racial denigration) what it does to 'us' - unintelligible in the same sense in which it is unintelligible that we could see in a face that looked to us like the Black and White Minstrel Show's caricature of an Afro-American face, for example, the full range and depth human emotion. We could not cast someone whose faced looked to us like that to play Othello. Not even God could see in a face that looked like that the expressive possibilities that are necessary to reveal the magnificence and the misery of Othello.

Legal justifications of colonial settlement in many parts of the world were often infected by racism of that kind. Consistent in theory with the recognition of the full humanity of those whose lands were colonized, in practice its application was often the expression of a racist denigration of the "capacities of some categories of indigenous inhabitants to have any rights or interest in land" (to quote Justice Brennan). That denigration expressed the attitude that since nothing could go deep with  ’them’, their forcible removal from their lands could not do so (could not count as dispossession, with all the moral and spiritual connotations that word carries in ordinary speech) and therefore could not constitute a grievous wrong against them. More than preceding judgments in other lands - America or Canada, for example - Mabo made clear, I think, why in Australia the rejection of terra nullius and the property laws infected by the racists assumptions which often governed its application, was nothing less than the recognition of the full humanity of the indigenous peoples who had been dispossessed. If one sees that, then one will also see, I think, why the acknowledgment of the full humanity of a people or a group is an act of justice that is not adequately conceived, as justice so often is, as a species fairness. “See me fully as your fellow human being, acknowledge fully my humanity” - that is a demand for justice, but one would have to be morally tone deaf to take it as a plea for fair treatment, although, of course, fear treatment will often be its necessary outcome.

Just as many of the settlers could not imagine that the aborigines could have relations of any depth to the land, so many of their descendants could not imagine that they had relations of any depth to their children. The first form of blindness enabled whites to take their lands from them with a relatively clear conscience. The second enabled them to take their children for reasons that were various, but which sometimes served the intention of eliminating them as a people.

James Isdell was Protector of Aborigines in Western Australia in the 1930’. There he administered a program in which children of mixed blood were taken (usually forcibly) from their Aboriginal mothers and placed in circumstances in which (it was hoped) most of them would have children with lower class whites. The architects of this program believed that genetics ensured that there would never be ‘throw backs' – that no black baby would appear in later generations. At that time the idea behind the program was, as one of its architects put it, to "breed out the color". Responding to the question, how did he feel taking children from their mothers? Isdell answered that he “would not hesitate for a moment to separate any half case from its aboriginal mother, no matter how frantic her momentary grief might be at the time". They "soon forget their offspring”, he explained.

Those words – "they soon forget their offspring" - can mean different things in different mouths. Coming from Isdell, they were an expression of his racist disdain for the Aborigines and they marked his sense of the kind of gulf that existed for him between 'them' and 'us'. 'Our' children, he believed, are irreplaceable; 'theirs' are not. Taking his remarks as the expressions of a certain kind of racism, we can see that the attitude they betrayed extends to virtually every aspect of the lives of the Aborigines Nothing, Isdell thought, goes deep with 'them'; not their loves, nor their griefs nor their joys. In a perfectly natural sense of the expression, he saw the Aborigines as 'less than fully human'.

Although the grief of the women who had lost their children was visible and audible to Isdell, he did not see in the women’s faces or hear in their voices grief that could lacerate their souls and mark them for the rest of their days. It was, in the sense I suggested earlier, literally unintelligible him that sexuality, death and the fact that at any moment we might lose all that gives sense to our lives could mean to ‘them’ what it does it ‘us’. But to see in a people or in a group just what Isdell could not see in the Aborigines, is a condition of seeing that their humanity is defined, just as ours is, by the possibility of ever deepening responses to the meaning of those big facts that define the human condition – our mortality, our vulnerability to fortune and, of course, our sexuality

People like Isdell can change. When they do, it is often (as we all know) because they have lived with the people they denigrated, perhaps because one of their children married one of 'them'. That well know fact should not, however, tempt one to a natural but fallacious inference, namely, that the denigratory perceptions of racists- the ones that express the thought that nothing can go deep with ‘them’ - are the expressions of empirical generalizations. To avoid that fallacious inference we need to attend to an important distinction: it is the distinction between how racists like Isdell come to think of themselves as having been mistaken about what losing a child can mean to the victims of their denigration, and how they might come to acknowledge that they were mistaken in believing that blacks have significantly lower IQ's, are lazy, have inordinate sexual appetites, are promiscuous, have rhythm in their blood and are cruel to animals (to list an arbitrary number of stereotypes). Those stereotypes do have the grammar – the logical form - of empirical generalizations. Even when they are, in ways characteristic of racists, psychological so entrenched as to be beyond rational correction, they are like beliefs that Germans are efficient, that Italians are good lovers and that it is hard to get a decent meal in an English restaurant.  But coming, through living with a people, to see dignity in faces that had all looked alike to us, to see the full range of human expressiveness in them, to hear suffering that lacerates the soul in someone's cry or in their music, or to see it in their art, to hear all the depth of language in sounds that had seemed merely comical to us - all or any of that is quite different from coming to acknowledge that, for example, they score well on IQ tests. We do not discover the full humanity of a racially denigrated people in books by social scientists, not, at any rate, if those books merely contain knowledge of the kind that might be included in encyclopedias. If we discover it by reading, then it is in plays, novels and poetry - not in science but in art.

Is hostility to same sex marriage like racism? Is it like, for example, the hostility that racists show towards racial intermarriage? If it is, then we must ask whether we ought even to be discussing it. Would anyone now believe that we could decently discuss whether black people should be permitted to marry white people? Could we discuss it in the sense that presupposes that serious, informed people of good will could disagree?  Could we discuss it in the sense that presupposes an openness to being persuaded that one was mistaken? I don’t believe so. If all opposition to same sex marriage were expressions of homophobia, then discussion of the matter would be as indecent as discussing whether the law should permit interracial marriage.

As you might have begun to suspect, the answer to the question whether opposition to same sex marriage is like racism is that sometimes it is and sometimes it isn’t. Homophobia, I think, is when it shows that same mixture of incredulity and disgust that contemplation of racial intermarriage provokes in racists. Like racists – though perhaps less explicitly – homophobes denigrate the entire inner lives of gays and lesbians, and like racists they appeal to what they take to be relatively plain facts to justify their denigration (usually alleged facts about what is natural and what is not). And anyone foolish enough to argue with racists and homophobes comes to realize soon enough that they jump from justification to justification, betraying the fact their feelings have nothing much to do with the reasons they offer for them. My point is not that emotion makes racists and homophobes resistant to reason. It is that the reasons they cite are not the cause of their beliefs and their hostility, but rationalisations of them. 

One can begin to see how far the analogy with racism can be pressed if one notes two things. Firstly the demand that the law should permit same sex marriage is not at all like the demand for equal access to goods and opportunities. If it were, then some generous version of civil union would be acceptable. To many gays and lesbians, however, to demand the right to marry is not like demanding yet more of something that exists on the same continuum as, say, the right to inherit property. It is in a different dimension. It is, to be sure, a demand for justice, but like the demand that it should be acknowledged that Australia was not terra nullius at the time of settlement was not a demand for justice as fairness, so the demand to have the right to marry is not a demand for justice as fairness. It is the demand for justice conceived as equality of respect. It is, I think, absurd to think that the demand to be acknowledged as fully human is of the same kind as the demand for equal access to good and opportunities.

Is it hyperbole to say that when gays and lesbians demand the right to marry, they demand acknowledgment of their full humanity? I believe it is not. Recall my earlier claim that to acknowledge someone as a fellow human being is to see him or her as capable of rising fully, in full responsiveness, to the meaning of the defining facts of the human condition. One of those defining facts is our sexuality and the way it goes deep with us - so deep as to be fundamental to our sense of identity.

Secondly, as should now be clear, the demand to be permitted to marry is not on the same continuum as earlier demands that homosexual relations be decriminalised. In this connection, appeals to classical liberal arguments miss the point. Liberalism – the kind of political philosophy influenced by John Stuart Mill – teaches (roughly) that the state has no business interfering with a person’s conduct if it is not harmful to others. Allowing gay and lesbian acts in the privacy of people’s bedroom, commits the state to no moral view of the nature of those acts. A person could find them disgusting (as the same person might find oral or anal sex between heterosexuals disgusting, as some people, indeed, find sex disgusting) yet believe passionately, and consistently with liberal principles, that it is not the states business to interfere with what consenting adults do when what they do harms no one. But such a person could not believe that that gays and lesbians should be permitted to marry. Marriage celebrates a sexual union. Nobody could approve the celebration and solemnization of something they find disgusting. In respect of what people get up to in their bedrooms, the state can be, and I believe should be, morally unconcerned provided no one is harmed and the parties consent. In respect of what it celebrates and solemnizes, the state cannot be entirely morally unconcerned. But that, as I noted a moment ago, is exactly what gays and lesbians themselves appear to claim when they seek acknowledgment that their love can be celebrated as something precious and deep, and that they are able to rise to all the joys and obligations that define married love. Far from being a liberal demand, theirs is a kind of communitarian one – the demand, as I said earlier, for their humanity to be acknowledged fully by their fellow citizens.

I think we are now at the point on the conceptual landscape where we can see more clearly what, in our society, is the most common objection to same sex marriage. It is by people who do not believe that homosexual relations are immoral, perverted or disordered. Unlike homophobes of the kind I described earlier, their view of what makes gay and lesbian love unsuited to become married love does not infect their entire perception of gays and lesbians. They believe, nonetheless, that gays and lesbians cannot have what they most deeply want, not because the law will forbid it, but because the law cannot make married love out of love that is intrinsically unsuited to it. Even if the law were, misguidedly, to permit same sex marriage, this thought continues, these would be marriages in inverted commas only. The state cannot do what is conceptually impossible to do. If it were to try to do so by permitting same sex marriage, it would sow confusion and degrade the concept of marriage. That, I think, is the most common version of a traditional perspective on same sex marriage.

Before assessing it, let me try to make it clearer. There are limits to what we can do which are not physical, psychological or even moral limits. They are limits set by the conditions that must be fulfilled if our actions are to fall under certain concepts. Here are some trivial examples. You cannot signal unless there are certain conventions. In the absence of those conventions nothing you do will count as signalling. You cannot offend someone in the absence of certain relevant norms. And so on. Sometimes, the criteria governing the application of concept are conventional and can, therefore, be changed by agreement or by fiat. Sometimes they are not. What does it means really to love, to pray, to be a parent or a teacher? Reflection on these questions can deepen without limit. Argument about them cannot be settled by definitions, or by the deliberations of committee - no more than could argument about what it means to be a murderer, or more generally, what it means seriously to wrong someone. The same is true of disagreement about what it means to be married: reflection about it can deepen without limit and disagreement cannot be settled by fiat or by definition or by the deliverances of a committee. Were it not so, marriage itself would have no depth, and gays and lesbians would not be seeking it in the spirit in which many of them are. Marriage would be nothing more than a purely contractual arrangement. Many people appear to think that is what it is.  But if gays and lesbians are seeking a merely contractual arrangement to govern their relationships, they need not seek to get married.

An analogy might be helpful – not this time with racism, but with the relatively recent demise of any serious concept of a university. When John Dawkins conferred the title university on most institutions of higher education, it was clear to anyone who had seriously thought about the concept that many of those institutions were universities in name only. It was also clear that most of them would never become the kind of institutions that could seriously be called universities. It was predictable at the outset, that though the division that Dawkins sought to obliterate would reassert itself, no one would take away the name ‘university’ from those institutions which clearly do not deserve it, The upshot is that, for a time at least, the concept of a university is defunct in our public discourse. No institutions of higher education think of what they do (of the courses they introduce or axe, for example) under anything that resembles a serious version of it. Believing that they could grant what conceptually they could not, Dawkins and his successors degraded the concept of the university and with it our understanding of one historically distinctive form of the life of the mind – the academic form. The analogy with how some people look upon the prospect that forms of gay and lesbian relationships should be called “marriage’ is, I hope, plain.

Is there reason to believe they are right? Is there any reason to believe that once the moral objections have been put aside, there remains a compelling conception of marriage that makes it impossible for gays and lesbians to be married, really to be married rather than married in name only. I think there is not.

No reason is to be found, I believe, in the prudential considerations that shaped the development of marriage as an institution - considerations concerning the need for children to have stable homes, the benefit to society when they do, the, the concern with succession and with property and so on. Same sex marriage threatens none of this. To the contrary, because as the joke has it, only gays, lesbians and priests now want to get married, permitting them to do so might strengthen rather than weaken the institution.

Nor can reason be found in the claim that marriage has always been between a man and a woman. Even if that historical claim is true, things can be different and they can be different even if the ubiquity and historical depth of what shaped the institution also shaped our very concept of marriage. Concepts can be extended. The true and important idea that our actions are limited by whether they can satisfy the criteria that govern the applications of certain concepts, and the true and important idea that some concepts have the kind of depth that resists change by anything that looks like fiat or mere agreement  – these ideas, taken singly or together, do not rule out possibilities of radical conceptual revision.

Marriage - says the most common of the traditional objections to same sex marriage - is essentially between a man and a woman because sexual love between them can be deepened, in a way that love between gays and lesbians cannot be, by its connection with the possibility of bringing new life into the world. The idea here is not merely the idea that sexuality between a man and woman enables a fertile couple the pleasures of having children, nor even just the idea that it permits the woman the pleasure of carrying them. Rather, it is the idea that its connection with the wonder and miracle of life deepens heterosexual love through and through, deepening the lovers understanding of what it means to be a man and what it means to be a woman.

There are of, course, nasty versions of that thought – versions that speak of gay and lesbian love as perverse, degenerate, intrinsically disordered and intrinsically evil. But, as centuries of our art testify, not every version of the thought must be developed in anything like those ways. For the sake of the argument, grant that. Even then, however, two things seem obvious. Firstly, this is not a dispute that the state can buy into. If that is so, then no side to that dispute can inform the law. Secondly, even if it is true that love connected with the possibility of bringing children in the world has potentialities for depth that other forms of sexual love do not, why should that be reason for thinking that love between gays and lesbians lacks the kind of depth necessary for it to become married love? Why should that be a reasons for doubting that gay and lesbian love can worthily to rise to, be vitally responsive to, a full and deep understanding of what it means to be married, of what it means for love to be transformed by the marriage vow, for love worthily to become married love. Only ignorance, confusion or residual homophobia, I suspect could make on think that there a compelling reason.

The ignorance can be cured, though not by philosophy, metaphysics, or science, but by art – by poetry, novels, painting and film, and by the kind of experience that I spoke of earlier in connection with racism. Then, you will recall, I drew attention to the important difference between coming to see dignity in faces that had looked alike, or to see in a black body all that could invite a tender caress rather than merely excite lust, and learning, either through experience or reading scientific books that the factual stereotypes one had entertained about the victims of ones racial are false.

Anti-racism continues to be one of the great movements of the postwar period. Though foolish things have been said and done in its name and though unjust accusations of racism have actually contributed to racism, it can hardly be doubted that the world is a better place for it. The same is true of feminism and of gay and lesbian liberation movements. All have expressed a concern for equality that cannot adequately be captured by talk of equal access to goods and opportunities. Treat me as a person, see me fully as a human being, as fully your equal, without condescension - these are not demands for things whose value lies in the degree to which they enable one to get other things. They are calls to justice conceived as equality of respect, calls to become part of a constituency within which claims for equal access to goods and opportunities may appropriately be pressed.

If I am right, concern for justice in a community should be, in critical part, a concern that its institutions enable us always to see and to be responsive to the full humanity in our fellow’s human beings. Amongst those institutions, the ones that express the character of our responses to the defining facts of the human condition are paramount. They are institutions that have to do with birth, our vulnerability to misfortune, death and, of course, sexuality.