Marriage Equality

Foreword

For a long time I’ve been wanting to write a critique of the arguments that have been raised against same sex marriage and have been struggling to do so because there are so many of them. A lot of them don’t hold any salience, but they do in the minds of those who raise them. It is with that in mind that I write this article. I don’t write it to belittle anyone else’s beliefs but to expose the arguments being presented for what they really are: a reason to justify imposing religious laws onto the public.

In recent months there has been resurgence in a lot of these arguments due to the referendum in Ireland and the Supreme Court ruling in the US. As a result I’ve decided that it is necessary for me to get this completed as soon as possible.

The following essay is a critical evaluation of many, but not all, of the arguments opposing same sex marriage. In the interest of getting this completed I have only referenced those things that I feel are critical to my argument and the defence thereof. I have also chosen not to be gentle in stating some things that might be considered offensive to either side of the debate. It is not my intention to skirt over the fact that they are offensive but I would rather focus on the facts than on how offensive anything I have written is.

The essay focuses mainly on the most misunderstood and salient of anti-equality arguments such as same sex parenting, religious freedom and human rights. Without the backing of these major arguments the other arguments do not hold much weight and as such they are not as thoroughly critiqued. 

For the past few years I have been researching these topics passionately with a desire for truth no matter what that is. Though I was originally opposed to same sex marriage I now whole-heartedly support it, so long as there continues to be balanced protection of religious belief and equality, which I believe is already provided.

What is Equality?

Equality is not exactly a simple topic. At the surface it seems pretty basic but dig a little deeper and you'll discover that as you provide freedoms to one group or individual you often remove freedoms from another group. Equality is about balancing the rights and freedoms of all individuals and groups in society and not giving anyone special treatment based on their status, beliefs or opinions. Finding this balance can often be difficult as there are many different opinions about what rights and freedoms people are entitled to based purely on status as a person. 

Despite these differences of opinions almost everyone agrees to certain fundamental rights such as the right to life, the right to humane treatment (i.e. not to be tortured or treated cruelly) and the right not to be held in slavery. After the second world war, representatives of a number of nations and religions, shocked by the atrocities committed, got together and drafted the Universal Declaration of Human Rights. This document has formed the basis upon which many of today's human rights are based and established a base line for equality. It has now been superseded by more in depth international treaties such as the International Covenant on Civil and Political Rights (ICCPR), which provides an in depth outline of the fundamental rights and freedoms entitled to all persons regardless of their status or opinion. The ICCPR is agreed upon by 74 signatories and 168 parties, committing them to abide by it and respect the rights and freedoms outlined within.

Marriage equality in this sense of the equality, whereby people are inherently entitled to certain rights and freedoms, means that marriage as a basic human right cannot be denied based on status of those involved such as sex or sexual orientation. This does not mean that certain freedoms may not be denied but that the basis of denying freedoms cannot be "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." (ICCPR Article 2.1). In the marriage equality debate this means that marriage cannot be denied based on the sex of those entering into it but that such a denial must be substantiated by another reason, which as will be outlined is this essay cannot be suitably established.

Think of the children

In my experience the most common argument used to oppose marriage equality is to ‘think of the children’. To be frank, marriage equality, in and of its self, is not going to see a change to same sex parenting. Even if marriage equality is passed the same barriers to becoming parents will still exist for same sex couples. Marriage equality is just one step in the path to full equality for LGBTI+ individuals. Complete equality will make parenting more accessible to same sex couples and it is thus still important to discuss same sex parenting.

When someone says ‘think of the children’ they are claiming that being raised in a same sex parent household disadvantages children. One way in which individuals and organisations try to justify this claim is based on a common belief that men and women are uniquely different and fulfil parenting roles that cannot be satisfied by someone of the opposite sex. They thus assert that men and women are unequal in their parenting abilities, together making up for the deficiency of each other. This leads to the conclusion that every child needs, or at the very least is better off with, both a mother and a father.

According to this claim mothers are devoted, nurturing caregivers and men are providers who preside over family life. Following this line of thinking men are less capable of being devoted, nurturing caregivers and women are less capable of being providers and leaders.

From one perspective of history this does seem to have some basis in truth. The belief that men and women have uniquely different roles and capabilities as parents is reinforced by pre-existing culture. We commonly see mothers taking the nurturing roles and fathers taking the leadership roles. In recent decades we have started to see a shift towards equality of the sexes. Men and women have been treated more equally and their roles have become more similar.

Some people see this as a bad thing because it moves individuals away from their traditional gender roles. Conservative society has a particular bias in this matter, which hinders the ability of individuals to critically evaluate information. This bias is called a confirmation bias and everyone, liberal or conservative is subject to it in one way or another. When we have a pre-existing belief we tend to accept information that supports our belief without being sufficiently critical. In other words, when something seems correct we don’t thoroughly investigate alternative explanations. For this reason diversity of opinion is always important in the search for truth. Those who have a conservative belief about the nature of gender find it hard to see things from a perspective that does not conform to their pre-existing ideas.

Gender is often seen to be the natural outward manifestation (behaviour, mannerisms, style, etc.) of one’s sex based on the underlying male or female biology. This is one possibility but it is not the only one and when all things are considered it is not the most likely.

It is easy to believe that because most men act in a certain way and women act in another way that these behaviours are based on biology. An alternative explanation is that gender is a social construct, which coerces individuals to conform. In psychology this is related to in-group and out-group mentality. People unite over their similarities and divide over their differences. Children are gendered and subsequently treated differently from birth.  For example, in a study by Crowley, Callanan, Tenenbaum, and Allen (2001) it was found that parents are three times more likely to give a scientific explanation to boys than to girls. The authors reasoned that this could be why girls are less likely to end up in the sciences later in life. 
The differences between boys and girls are reinforced in children from a very young age by creating an often-unrecognised alliance between members of the same sex who conform to gender stereotypes and ostracizing those who don’t. Ostracism creates feelings of distress and causes individuals to question themselves. The result for many people is to alter their behaviour to conform and fit in, thus encouraging some degree of uniformity in gender and making it hard to discern whether it is biological or social. If gender were biological we would expect to see continuity across different cultures and time. Masculinity and femininity are clearly subjective judgements and categorisations of an individual’s behaviours, as they are not entirely continuous but differ with individuals, cultures, and time. 
In one Papua New Guinean tribe, the Tchambuli, men would be considered very feminine by western society, wearing makeup and rearing children, whilst the women would be considered very masculine as they hunt and provide for their families and take on leadership roles (Mead, 1963). There are also societies in China that are governed by matriarchy rather than patriarchy. In western culture we can see that the modern idea of masculinity has become effeminised by comparison to previous generations and femininity is not what it once was. Women are now employed in the workforce and share the role of providing for their families, when that was once frowned upon. The definition of masculinity, though having some similarities, still differs between Australia and other countries. Even within the country we can see that different people have different views on what it means to be masculine or feminine.

It’s also important to realise that there are people who do not conform to masculinity or femininity. There are those that are somewhere in between and there are those who do not conform whatsoever. The idea that gender is just male and female, or masculine and feminine, is based on the belief that sex is binary, and is incorrect. At least 1 in 1000 babies born are intersex, meaning that the child cannot be immediately categorised as either male or female, having ambiguous genitalia (Fausto-Sterling, 2000). There are a number of reasons why the development of male or female genitals in the womb can deviate. Many different genes, including those that control the release of androgens (such as testosterone) and the reception of these, determine the development of male or female genitals. If the genes dictate that the foetus’ cells are resistant to these, the foetus may only partially develop or develop female genitalia instead of male ("Does having a Y chromosome make someone a man?,"). Resultantly a child can be born with ambiguous genitalia or a child who would otherwise have been born male (XY) can be born with female genitalia. Through similar processes a ‘female’ (XX) child can be born with male genitalia or may have genitalia with both male and female features, such as a vagina and testes. With such diversity sex is not as clear-cut as many people assume. If even sex is unclear how can we then say that gender is only male and female?

Gender has been so ingrained in people and gone unchallenged for so long that quite often we accept things that support, or are based on our preconceived notions without being sufficiently critical. We believe that gender is biological and immutable because that is how we have experienced it. Gender expression differs substantially between individuals of the same sex and, even if there is a biological element to it, it is highly influenced by culture and upbringing. By treating the sexes differently it is impossible to conclude that behaviours are biological and not a result of socialisation. In order to conclude that boys and girls are different we have to treat them the same and still have different results. 
As society has moved towards equal treatment of the sexes we have seen a change in the definition of masculine and feminine leaning toward the conclusion that socialisation plays a large role in gender. There are differences between men and women on both a physiological level and a behavioural level, but there are also those who don’t conform to these, who are not limited by biology. People of any gender can adapt to circumstances and fulfil the roles required of them. Unless you are driven by a belief that children should be raised to categorise people by their sex, then gender is not an important issue in the parenting of children. Such beliefs do not hold sufficient weight to deny equality because they do not have the support of empirical evidence.

Besides the argument of gender uniqueness, another way that opponents of marriage equality like to ‘prove’ that children are worse off in same sex parent families is to twist the meaning of results (whether intentional or not), using statements such as:

“Studies have shown that children do better with a mother and a father”

The problem is not the veracity of this statement but that it is incomplete due to its reliance on a comparison. The statement on its own is true but it needs clarification. The immediate reaction of most people is to assume that this is in comparison to same sex couples because it is used in an argument against them, but it must be asked: in the studies being referenced what is a mother-father relationship being compared to? Following the references (if and when they exist) the studies at the heart of the message are almost always comparing single parents to mother-father parents. Sometimes the references lead through a trail of papers that are referencing those same studies but making leaping conclusions about same sex parenting. In these instances it is always important to follow the references back to the original studies so as to get the complete picture of what is possible to conclude from them.

In a meta-analysis of studies comparing same sex parenting with opposite sex parenting Biblarz and Stacey (2010) found that same sex parents were just as capable of raising children as opposite sex parents. More recent studies (Crouch, Waters, McNair, Power, & Davis, 2014; Dempsey, 2013) have only served to further support this. All but one of these studies that actually compare children in opposite sex parent households to children in same sex parent households find no significant difference in the child’s outcomes with at least one study actually finding that children in same sex parent households fare better than children in opposite sex parent households (Crouch et al., 2014). This is most likely due to the fact that same sex parents share the roles of looking after children more equally (because they are not confined to gender stereotypes) and there are no ‘accidental’ children in these relationships (Dempsey, 2013). In Australia, where the study was conducted, same sex couples (other than those who are bisexual) have to have the money and desire to raise children before they have them and are therefore not often raising children in sub-optimal environments simply because they forgot to use contraceptives.

The one study comparing same sex and opposite sex parents that has found negative results (Regnerus, 2012) did not ensure that parental competencies and family conditions were the same in both sample groups. Resultantly there was an immediate bias and the results are not indicative of same sex parenting but rather of the role of parental competency and family conditions on child outcomes. The only poor outcome from being raised in a same sex parent household regularly appearing in results is the prejudice imposed on children by those who oppose or are afraid of same sex relationships (Crouch et al., 2014).

The claim that there are methodological issues with most studies that compare same sex and opposite sex parenting outcomes, namely sampling bias, is true. Most studies gather participants using convenience samples (such as recruiting participants through ads in newspapers, magazines and online material) rather than random samples (where participants are randomly selected from the larger population). This is unfortunately the only way that such studies can be conducted due to the fact that there is no register of same sex parents from which to randomly sample. Despite this the studies have been repeated with the same results enough times that there is very little chance that there is any difference in outcomes. Though there is always a small chance of error it is not enough to support the continued discrimination of same sex couples. 
Some might argue that any risk to children no matter how small is sufficient to deny same sex parenting. If this were the case we would not allow single parents to raise children as the risk to those children, though still small is greater than the risk posed by competent same sex couples. From a scientific standpoint there is no reason to deny the opportunity of parenting to competent same sex couples.

Despite the scientific evidence some opponents of marriage equality share personal anecdotes (stories) that support traditional marriage. Anecdotes are never a good way to determine truth as they are subjective and open to a lot of bias to start off with and the facts are sometimes hard to discern. If true, the best these stories can offer is existential evidence, which is not generalizable. The most commonly referenced anti-same sex marriage anecdotes come from members of the self-titled ‘quartet of truth’. Other anecdotes tend to use the same reasoning as these. These adult children of gay and lesbian parents depict stories of abuse and/or neglect at the hands of their same sex parents and/or talk of their longing for their missing parental figure (Wetzstein, 2015). Their longing for a missing parent is irrelevant to same sex parenting but is a reflection on adoption and third party reproduction in general. Their claims of neglect or abuse whether true or not are not sufficient evidence for their conclusions and are a misattribution of incompetent parenting as being the same as same sex parenting.

Many children wonder what it would be like to grow up in a different family, and children who are subject to parental divorce or third party reproduction have someone upon whom to fixate that wonder and desire. Though it may be the case, longing for a different parent doesn’t necessarily indicate that a child’s current parents are incapable or insufficient, only that from the child’s perspective there are better alternatives. Children are not sufficiently critical in their judgement to be given legal rights of consent and the autonomy that is available to adults. Why would their judgement on such a matter as this be any different?

In response to their claims of abuse and neglect critical readers must acknowledge that heterosexual parents are just as likely (if not more likely due to the ease by which they can become parents) to be abusive and/or neglect their children. Someone could just as easily tote stories of children raised by abusive heterosexual parents and try to claim that this is evidence for why heterosexual parenting is bad for children’s outcomes. Such a path would be preposterous. It is only evidence that such a case exists and is not generalizable to all heterosexual parents, just as these stories are not generalizable to all same sex parents.

The ‘quartet of truth’ also claims to know of a few hundred other children of gay parents who have negative stories to share (Lopez, 2012) though the number who actually reach the same conclusions as them are actually much lower as this is based no a study by Regnerus (2012), which in addition to reaching false conclusions due to methodological and analytical issues (Perrin et al., 2013) still had mixed responses from participants rendering the number who actually had negative experiences lower than ‘hundreds’. Lopez (2012) and his fellow quartet of truth members would have us believe that the gender or sexuality of his parents was responsible for their incompetence as parents. With thousands of children being involved in studies that show no significant difference (Dempsey, 2013) and with many others willing to come forward and share their stories in support of same sex marriage (Holten, 2015) such a conclusion really holds little credibility. These individuals often mention things as if they are fact but provide little evidence to support their conclusions. Without solid backing any claims they make are just hearsay and hold no weight in an argument.

Another argument raised by members of the quartet is that denying a child access to one of their biological parents is unfair (Faust, 2012). Maybe in some situations it is unfair, but once again fair is a comparative term. Compared to being born into a family that loves and cares about them and is able to fully provide for them, being separated from a biological parent is unfair. Yet, compared to living in poverty or abuse it is more than fair to separate that child from their biological parents.

We allow adoption and fostering in Australia because sometimes that is in the best interests of the child. It may be unfair to deny a child access to their biological parents but it’s necessary for a plethora of reasons related to parental competency, relationship status of the biological parents and the manner in which the child was conceived (such as rape or teenage pregnancy). Who that child is placed with should not be determined by their gender, as same sex couples are just as capable of raising children as opposite sex couples. Queensland already adheres to strict requirements for who can adopt or foster and how to assess their competency (Adoption Act 2009, Qld; s. 122-148D Child Protection Act 1999, Qld). However, the state explicitly denies adoption to same sex couples with a requirement to have an opposite sex partner (s. 76.1 (g) Adoption Act 2009, Qld), despite having no such restrictions on becoming foster carers (s.122-148D Child Protection Act 1999, Qld).

Surrogacy and Assistive Reproductive Therapy (ART) child outcome studies have shown that children and adolescents who were conceived through donor insemination, egg donation, or gestated through surrogacy fair just as well as children conceived through normal processes (Golombok, 2013; Golombok, Blake, Casey, Roman, & Jadva, 2013; Golombok, MacCallum, Murray, Lycett, & Jadva, 2006; S. Golombok et al., 2006; Golombok, Murray, Jadva, MacCallum, & Lycett, 2004). Even if it is unfair that a child is denied access to a biological parent that doesn’t stop heterosexual couples and single women using ARTs, which deny children that access. If heterosexual couples and single women are able to use these methods why shouldn’t same sex couples be able to?

The waters are muddied even further when you consider that biological parents could be the genetic parents, the embryonic mother or the gestational mother. Researchers from Cambridge University have even successfully reprogrammed human skin cells from adults into the precursors of sperm and egg cells (Dunn, 2015). This means that it may one day soon be possible to conceive a child using the genetic material of same sex partners. If it were to be successful (and researchers are quite confident that it will be) the argument of biology excluding same sex parents would be void. 

All of this considered, a single child could have as many as four biological parents. Not many people would argue that the child should be raised by all of them. If a child has a right to biological parents then this raises a question as to which of the parents the child has rights to. 

The argument that denying a child access to a biological parent is unfair just doesn’t hold up as a justifiable reason to deny same sex couples the opportunity to parent. By an argument of fairness one could just as easily argue that it is unfair to deny a child being raised in a same sex parent household the protections that come from marriage.

Same sex parenting is already legal to varying degrees in Australia and many other countries and the debate over how same sex marriage will affect children is superficial. The main thing that will result from marriage equality is the legitimisation and protection of these relationships and families. It will make things easier for same sex parent families and help to reduce prejudice by affording them legal protections from discrimination. 
One issue of actual importance and relevance to those who oppose marriage equality is how to balance religious freedom, human rights and the rights of children.

Religious Freedom, Human Rights and the Rights of Children

I completely understand why a religious person would get upset about same sex marriage. It will most certainly eventuate into a loss of some of the current privileges that religious individuals hold, but this is nothing new.

As a former LDS (Latter Day Saint or Mormon) I get the argument against same sex marriage from a religious perspective. Same sex relationships do not align with the LDS perspective of the family or the teachings of many other religious institutions. ‘The Family: A proclamation to the world’ makes that abundantly clear for the LDS church. However, this fight for equality is not about achieving marriage in the religious realm (though some people do seek that). It’s really about equality before the law.

The bill currently presented before parliament by Bill Shorten MP and the soon to be introduced cross party bill both have exemptions for Religious Ministers written into them and therefore pose no threat to ministers of religion to discriminate as to whether they perform same sex marriages or not. There is, however, a question over the religious freedoms of individuals who provide products and services to the public. Should individuals be required to provide those services to a same sex couple?

There has been a lot of hype about a bakery in the US that refused to provide a wedding cake for a lesbian couple. The owners of the bakery said that this was because of their deeply held religious beliefs.

I understand their arguments and sympathize with both parties. When it comes down to it though they should be required to provide the cake because they are providing cakes to other weddings from a public business.

If a baker refuses to make a cake for a same sex couple’s wedding but will make cakes for other weddings they are most certainly discriminating. If a business or individual offers a product or service to the public they must be capable of providing the same service or product to any person irrespective of the characteristics of the person.

That’s not to say that businesses shouldn’t be able to discriminate as to what products or services they provide, or that they shouldn’t be able to refuse services and products to an individual for legally justifiable reasons such as unethical behaviour. It means that they shouldn’t be able to discriminate between people based on traits such as sex, race, religion, belief, or sexual orientation – characteristics that make them different but do not make them unequal. Importantly, same sex parenting and same sex relationships are not unethical, as they cause no harm to others. They are only immoral according to certain belief systems.

To turn the tables, there are many atheists, agnostics and Universalists who have deeply held beliefs opposing the raising of children in a religious environment. Such an individual would be opposed to providing a cake for a religious wedding for much the same reasons a religious person would be opposed to providing a cake for a same sex wedding. They believe that raising children in a religious environment is bad for the outcome of children by denying them the right to choose their own beliefs. In the same way that a religious baker should not be able to discriminate against a same sex couple, an atheist baker who makes wedding cakes should not be able to discriminate against religious individuals. If they were to refuse to make a cake for a religious wedding that would also be discrimination just the same as the religious baker.

There are many who argue that they shouldn’t be forced to do something that goes against their religious beliefs. I mostly agree, but religious freedom has always been subject to some limitations from government. Human sacrifice, though abhorrent to most modern religions, is a religious belief, which any decent person realizes must be limited (read: stopped) in its expression.

Nobody wants to be discriminated against and no exceptions should be legally permissible. Of course a lot of people will not take a legal route when they experience discrimination but that option should be there for their protection and to encourage people to do the right thing.

Australian society is pluralistic, with many people who have vastly different beliefs and opinions. It is not possible to accommodate all of these and still have a cohesive society unless there are some restrictions. At the same time there has to be a point where freedoms cannot be restricted or we become a dictatorship. Since 1966 the limitation of expression of religion and/or belief has been guided by the UN’s International Covenant on Civil and Political Rights (ICCPR) and a number of other international treaties to which Australia is a signatory, the Australian constitution, State Constitutions and state and federal laws.

The international treaties hold the greatest weight in the marriage debate because they set out guidelines for nations signatory to them on how laws should be legislated to protect the rights of ALL people. These treaties embody the rationale of why marriage equality is an issue.

There are three sections in the ICCPR that are particularly pertinent to the current marriage equality debate:

Article 2.1:

‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’

Article 18.3:

‘Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.’

Article 23.2:

‘The right of men and women of marriageable age to marry and to found a family shall be recognized.’

These three articles combined provide the argument for marriage equality. Relating it to the debate, the first ensures that all people in Australia are treated equal regardless of their sex (which means that if someone wants to marry of a particular sex the recognition or prohibition of this should not be influenced by their own sex). If the sexes are equal it shouldn’t matter who someone is in a relationship with. The second article protects the beliefs of any person from unnecessary limitation by setting out the conditions necessary for limitation. This includes atheistic, agnostic and theistic beliefs. If anyone argues that atheistic and agnostic beliefs are not subject to protection, confirmation of this protection is found in United Nations Human Rights Committee General Comment 22.2 (1993). The third article ensures that marriage and the founding of a family is a fundamental human right.

The combination of these articles means that regardless of their sex any man or woman should be free to marry and form a family (unfortunately this leaves out the right of anyone who identifies as neither a man or a woman to marry if the government recognises that identification). Although it explicitly mentions men and women separately it does not state that they must marry each other, leaving open the implicit meaning that marriage is a right for same sex couples just as much as it is for opposite sex couples.
Some opponents of marriage equality argue that opposite sex marriage is not discriminatory of sexual orientation because someone does not have to be heterosexual to enter into marriage. This argument is correct but omits that it is discrimination of sex. It is discrimination based on sex if a male is denied recognition of his marriage to someone purely because that person is also male. Likewise it is discrimination if a woman is denied recognition of her marriage because the person she marries is a woman.

Of course this must then be balanced with religious freedom because many religions oppose same sex marriage. According to Article 18.3 a state cannot limit freedom of expression of belief without satisfying one or more of the conditions outlined. This presents a rather tricky situation for governments as there are completely opposing beliefs that must both be balanced. Religious belief that views homosexuality as immoral must be treated equally to atheistic or non-theistic belief or any other belief that supports same sex marriage.
Some may argue that homosexuality is immoral and therefore may be subject to limitation. This is an incorrect understanding of the word moral. Morals are an individual’s ideologies of right and wrong. Public morals are then the cumulative result of all the individuals in said society. In Australia 68-72% of the population supports same sex marriage (Brigham, 2014) and with a majority support it is not against public morals. 
Same sex marriage does not pose a threat to public safety, order, or health and marriage is a fundamental right which must be recognised according to Article 23.2. The result is that government must recognise the right of same sex couples to marry and form a family, meaning that same sex marriage cannot be prohibited. Equality then dictates that if heterosexual marriage is recognition of a union of two adults by law that same sex marriages must also be recognised by law. Same sex couples’ right to marry should also have equal protection and regulation to opposite sex couples' right to marry, as the only difference is the sex of the individuals.
Equality also dictates that if government protects religious couples from discrimination then it must also protect same sex couples from discrimination. The only two truly equal outcomes are that everyone is allowed to discriminate freely or that expression of belief is restricted to the same extent for everyone. In this case limitation of religious practise is still subject to Article 18.3 and therefore cannot stop religions from discriminating in the religious realm (though this is open to debate on grounds of mental health). Although marriage and therefore the equal recognition of marriage by government is a right, religious recognition of marriage is not. Expression of belief can be limited in the public realm if it satisfies one or more of those conditions outlined by Article 18.3. In this case it may satisfy the conditions of protecting public order, health, and the rights and freedoms of others.

There is some room for debate on some of these as even if a baker refuses to provide a cake the couple will still be able to get married and thus exercise their right to marry. However, allowing the refusal of a service in the public sphere based solely on the sex or sexual orientation of the individuals involved is not in the interests of public order and cohesion. Allowing religious individuals who oppose same sex marriage to refuse service to same sex couples would also mean allowing people who believe religious parenting is immoral to discriminate against religious couples. In the interest of public order legislation must therefore prevent this type of discrimination of both groups. Public health could also be used as justification because discrimination leads to poor mental health.

Even if religious freedoms are curtailed in the public realm religion still has a unique realm wherein individuals can still practice their beliefs, namely their own institutions. Within the confines of chapels, mosques, and religious buildings there are many exceptions to laws, which would otherwise inhibit their religious freedom. Discrimination based on religious laws is already permitted within these institutions but not outside of them.

One example of the discrimination that is permitted is Priesthood ordination. Outside of the LDS church it is illegal discrimination to deny a job (or a calling in this instance) to someone based solely on their sex, within the church it is not. Another example is religious schools, which have the right to expel students based on their sexuality (though they face severe backlash for doing so).

Overall it is just nonsensical to allow any form of discrimination based on the characteristics of those involved. As a result anyone who feels they cannot support or provide a service or product for a marriage based on the characteristics of those involved should change how they discriminate and avoid the practice of marriage in the public sphere completely rather than discriminating against individuals.

In order to balance out the argument thus far it is important to also cover several additional sections from the ICCPR and the UN’s Convention of the Rights of the Child (UNCRC). These are important to understand as opponents of marriage equality have cited them in debates (Iles, 2015) in combat to the previous arguments.

Article 23.1 of the ICCPR:

‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’

Article 7.1 of the UNCRC:

‘The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.’

Article 9.1 of the UNCRC:

‘States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when… such separation is necessary for the best interests of the child.’

The ICCPR was written in 1966, before a concept of marriage equality was engrained in the public mind. Article 23.1 reflects that when it describes family as natural. Many argue that the use of the word natural means that marriage should only be about 'natural marriage', implying that natural marriage is only between a man and a woman. 

This assessment is incorrect as the definition of marriage and family has already been expanded beyond what one would normally deem ‘natural’. The ICCPR doesn’t anywhere specify what the ‘natural’ family is. However, it is worded in such a way that it does not specifically exclude polygamous (more than one spouse) families. With some religions and nations practicing polygyny (multiple wives) this was not explicitly excluded from the definition of family or marriage and is therefore part of the definition of ‘natural’.

In modern society we create families through Assistive Reproductive Therapy (ART) such as surrogacy, sperm donation and egg donation regardless of the mother’s relationship status. We also have genetic testing done to ensure that babies do not have any serious medical conditions. None of these procedures is exactly ‘natural’ but we still deem families created in this way to be just as much a family and entitled to protection by society and the state.

Even then, what is deemed to be ‘natural’ is open to further debate. In the broadest definitions natural is anything resulting from nature, which arguably encompasses everything. Man-made things are not generally considered to be natural but man is a product of nature just as any other animal is. A bird nest is considered natural and yet an animal creates it. By logical extension anything created by a human is natural. 
The reference to natural may not even be limited to biology and may be a reference to the emotional bonds that tie a family together. With such ambiguity possible it is hard to use this single word to imply the exclusion of same sex couples from marriage.

The debate surrounding UNCRC Articles 7.1 and 9.1 also centres on the definition of a word. In this case it is the word ‘parent’. Some people argue that parents are a mother and a father. There is no clear indication as to what the ICCPR or the UNCRC define as a parent. One could argue that it means a biological parent, which could be further refined as gestational, embryonic, or genetic. A gestational mother does not necessarily equate to a genetic or embryonic mother, as they could be recipient to egg or embryo donation. Likewise a genetic mother may not be the gestational mother due to surrogacy. The result is four possible biological parents. Parents may also refer to adoptive parents who have no biological relation to the child but may be the parents from whom the child should not removed. Law does not mandate that a child must know or be raised by all of these parents and therefore the definition of parents is ambiguous and situationally derived. It does not provide a sufficient argument for excluding same sex parents.

Regardless of the lack of clarity with these words one thing is very clear. The underlying principle governing the ICCPR and the UNCRC is equality. The definition of ‘parents’ and ‘natural’ is intentionally vague so that it can be inclusive of many different families. Based on these principles of equality and inclusiveness no one should be discriminated against in regards to matters of human rights based purely on their sex or sexual orientation.

Lastly, the question of whether a child has a right to both a mother and a father needs to be answered explicitly. The international treaties are unsurprisingly vague. Some nations party to the treaties do not accept the same definition of parents as other nations or religions and this leaves the definition open to interpretation. There is one key, though, that overrides all these different ideologies. That is the line ‘the best interests of the child’. This is still vague and leaves open a myriad of options but it helps to answer the question of whether a child has a right to both a mother and a father. 
What is in the best interests of the child is best decided when all the facts are known and that decision differs according to the situation. It is clear from studies into same sex parenting that what is in the best interests of the child has nothing to do with the sex of the child’s parents but rather to do with the competency of those parents. As such the rights of the child do not demand having both a mother and a father. If having both a mother and a father is in the best interests of the child, based on the capabilities of that particular mother and father compared to other prospective parents, then it is that child’s right. However, if having both a mother and a father is not in the best interests of the child then having both a mother and a father is not the child’s right.

We already have legislation that reinforces the notion that children do not have the right to a mother and father: divorce. If it were really about putting the right of a child to have a mother and a father above the rights of adults we would not allow the dissolution of a marriage where children are involved and we would force all single mothers to wed or otherwise involve a father figure. We don’t do this, though, so how can we deny that opportunity to a same sex couple, who are equally competent in raising children?

We shouldn’t enshrine any incompetent parenting in law, but there is no need to deny parenting to same sex couples based solely on their gender/sexuality. Such a decision should be based only on their competency.

The arguments to this point comprise the major issues in the marriage equality debate. There is no justifiable reason for denying couples the right to civil recognition of marriage and forming a family based solely on their sex or sexuality. There are going to be issues associated with the balancing of religious freedom with anti-discrimination laws but the right course of action is to provide everyone with legal protection from discrimination in public (which is already provided through existing anti-discrimination legislation). Despite this, marriage equality legislation needs to be passed if we ever want to secure a society where all people are seen as equal. The discussion needs to rise above what it has done to this point and people need to stop making false claims, sweeping generalisations and believing things without being critical. Not all religious people are opposed to marriage equality. Not everyone who opposes marriage equality is a bigot. Same sex parenting is no better or worse than opposite sex parenting. Marriage equality isn't going to stop people from practising their religion. Don't believe anything just because it sounds right. If it doesn't have a reference then it might be a lie and even if it is referenced it may be an incorrect conclusion, so find out the details for yourself.

Additional Arguments

From this point in the essay the arguments raised are simply distractions from the major issues of religious freedom and human rights. Without the previous arguments these arguments do not hold any real potency but they still deserve a mention.

Slippery Slope Argument

The slippery slope argument seems to arise occasionally in opposition to marriage equality. The premise goes that by allowing same sex marriage we are opening the door to other relationships including polygamy, polygyny, polyandry (marriage to more than one husband), paedophilia, incest and bestiality. A lot of this is fear mongering but there is some truth to it.

Same sex marriage is not going to bring about marriage to minors, incest or bestiality, as there is plenty of evidence, regardless of the repugnance of such relationships, to show that these are violating the rights and freedoms of others.

Some try to bring up that paedophilia is an orientation much like homosexuality, in that it is not a choice. This likening of paedophilia to homosexuality, whether correct or not, is insufficient justification for denying rights and freedoms to a child or for putting a child at risk. A child cannot legally consent and marriage is restricted in the ICCPR as a right of adults only. Sexual relationships between adults and children are abusive and detrimental to children’s health and wellbeing. It is therefore not feasible that the legalisation of same sex marriage would lead to paedophilia being legalised or sanctioned in any way.

Incest is also illegal due to risks associated with it: the potential for grooming or coercion by an older relative and the risk of birth defects. Bestiality involves an issue where an animal cannot consent but also has health risks associated with it. These are pretty major differences that will always result in a prohibition of the expression of such relations.

Polygamy, polygyny, and polyandry (plural marriage) are different to the other relationships. The legalisation of same sex marriage may in fact ignite a debate over plural marriage because it involves similar arguments, which are as yet unanswered, but it would not necessarily lead to the legal recognition of such marriages.

A quest for legalisation of plural marriage is fundamentally different from the same sex marriage debate and lacks that which has been essential to make the same sex marriage debate into a debate of equality. Unlike same sex marriage the illegality of plural marriage does not deny a right based on the characteristics of the people involved. Same sex marriage is an issue for government because it recognises marriages of opposite sex couples but not of same sex couples. This is a denial of the right to marry based purely on the sex of the individuals involved and therefore violates the ICCPR Article 2.1 wherein all individuals are entitled to equal rights.

As outlined in the previous section the right to marry and form a family is not clearly defined in the ICCPR but is left to government definition. As a result of government recognition of marriage between a man and a woman it is discrimination not to extend this to a same sex couple. Plural marriage does not come under the same argument because the discrimination is of a practise or belief and is subject to Article 18.3 rather than discrimination based on the sex or some other immutable characteristic of the individual, which would see it subject to Article 2.1.

Religious individuals are protected from discrimination and are entitled to the same rights as any other individual, which in this case means the right to recognition of marriage to one other person. On the other hand, manifestation of belief does not obtain the same protections as an individual but is protected from unnecessary limitation. It can only be subjected to limitation if such limitation is “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” (Article 18.3 ICCPR) In order for government to prohibit the practice of plural marriage it must therefore show reason how it is necessary for the protection of one of these conditions. I don’t know what the government’s justification would be but I do believe that there is a chance that plural marriage does not satisfy any of these conditions, though there are arguments that plural marriage leads to the subjugation of women or poor outcomes for children.

Presently, bigamy (the practice of a married person going through a marriage-like ceremony with someone other than their husband or wife) is prohibited under Section 94 of the Marriage Act (1961) and Section 64 of the Crimes Act 1958 . Plural marriage advocates would need to show that plural marriage does not violate any of the conditions necessary for the limitation of the manifestation of a belief in order for this prohibition to be removed but showing this would not mean that government would have to recognize plural marriage.

If it can be shown that plural marriage doesn't satisfy any of the necessary conditions in article 18.3 it would thus be a breach to the treaty to prohibit it but a breach to 18.3 doesn't have the same ramifications as a breach of 2.1. 

In order for the government to recognise plural marriage as it does opposite sex marriage of two individuals it would have to be breaching article 2.1 and be denying rights based on one of the statuses mentioned. The discrimination is not based on one of those statuses though, but is instead based on numbers, making it permissible. 

One might argue that it is discrimination based on religious status, which would make it a breach of 2.1 but it doesn't really work because they can still enter into a legal marriage with one other person and be entitled to the same rights and recognition as anyone else.
Overall the possibility that same sex marriage may lead to the recognition of other forms of marriage does hold some small amount of credence but it will not because of a slippery slope wherein it opens up legal precedence. Plural marriage may become possible because the argument holds merit of itself in light of current laws.

What benefit does marriage equality provide?

There is another argument going around that government has no reason to extend marriage to same sex couples because same sex marriage has no benefits to offer society. I would put forward that such an argument denies the previously established point that it is a right to be able to marry and that it is a right to have one’s family protected by society but that does not directly rebut the argument.

Article 23.1 of the ICCPR states that the family (whatever form it takes) is the ‘fundamental unit of society’. This implies that it provides a fundamental benefit to society. Those benefits are the same whether it is a heterosexual marriage or a same sex marriage and include creating a stable environment for the raising of children.

Marriage is a written commitment between two people and that commitment provides a measure of stability. Marriage in our current society may have become watered down with divorce but to those who respect it it still provides some security regardless of their sexuality. Legalising it will also make discrimination more difficult and provide a safer environment for children to be raised in.

The LGBT community has higher than average prevalence of mental health issues correlated with perceived discrimination (Bostwick, Boyd, Hughes, West, & McCabe, 2014; Mays & Cochran, 2001). It is well documented that perceived discrimination is related to poor mental health (Bostwick et al., 2014; Kessler, Mickelson, & Williams, 1999; Mays & Cochran, 2001) and such results indicate that the benefits of marriage equality would reach into mental health. A study of LDS affiliated LGBT individuals found that marriage raised their quality of life scores from a level equivalent to those suffering from polio to higher than the US national average (Bradshaw, Dehlin, Crowell, Galliher, & Bradshaw, 2014).  In Australia an improvement in mental health would be a benefit to society in general, as it would reduce public health costs to government.

We can also speculate as to the potential economic benefits that would come from gay weddings as has been reported in numerous news articles (Badgett, 2012; Koziol, 2015).

History of Marriage

For any LDS people out there I should think that this is a mute point. Some opponents of same sex marriage try to say that we are tampering with marriage as if it has never been changed. In the early history of the church the definition of marriage to an LDS person was one husband and multiple wives. How can any LDS person claim that marriage between one woman and one man is ‘traditional’ or that the definition hasn’t changed?

Bible bashing Christians likewise have no justification in such an argument. Abraham was married to more than one woman and also had concubines (the equivalent of a live-in prostitute)(Genesis 16:3; 25:6). Jacob also had multiple wives, Leah, Rachel, Bilhah and Zilpah (Genesis 29-30), as did King David and King Solomon (who infamously had 700 wives and 300 concubines). Biblical law saw women as a commodity such that if a man raped a woman he would have to pay her father and then marry her (Deuteronomy 22:28-29).

Over the centuries marriage has changed from one model to another and back again. In the Roman Empire the Emperor Nero married at least two men and there are allegations that the Christian church officiated same sex unions in the Middle Ages. In times not long past marriage was a business transaction used to unite social and business bonds. Even as recently as the last century marriage between races was illegal.

There’s just no sense to the argument that the definition of marriage has never changed or that it has always been between one man and one woman. Even so, history is not a good way to measure equality.

Weakening of marriage

There is some concern that opening marriage to same sex couples will weaken the institution. This seems to be founded on the stereotyping of gays as sex-crazed deviates, who can’t stand monogamy, and the belief that allowing them to marry will result in an increase in broken families and divorce.

Of course there is some truth to the stereotype but not all gay people are promiscuous and promiscuity is definitely not confined to the gay community.

LGBT people have been sidelined for many years and forced to act in secrecy, encouraging the sexual culture that has emerged. Such a culture doesn’t need to exist to the extent that it currently does and I expect that the social inclusion of LGBT people will see it watered down. Heterosexuals also have similar sexual cultures but in smaller proportions of the population. I imagine that when everyone is treated equally we will see similar levels of promiscuity in the LGBT and heterosexual communities. We’re already seeing a lot of sex clubs shut their doors because they are not getting the patronage that they once were and gay youth dubbed ‘Disney gays’ actually believe that they will marry and have families like their heterosexual counterparts. Even if there is no change in the levels of promiscuity in the gay community the legislation and therefore the rules surrounding marriage that give it strength remains unchanged other than to be inclusive of same sex couples.

Religious institutions will still have the freedom to define marriage however they wish and to enact stricter rules for entering into and dissolving the union.  As such, even if secular marriage is weaker for allowing LGBT people to marry, religious marriage will be unaffected by a change.

In countries where same sex marriage has been instituted for a long time there has been no unusual increase in divorce rates. Any fears that marriage will be weakened as a result of marriage equality are therefore irrational.

Edit (11/08/2015): Added the section "What is Equality?" and changed a few lines in the section "Religious Freedom, Human Rights and the Rights of Children" and "Slippery Slope Argument" to help clarify that the argument for marriage equality is not won by arguing that discrimination is based on sexual orientation but sex.

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