“Teacher, which commandment in the law is the greatest?” He said to him, “‘You shall love the Lord your God with all your heart, and with all your soul, and with all your mind.’ This is the greatest and first commandment. And a second is like it: ‘You shall love your neighbour as yourself.’ On these two commandments hang all the law and the prophets.” Matthew 2:36-40 (NRSV)
The first five books of the bible, collectively known as the Pentateuch or, in Jewish terms, the Torah, are what Jesus referred to in the verse above. Since opponents of marriage equality consistently refer to a biblical form of marriage, it is worth considering the place of marriage within these books. It is important to note that although there are many references to marriage, and some laws around sexual interactions, there is no definition as such within any of these books. It must be inferred. Therefore, this piece explores the nature of marriage as contained within Genesis, Exodus, Leviticus, Numbers and Deuteronomy – or the Law.
Genesis sets the scene for the whole bible. It starts with creation, and follows the stories of the patriarchs and their families. Scholars often compare the stories of Genesis to other tales from the Ancient Near East, to understand them in their historical and cultural contexts.
Genesis begins with two accounts of creation. It is the second account, found in Genesis 2:4:15-25, which has been consistently used in the marriage debate to show that the biblical definition of marriage is the union of a man and a woman. In this story, woman is formed from the rib of man while he is asleep. When he wakes, Adam names her and takes her as his own. The writer tells us that ‘for this reason a man will leave his father and mother and be united to his wife, and they will become one flesh’.
Note the writer does not say that they will be married, rather that they will ‘cleave’ to one another. By chapter 3 verse 6, Adam is referred to as Eve’s husband, and in verse 8 Eve is said to be Adam’s wife. Given that Adam and Eve are depicted as the only two people on earth, there would have been no celebrant, witnesses or legal contract, and no forsaking all others. Just Adam and Eve, and in time their children.
After many generations have passed, including Noah and his wife, Abraham and his wife (also his half-sister, or perhaps niece), we see the first story of an engagement of sorts in Genesis 24. Abraham’s servant is sent to procure a wife for his son, Isaac. Rebekah is chosen. She is given jewellery. Her family is propositioned, and given gifts. Rebekah is consulted on the match and chooses to go back to Abraham’s land. All this is predicated on the idea that the one chosen must be from Abraham’s lineage, and willing to go and reside with their family. We are not told about a wedding, or the terms of the engagement, or any other details. In fact, straight after this passage, we are told that Abraham has taken another wife besides Sarah, and that before his death he gives her and all his concubines gifts, and sends them away.
The next marriage story is about Jacob (Isaac and Rebekah’s son). He must work for Laban (Rebekah’s brother) for seven years to earn the hand of Leah (his cousin). He then works another seven years because Rachel (Leah’s sister) is the one he really wanted to marry. He has children with both Rachel and Leah, and with their maids Bilhah and Zilpah. There seems to be no objection in the text to his marrying his cousins, two sisters at the same time, or that he has children with at least four different women of the household.
Next, there is the story of Sechem, who takes Dinah’s virginity (Jacob’s only named daughter), and then wants to marry her. This story has been proposed as potentially consensual or, alternatively, rape, although the text is unclear because this is not the point of the story. Dinah’s brothers agree to the marriage on the condition that the whole of Sechem’s village is circumcised beforehand. While the men of the village are recuperating from the procedure, Dinah’s brothers murder them all and Dinah is taken back to the patriarchal home, never to be mentioned again.
The next story of marriage is Judah and Tamar. Tamar was married first to Er, who died, and then to Onan, who also died. Er and Onan are both sons of Judah. He has one more son, Shelah, who Tamar should be married to when he becomes old enough, according to the law of levirate marriage. Judah fears for the life of his youngest son, and so sends Tamar away. Judah did not fulfil his duty to look after Tamar, and so she dresses as a prostitute and waits for him on the road. Judah visits and impregnates her, unaware of her true identity. When all is revealed, the disgrace of Judah is revealed and Tamar takes her place in the lineage of Jesus. There is no condemnation recorded for Tamar’s actions, only for Judah because he has been a hypocrite and failed to do his duty. Tamar is one of only five women mentioned in the lineage of Jesus, recorded in Matthew’s gospel.
Exodus is the story of how the Israelites escaped slavery in Egypt, and wandered in the desert for forty years before reaching the Promised Land. There is just one law in Exodus about marriage. Chapter 22:16-17 says that ‘if a man seduces a virgin who is not pledged to be married and sleeps with her, he must pay the bride-price and she shall be his wife. If her father absolutely refuses to give her to him he must still pay the bride-price for virgins’. These verses explicitly note that a dowry, or bride-price, is a normal part of marriage negotiations. The groom pays the bride-price to acknowledge the husband’s indebtedness to his wife’s parents. In this passage, the payment of a bride-price for a woman who has been seduced (or raped) is the penalty that ensures some protection for women. For women in this time, a good marriage is the best protection against a life of poverty, but the loss of virginity before a marriage is finalised damages the woman’s chances of making a good match. Therefore, this law discourages men from seducing a woman to force a marriage match.
Leviticus is often considered the law-book. However, the bulk of the laws in this book relate to cultic traditions, or the laws of the priests. The only reference to marriage in Leviticus is in Chapter 21:13 where it says that the priest must marry a virgin from his own people. He is not allowed to marry a widow or a prostitute, and he is not allowed to marry outside of his family line. This is to protect the purity of the priestly lineage. It should be noted that the priests were the ones writing this, so they have a invested interest in keeping power within the family.
Chapter 18 does contain a list of seventeen laws detailing people with whom you are not to have sexual relations, as well as the admonishment to not sacrifice children to Molech. Chapter 20 has a similar list of unclean sexual relations but none of these is placed directly within the context of marriage. These laws probably would be used to dictate who you can marry, and it is worth noting that the prohibitions in Chapter 20 are not balanced by relationship status. For example, there is a ban on sexual relations with a paternal aunt (father’s brother’s wife) but not a maternal aunt (mother’s brother’s wife). This is because the paternal relations belong to the patrilineal household, but the maternal one’s do not. This indicates that marriage, or at least sexual relations, within the household were banned. Further, the prohibition against marrying your brother’s wife in verse 16, is a direct contradiction of the Levirate laws attested in Genesis (and also in Ruth).
The book of Numbers follows the Israelites as they wander through the desert under the leadership of Moses. It has numerous lists of the tribes of Israel and the way that they are to be ordered while travelling and in the camp. It has very little to say about marriage. There are three main passages in chapters 5, 31 and 36.
The first passage contains a test for unfaithful wives. The suspect wife is taken to the priest by her jealous husband who administers a poison. If the poison has no effect, she is innocent. If it causes pain, then this is the ‘consequences of her sin’. (Num 5:31) It is thought that this ‘test’ works a little like the morning-after pill, and ensures that any potential pregnancy will be aborted, so that any future offspring will legitimately belong to the husband. It should be noted that this passage places no guilt on the husband, whether he is proven right or not. The woman bears all the guilt, regardless of the outcome.
In Numbers 31, all the virgins of a conquered town may be kept as plunder, and taken in marriage. Virgins are presumably acceptable because this ensures again, that the offspring will legitimately belong to the Israelite husband. All other women, men and children are to be put to death.
Lastly, we are told of the daughters of Zelophehad, who petitioned the elders to be counted in the division of Israelite land. Their father had died and cannot take his share, so they ask for his share to be divided amongst them. The initial petition is found in chapter 27, and in chapter 36 we are told that this petition has been granted, on the condition that the daughters marry within the tribe so that the property is maintained within that family line. In this way, throughout the book of Numbers marriage is a process that ensures property rights stay within the male lineage of the family. Women are only important as bearers of legitimate male offspring.
Deuteronomy, literarily a second law, is thought to be written by a different author(s) to the proceeding four books. It is essentially a recap of the story so far, but when we look at marriage customs contained here, we start to see a number of new ideas.
In Deuteronomy, we see the emergence of the idea that people should not marry outside of the tribes of Israel. (Deut 7:3) This is in contrast to earlier traditions that require the stranger to be bought into the family, remembering that the Israelites themselves where once foreigners. (Ex 22:21, 23:9; Lev 19:34) This is evidence of two traditions – endogamy and exogamy – that run throughout the Old Testament. Endogamy, is the requirement of finding a spouse within the tribes of Israel; exogamy is the acceptance of marrying foreigners and bringing them into the household, community and tribe. These varying laws point to multiple authorship and traditions within the Scriptures. The fact that the differing traditions have been recorded and therefore endorsed by the biblical tradition is very important in this debate. It shows us that we need to be very careful about insisting on one definition of marriage as traditional or biblical because there is clear evidence of multiple, and opposing traditions in the text.
This prohibition of exogamy in chapter seven is, however, lessened in chapter 21:10-14. Here, we are told that if you find an enemy woman who is a virgin and attractive, bring her home. Shave her head, trim her nails and take away her clothes. Give her a month to mourn her family, and then you can sleep with her and make her your wife. (Note that here there is no bride-price to be paid, and marriage is legitimised by sexual union). If at this time, you decide you do not like her, send her away – don’t sell her, or treat her like a slave, but you don’t have to put up with her anymore. Even though she probably cannot go home, or find another husband, or have any form of real protection.
In chapter 22:13-30, a man who decides he doesn’t like his wife after sleeping with her, and who has slandered and bad mouthed her, can be challenged by her parents. The stained wedding sheets show proof of her virginity before the marriage, which makes it legitimate. When the parents provide the evidence, the unhappy husband shall be fined and forced to continue to live with her. He is not allowed to divorce her. This prohibition against divorce is for the wife’s protection because her ability to gain a new husband after she has been given a bad name is virtually nil. If the parents fail to provide proof of her virginity, she can be stoned … because her husband doesn’t like her anymore.
Following this passage is the law that states that the man who seduces an engaged woman is to be stoned to death. If it happens in the city, both parties are killed, because she should have cried louder for help. If it happens in the country, only the man shall be killed. If a man rapes a girl who is not engaged, he must pay the bride-price and be wed, and again they are not allowed to divorce.
In chapter 24, a woman who is divorced by her first husband cannot marry him again if her second husband divorces her, or dies. Also, a recently married man must not be sent to war for a year, so that he may stay home and ‘bring happiness to the wife he has married’.
The levirate law, that a man may marry his brother’s widow is outlined in chapter 25. The explanation is that the purpose of this law is that the dead man’s property is maintained within the family line. This passage tells us that the man can decline to marry the widow, but first he will be talked to by the elders, and then she is allowed to spit at him in the town square so that everyone knows how he has disgraced the family line.
What Does This Mean?
These passages point to what a biblical marriage might look like. In the beginning, there was no law or legal construction of marriage. Rather, Adam and Eve cleave to each other and become one flesh. The word to cleave (dabaq) is the same one used in the story of Ruth and Naomi. It is also often used to talk of people cleaving or clinging to God and his commands. (Deut 10:20, Deut 30:20, Josh 22:5, 2 Kin 18:6, Ps 119:31). It is the same word that Sechem uses about Dinah, in the story in Genesis. This word is about people drawing as close as possible to another, or to God. It encourages us to think about loved ones coming together in a house-hold, or family-type relationship. Therefore, biblical marriage is about forming a family.
Marriage is also about sex. In Genesis, Adam and Eve become one flesh. They are united in a shared act that produces intimacy, and intimacy encourages us to look after each other. The list of prohibited sexual partners in Leviticus, with their repeated references to nakedness, suggests that this intimacy should be protected and valued. It also indicates that sexual attraction and activities were occurring outside of approved marriage relationships, and that this threatened the well-being of the whole household. This is true today as well. Infidelity undermines the trust and commitment between partners. It interferes with the stability of the connection, and therefore the family.
The laws related to virgins and inheritance suggests that marriage is about procreation, not for the sake of the children, but for the preservation of inheritance and property within the household, and tribe. The woman becomes the property of her husband at the time of the engagement, and any transgression towards her is against the value of his property. Similarly, the levirate laws, and the case of Zelophehad’s daughters, show us the importance of land being retained within the family, even if the patriarch dies without a male next of kin. Property is important because it allows the tribe to provide food for all its members. The Israelites of bible times were subsistence farmers, and everyone in the family contributed to the sowing, growing, reaping and preparation of food. There were different roles, but they were all interconnected. Therefore, marriage is about protecting the household’s food supply.
The latter books see the development of laws designed to protect women from being cast off by a dissatisfied husband. The inclusion of these laws shows us that some men were not looking after women with integrity. Israel was a patriarchal society, where the men held all the power and authority. Only men can issue a certificate of divorce, and only men were involved in the arrangement of a marriage. This left the women in a vulnerable position. The laws of Israel consistently insist on justice and mercy for the poor and oppressed. In this way, the laws against divorce (Deut 22-24) were designed to protect women from being cast off, because of ‘the hardness of men’s hearts’ (Matt 19:8). Exodus 21:10-11 gives us a clear indication of the biblical basis for marriage, ironically by providing the just reasons for a woman to seek a divorce. It says:
‘If he takes another wife to himself, he shall not diminish the food, clothing or marital rights of the first wife. And if he does not do these three things for her, she shall go out without debt, without payment of money.’
The Israelites of the biblical time understood that marriage was about providing food, clothing and intimacy. This provision was true if you had one wife or twenty. The failure to provide these things broke the covenant or promise of marriage, and allowed the woman to seek to find shelter, safety and provision elsewhere. The bible does not insist on one man and one woman, it does not insist on the biological production of children, and it does not provide a template for what marriage should look like. Rather, it concentrates on prohibiting acts that leave individuals vulnerable and alone. Within this understanding, marriage can be promoted as holding to the biblical ideals of providing intimacy, protection and support for all members of the household, regardless of gender or sexual orientation.
Within the text we see changes to the marriage act – endogamy vs exogamy, no divorce for any reason to divorce under some conditions, inheritance for only men vs inheritance for some women.
There have been many other changes since the end of the writing of the scriptures. All of these laws were developed within a patriarchal society that gave men authority over women’s lives. That has changed. Women and men are now equal under the law, and our laws reflect this. In these stories, the man mostly chose his wife. That has changed. Now, women and men together have to consent to marriage. A number of these laws implicitly endorse polygamy. That has changed. We now only recognise the union of two people. In many of these marriages, the bride was a young girl. That has changed. We now insist that all parties to a marriage are legal adults. In these stories, it is the men who automatically inherit property and wealth. That has changed. Now men and women are equal in terms of inheritance laws. In all these stories, there is assumed heteronormativity. That has changed. Now, families are made up of all sorts of combinations of age, race, and gender. To insist on one ‘biblical’ definition is to be ignorant of what the Bible in fact describes.
Marriage has a long and ancient tradition, but we must not be blind to the historic ideas that underlay it. Marriage has always been contextual, and has changed to fit the circumstances of society. Therefore, in following this tradition, we should change the marriage laws to fit our society, and to include any two consenting adults, regardless of gender.
There are some things that shouldn’t change, however. The biblical text focusses on joining together, having sexual relations, and the protection of the tribe through strict property rights and inheritances. What this means is that our current laws are not biblical, because they fail to provide property protection for same-sex families. Wouldn’t it be good if the law were changed to fit this biblical picture of marriage?
The two primary biblical texts being used by the No camp in the same-sex marriage debate are Genesis 1-2 and Matthew 19. In what follows, I will concentrate my attention on the Matthew passage. There is no actual definition of marriage in the bible, and so these two texts are used to derive a definition, whether justifiably or not. The danger is that we end up with a definition that fits in with our cultural and social expectations.
Let’s start with a little background to Matthew. Scholars think that Matthew was written in the last part of the first century. The original manuscripts are anonymous, although we know that ‘Matthew’ was a Jewish Christian, writing in the period after the Jewish-Roman war, and after the destruction of the Second Temple. It is important to note this because the Gospel of Matthew is a text that pre-supposes a Jewish perspective, and many of the passages assume a knowledge of Jewish culture from this time. Chapter 19 is a good example of this.
Matthew is particularly concerned with proving that Jesus is the Jewish Messiah that they have been waiting for. So, he starts his gospel by providing a genealogy that shows a link to King David. He also notes the Virgin birth, and the visit of the Magi to demonstrate that this is no ordinary birth. (No shepherds here though). The divinity of Jesus is placed in contrast to the religious authorities who are trying to prove Jesus is a fraud. So, after the initial introduction, Matthew spends a number of chapters talking about what Jesus taught, and those that he healed. It is in this way that he demonstrates who he believes Jesus was. In 5:32 he notes that Jesus says
‘But I say to you that anyone who divorces his wife, except on the ground of unchastity, causes HER to commit adultery; and whoever marries a divorced woman commits adultery.’ Matt 5:31-32
Why does a man divorcing his wife cause her to commit adultery? Well, a woman who is without husband is often without protector. She is vulnerable. The best way to deal with this vulnerability is to remarry, but the illegitimate divorce makes the new marriage illegitimate also. This piece sits within a group of explanations of the laws. This chapter talks about the law, murder, adultery, divorce, oaths, and revenge, but it starts with the beatitudes (Blessed are the….) and ends with the injunction to love everyone, even one’s enemies. In this way, the law is always to be understood as bounded by love.
By chapter 9, we see the emergence of the theme of anger towards Jesus from the Pharisees and the scribes culminating in the crucifixion. The Pharisees are the ruling leaders; the scribes spend their days writing out copies of the Hebrew Bible, so both of these groups are very familiar with the law. Further, these two groups are consistently rebuked throughout the New Testament, for enforcing the law without love, mercy or grace. By the time we get to chapter 19, Matthew shows us that the scribes and the Pharisees are consistently testing Jesus on his of the knowledge law, so that they have a something to charge against him.
So, in that context this is the passage that we are considering, as translated in the NRSV.
When Jesus had finished saying these things, he left Galilee and went into the region of Judea to the other side of the Jordan. 2 Large crowds followed him, and he healed them there.
3 Some Pharisees came to him to test him. They asked, “Is it lawful for a man to divorce his wife for any and every reason?”
4 “Haven’t you read,” he replied, “that at the beginning the Creator ‘made them male and female,’[a] 5 and said, ‘For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh’[b]? 6 So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate.”
7 “Why then,” they asked, “did Moses command that a man give his wife a certificate of divorce and send her away?”
8 Jesus replied, “Moses permitted you to divorce your wives because your hearts were hard. But it was not this way from the beginning. 9 I tell you that anyone who divorces his wife, except for sexual immorality, and marries another woman commits adultery.”
10 The disciples said to him, “If this is the situation between a husband and wife, it is better not to marry.”
11 Jesus replied, “Not everyone can accept this word, but only those to whom it has been given. 12 For there are eunuchs who were born that way, and there are eunuchs who have been made eunuchs by others—and there are those who choose to live like eunuchs for the sake of the kingdom of heaven. The one who can accept this should accept it.”
There is a similar passage in Mark chapter 10, and I have highlighted one of the main differences. Mark also adds into his text the earlier teaching, that divorce causes a woman to commit adultery but does not include the section about eunuchs.
The highlighted words are very important. David Instone-Brewer in his book Divorce and Remarriage in the Bible: The Social and Literary Context argues that at this time there were two Jewish ‘schools’ of thought. One school only allowed divorce for infidelity, neglect, and abuse. These are the laws that Moses allows ‘because your hearts were hard.’ The other school had introduced a ‘no-fault divorce’ scheme. Instone-Brewer argues that the out-come of this ‘for any reason’ divorce was that women became very vulnerable. Their prospects of finding a new husband to look after them is low, and they often did not have the legal capacity to earn their own living. So, the Pharisees are asking Jesus, what are the suitable grounds for divorce?
And the response from Jesus is that there are no suitable grounds really. People were made to commit to each other, but because humans are human, there are exceptions written into the Torah. These rules protect vulnerable women from men who would divorce their wives because they burnt the tea, or because they nagged, or for any other reason that felt good. His reference to the Genesis verses is that it is not good for someone to be alone, that the two have been joined by God, and that no human should break that connection. This is not a definition of marriage. It is a recognition of the benefits of marriage, and of the legal union that protects the vulnerable parties – the woman and her children.
It should be noted that the word ‘cleave’ used to describe the joining in Genesis, is also a word used to describe Ruth and Naomi. These two women cleave together to become family. It is in this way Ruth’s son, is also Naomi’s son. What God has joined, let no (hu)man destroy.
The family unit provides protection for all who are placed under its banner. This applies to Ruth and Naomi. It applies to Adam and Eve, Abraham and Sarah, Isaac and Rebecca, Jacob, Rachel and Leah, and all the other family units we see in the biblical text. The widows, the orphans, the divorcees, anyone outside the family unit is vulnerable. And so again in Ruth we see Boaz argue for the protection of these vulnerable people through leaving some of the grain for these others to gather.
Secondly, the verses about eunuchs should also grab our attention. The term eunuch can be understood to mean people who are physically castrated, but the clause which refers to those ‘who have been made eunuchs by others’ would suggest a wider application. There have been arguments made that within this reference to eunuchs we can begin to see recognition of intersex or transgender people. It may even incorporate homosexual identities. Jesus indicates that coupling and marriage are not straightforward, or simple, even in his cultural context.
Matthew tells us that Jesus agrees that it is better to live alone, if the person can handle it, but there is a recognition that not everyone can. Those who cannot, should be supported and protected to the mutual benefit of all involved, as in the marriage relationship. As it says in Genesis, it is not good for a man to be alone, and I think that we can extend that to include women. It is not good for people to be alone.
In a modern context then, we allow all people to choose a suitable life partner (ezer kenegdo*), equals who cleave together for their common good, and for the good of any other members of their newly created family unity. And once this unit is formed, by marriage or by another form of cleaving, then no one should seek to destroy it. In fact, it is in everyone’s best interest to build it up for the common good. In this way, marriage equality could be argued from this passage, as the union of two people who have cleaved together and have become one flesh, which no human should seek to destroy this.
It is tempting to read these passages with our twenty-first century glasses on, and to argue for a plain reading of what we think is in the text. It is tempting to see the word marriage and extrapolate a definition. It is tempting to think the bible is clear, simple and straightforward, but it is not. The bible attests to all the messiness of life, and it is our pastoral duty to all people, married, single from birth, single by society, and single by choice, to seek to understand it better. And we must remember that ‘all the law and commands depend on this command,’ (Matt 22:40) to love.
*this is the term used in Genesis to describe Eve’s relationship to Adam. See: http://phroneothinking.blogspot.com.au/2009/08/genesis-218-ezer-kenegdo.html
By Malcolm McPherson
Ben Jago[i], when his partner, Nathan, died in 2015 in Tasmania, found that de facto relationships may not always be recognised as they ought. The attending police officers, the coroner and the funeral director refused to acknowledge Ben and Nathan’s relationship and Ben’s position as next of kin. Ben was refused the right to see Nathan’s body or to plan his funeral according to Nathan’s wishes. Their relationship was not even acknowledged at the funeral. “To be treated like I meant nothing to him left me feeling like part of my soul had been crushed to dust.”
The police and coroner were incorrect in law but by the time Ben realised that and could act on that knowledge, it was already too late. There were steps that Ben could have taken to minimise the risk or avoid it altogether. Not everyone has that knowledge when it is needed. The rights of those in legal marriages are generally well known and well respected.
The Australian parliament gave full recognition to same-sex de facto relationships in 2008. Many of the most vocal opponents of marriage equality support the recognition of same sex de facto relationships. But those who claim that same-sex relationships enjoy relationship equality, “exactly the same legal status and benefits”, are either misinformed or dishonest.
The differences come down to proof and contestability. The marriage certificate, or registration of the marriage, is proof that the marriage exists. The only grounds on which the marriage can be contested are that it was not entered into legally, for example, if one of the parties was still married to someone else.
On the other hand, the existence of a de facto relationship may be decided by bureaucrats or ultimately by a court based on a large body of evidence to satisfy the criteria listed in the Family Law Act.[ii] The determination is essentially subjective with different bureaucrats or courts possibly arriving at conflicting conclusions.
‘De facto relationship’ is merely a short form of the phrase, ‘de facto marriage relationship’. ‘De facto marriage’ means ‘marriage in fact’ as opposed to ‘de jure marriage’ , that is ‘marriage in law’ or legal marriage with a marriage certificate.
The phrase ‘de facto relationships’ is peculiarly Australian. In other jurisdictions where such marriages have not been included in statute law, they are called simply, ‘common law marriage’. Dropping ‘marriage’ from the phrase, ‘de facto marriage relationships’ enabled the legal fiction that de facto relationships are ‘not marriage’. This allowed the states to legislate with respect to these relationships (‘marriage’ being a Commonwealth power).
A quick look at the history of marriage reveals that our current approach to de jure marriage is based on Roman law where marriage was a contract based on monogamy (one legal spouse), and the consent of the two citizens involved. The resulting offspring had legal rights (citizenship and inheritance) not enjoyed by those born to slaves, concubines, or, later, to servants. Marriage was not to protect children but to confer rights on some offspring and not on others.
Cohabitation and sexual intercourse have also long been a means of formalising a marriage. Among the Germanic tribes, marriages were arranged by the fathers and formalised by the wife moving in with her husband and having their first act of sexual intercourse. In the twelfth century, Canon Law codified church marriage law, amalgamating the Roman and Germanic approaches, with the Roman approach dominating.
In Australia, for most people most of the time, there is no effective difference between a de facto relationship and a legal marriage. The government has no interest in the way relationships are conducted other than to recognise where there is or has been a relationship and, when it ends, to ensure the welfare of any children and the equitable distribution of property in the event of a dispute between the parties.
Unless one or both of the parties are seeking or relying on social security benefits, it is when there is illness, separation or death that the differences between de facto relationships and legal marriage become important.
It is not unusual for parents and siblings of heterosexual couples to disapprove of the relationship of a family member and attempt to contest the existence of the relationship and the rights of the partner, especially if there is a legacy involved! They are unlikely to be successful if the two people are legally married and there are no grounds to contest the legality of the marriage.
As Ben Jago’s story illustrates, same sex couples may have more need than heterosexual couples of the clarity and certainty that legal marriage offers because of homophobia that exists in the community and in our families.
De jure marriage has the effect of protecting the rights of both partners to be kin to each other overriding the kinship claims of their biological families. Having to fight with a partner’s parents or siblings about the right to visit their partner in hospital, to determine when the life support machine is turned off or who may organise the funeral adds unnecessarily to the stress and grief of the situation. Those rights may be respected by the hospital, the police or the coroner – or they may not. It should not be necessary to fight at times when one is stressed or grieving.
Australia took the first step towards marriage equality nine years ago by recognising one kind of same-sex marriage. It only remains to extend that recognition to ‘de jure marriage’.
Do you remember the ad with the dentist who can’t show you his face on television?
Well, I feel a bit like that. I am employed by a faith-based organisation, and, as a condition of my employment, I had to sign a contract that says I will adhere to the *denominational* ethos in all aspects of my life. I was actually concerned about signing, given my clear and unequivocal support for LGBTIQA concerns, and my less than orthodox views on sexuality, gender and marriage, not to mention the fact that I am a strident feminist. So you will find no reference to my employment on my Facebook page. I keep my privacy settings quite high. And my blog has a generic name, and no clear identifiers. The last time I was employed by a faith-based organisation, I quit because of the complete lack of integrity shown by the leadership. You might say I am holding my breath this time.
Not usually one to back away from an argument, I find myself unwilling to engage in conversations at work, because I don’t want to hear the same tired old arguments, and not be able to respond with my honest opinions. This is true of the current marriage–equality vote, but it was also true in response to the recent Royal Commission on institutional child abuse, the churches treatment of women, and other social justice issues. The bum-covering and protestations of innocence – in clear cases of harm and guilt – make me furious.
However, I am also one who tends to think that working from within an organisation to change it is much more effective than working from without. So, for the moment, that means holding my tongue until I have built up some social capital, and my employment is less tenuous. I am aware that choosing to say nothing gives tacit endorsement to oppressive views, and that evil flourishes when good people do nothing. So, escaping into my office to avoid difficult conversations feels like complicity.
If I was sure there would be no repercussions this is what I would say:
- I have studied the texts. I have read about historical gender and sexual identity. I don’t agree with the traditional interpretations any more.
- This is not about children. This is not about other unions. This is not about church and state.
- This debate is asking us whether all members of society should have the same access to legal protections within a certified, monogamous union.
- The way the church deals with this will impact people. Within and without. Theists and atheists. Adults, teens and children. Actions speak loudly.
So, if the church chooses to sack people because they enter a gay union, or if they vocally support people who do; if they fight to deny one small segment of the population equal rights, it will send a clear message that they believe God’s love is contingent, that some are born more worthy than others, and that God endorses discrimination. The message of these actions will drown out any attempt to speak a message that God is love. Is that what we really want?
By Katie Shead
There is currently a ‘respectful’ debate on whether or not two people of the same sex or gender should be allowed to marry. Regardless of my own views on the subject, there is one major problem with this ‘respectful’ debate: it is not respectful at all.
The attitudes of some in the church towards LGBTQIA+ people, both before and after the announcement of a postal survey of the Australian public, has been exceptionally harmful, and, I would suggest, un-Christ-like. This has certainly been my experience as a member of a Sydney Anglican church. At this point in time, I’m less interested in how you intend to vote.
What concerns me is that one of the almost certain side effects of the NO campaign is the creation of atheists, or, at least, of people who will want nothing to do with what they deem to be a hypocritical religion that preaches love from the pulpit one Sunday, while preaching hate the next; a religion that asks ‘what would Jesus do?’ and then ignores the answer.
The Jesus of the Gospels accepted everyone. He ate with prostitutes and tax collectors, he touched lepers, and shied away from no one. What would Jesus do in Australia today? Would his focus be telling LGBTQIA+ people that they want to abuse kids by adopting them, or would it be letting them know that they are wonderfully made, and loved by God?
Jesus died for all the peoples of the world, not just those who are cisgender and heterosexual. All. He offered forgiveness and restoration of relationship with God to all. He showed us this when he was faced with a man who couldn’t walk and told him ‘your sins are forgiven’ before healing his legs to show that he had the power to forgive sins.
This debate is strengthening a wall between LGBTQIA+ people and Jesus, and that wall is the church.
The church is stopping people from coming to Christ because of its treatment of LGBTQIA+ people. People are watching the actions of the church, now more than ever, and they’re not up to scratch. The church’s actions are also driving away Christians who can no longer stand the hypocrisy of an institution that seems to be no more loving than those who nailed Christ to the cross.
Of course I know that not all congregations condone this open season on LGBTQIA+ people, but when people look at the church they see those who shout the loudest, and, at the moment, the voices of those who cry out with the love that Christ lavished on us are in danger of being drowned out by those more concerned with the personal lives of others than their temporal and eternal well-being.
Cry out, let your voice be heard and remind both the Australia church, and society more broadly, that ‘while we were still sinners, Christ died for us’ (Romans 5:8). To those supporting the NO campaign I would suggest thinking very hard about the impact that your words will have on the Australian people; it may not be what you intend.