David Friar: Marriage is more than having and nurturing children

COMMENT

Samuel Gregg claims that discrimination against gays and lesbians is justified. But however ingenious his arguments, they simply do not follow.

He said that it was just to deny lesbians and gays the legal benefits of marriage because their relationships were not equal to a relationship between a woman and a man.

We should be clear about what is at issue here. The Civil Unions Bill will not allow gays and lesbians to marry. Marriage will remain for heterosexuals only. Rather, the bill will allow straight, lesbian and gay couples to enter into a civil union.

Dr Gregg is concerned that allowing civil unions will diminish the law's recognition of marriage as a special relationship between a man and a woman. But if anything, it does the reverse. It clearly signals that marriage can only be between a man and a woman. By creating a concept of civil union, the traditional status of marriage is preserved.

If marriage is indeed the unique and special relationship Dr Gregg claims it to be, it is difficult to see how it could be threatened by a new institution of civil union. If he truly believes that marriage is superior, he should have no problem in allowing people a choice of institutions that recognise their relationships.

Dr Gregg claimed that the law should not offer any protection or recognition of lesbian and gay relationships, because they were not equal to straight relationships.

When we think of what makes up a loving relationship, we think of aspects like a long-term exclusive commitment, an emotional bond, a sexual attraction, and a mutual dependence. And these aspects can apply to straight, gay and lesbian relationships.

But for Dr Gregg, none of these is the key to a heterosexual relationship. Straight relationships are not mainly about love; love is a mere precondition to a marriage between a woman and a man. Rather, the main function of marriage is creating and raising children. And he says that as gays and lesbians are incapable of creating and raising children, their relationships cannot be equal to straight relationships.

Dr Gregg's definitional argument seems clever, but it misses the mark. First, if creating and raising children is the basic reason for marriage, why do we allow infertile couples to marry? On Dr Gregg's argument, if procreation is so important, the state should require a fertility certificate for every couple before issuing a marriage licence.

Or why do we allow older people to marry? Women who have passed menopause cannot have children, but we do not see a campaign from the Acton Institute to prohibit these women from marrying.

Secondly, even if having children were a part of every marriage, it is only a part. Dr Gregg is wrong to elevate the role of creating and raising children above all the other aspects of marriage. Having and nurturing children is an important part of many marriages, but it is not the only part.

If gay and lesbian relationships are equal on every other measure, one difference to straight relationships should not mean that gay and lesbian relationships deserve absolutely no recognition or protection.

Thirdly, many lesbians and gays raise children as a result of reproductive and parenting arrangements. None of these arrangements are exclusive to same-sex couples.

Both same-sex and opposite-sex couples foster, adopt, conceive children though assisted conception and surrogacy, and form families with children from previous relationships. Creating and raising children is not limited to heterosexuals.

Perhaps what it comes down to is the sex. Dr Gregg tries to create a difference by saying that gays and lesbians can never express the "two-in-one-flesh unity" that heterosexual couples can.

But should we deny people legal rights and benefits on the basis of what they do in the bedroom? Most New Zealanders take the view that it is none of the state's business. And rightly so. A distinction based on what type of sex people have is a distinction based on prejudice, not principle.

If the Civil Unions Bill is passed, it will show that New Zealanders feel comfortable enough in their own relationships to recognise and protect the relationships of others. I will be proud when that day comes.

* David Friar is an Auckland lawyer and former Fulbright Scholar. He responds to Dr Samuel Gregg, of the Michigan-based Acton Institute, who wrote that civil unions diminish the law's recognition of marriage as a special relationship of unique benefit to society.