Gay Marriage and the Feminist critique
In her discussion of same sex marriage, Catherine Donovan (2004) argues against same sex marriage, drawing upon several feminist critiques of marriage as a social institution. Critically evaluate feminist concerns about the institution of marriage, and make a case as to why this institution should be opened to same-sex couples, or should perhaps be widely disbanded. (In your answer you should consider the available Australian statistical data on things like domestic labour, childrearing, and work in families.)
Catherine Donovan is against same sex marriage for two reasons, the first being that marriage is a privileged social and economic contract which reinforces inequalities between men and women. Secondly because she believes that the model of love represented by marriage is held up unquestionably as the ideal to which we should aspire to and this reinforces a diminished position for other types of kinship relations (2004).
But is this grounds to deny the lesbian, gay, bisexual and transsexual (LGBT) community access to the right to marry? In my view, whilst I agree with Donovan’s critique of marriage, and am sympathetic to her calls for the abolition of the intuition, this is not grounds to deny the LGBT community a human right. Further whilst I support the cultural abandonment of marriage as a legal institution, this change must occur at a social, economical and cultural level before a legislative level, otherwise the abolition of marriage would be a denial of the rights as set in the Universal Declaration of Human Rights (UDHR) and thus imposing a ban or abolition of marriage would be oppressive in nature.
To begin I will analyse the text of the UDHR in relation to Australian law and whether or not the ban is justified. Secondly I will analyse Donovan’s position in depth and explain why some of her points are very valid, but not enough to seek the abolishment or disbandment of the legal institution.
Are the rights of LGBT people being denied currently under our legal understanding of the rights set out in the UDHR and Australian law? The correct answer is no.
Article 2 of the UDHR states that everyone, by virtue of being a human being is entitled to the rights set out within the declaration, without limitation of any kind. (United Nations, 1948). This followed by article 16 which states “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” (United Nations 1948) which from afar would seem to imply that in Australia, where there is an active ban on same-sex marriage, that LGBT people are being denied a human right.
However the declaration its self does not state who individuals can marry. It merely states that they have a right to marry. This is of paramount importance when interpreting the law, because under the Australian Marriage Act 1961 which was amended in 2004 by the Howard government, marriage is defined as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life“. With these two in place, currently same sex couples are not being denied the right to marry. Marriage is between a man and a woman, and all LGBT people have the right to marry a member of the opposite sex.
The question must then be focused on, is the definition of marriage appropriate, or does it unnecessarily discriminate based on sexual orientation? Is it appropriate that we deny same-sex couples the opportunity to do what heterosexual couples do, along with all the social and economical benefits? There are many arguments for this from the conservative side of political discourse. Claims such as it is against nature are hardly worth discussing as sexuality and sexual orientation are constructed sets of social roles (Foucault 1990, as cited in Donnelly 2003).
Others such as it is against tradition or undermines the institution of marriage itself are also hypocritical because the statistics of data show that the median length of marriage to divorce for divorced couples was 12.5 years in 2007 where 47,963 were granted nationally (ABS 2008). Surely with such statistics in mind heterosexual couples are undermining the institution as well, by their logic, heterosexual couples should be denied the right to marry as well.
Truly the only objection which has any sound reasoning to stand on is found within the UDHR its self. Article 29 states “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing … public order and the general welfare in a democratic society” (UN1948). If a nation were to invoke article 29, the definition of marriage could be upheld to only mean the union of a man and woman because it suits the purpose of securing public order and general welfare in a democratic society.
But this would be in stark contrast to current Australian values on the matter of same-sex marriage. A recent Galaxy Research poll conducted between 2009 and 2012 found that 64% of Australians supported marriage equality (2012). Thus article 29 cannot be used, as allowing same-sex marriage would not be a threat to the general welfare or public order of Australia’s citizens.
Finally, Jack Donnelley makes the compelling and powerful point of “Even accepting, for the purposes of argument, that voluntary sexual relations among adults are a profound moral outrage, discrimination against sexual minorities cannot be justified from a human rights perspective. “Perverts”,” “degenerates,” and “deviants,” have the same rights human rights as the morally pure and should have those rights guaranteed by law… Human rights do not need to be earned, and they cannot be lost because of one’s beliefs or way of life are repugnant to most others in society. In fact the real test of human rights comes when a state of society deals with unpopular or despised deviants rather than those comfortably in the mainstream. Likewise it is those on the social margins – especially when they have been forced to the margins – who have the greatest need and the most important uses for human right,.” (2003).
So why is this relevant to the feminist critique of marriage and in particular Donovan’s use of it to oppose same-sex marriage? Feminists do not seem to hold such negative views of same-sex couples after all – it is because this is an issue of human rights.
Donovan’s first reason that in UK society it is a contract that reinforces inequalities between people depending on the way they and live their personal lives is irrelevant. The key word is depending, and that word assumes the position that marriage does not necessarily need to be a contract which reinforces inequality between two partners. Thus, the notion that same-sex couples should be denied the right to marry each other because marriage may mean one of the members is treated unequally is irrelevant.
When Donovan states “…ceremonies can still exist but in the knowledge that they are optional and not linked in to law or economics as a way of setting the relationship apart from others and privileging it. We do not need the legal marriage contract that attributes morally superior values to the married couple relationship in order to celebrate our loving relationships. All of our relationships need respect, recognition and the opportunity to safeguard them legally and financially.” (2004) I agree completely and I do agree that the current legal and economical benefits that are granted to married couples should be afforded to other kinship groups of nonrelated, or single parent varieties. But this is a change that needs to occur at a social, economic and cultural level, not at a legislative levels which abolishes marriage, or the legal recognition of marriage. Outright imposing the disbandment of marriage would be a violation of the UDHR and human rights in general.
Granted by changing the benefits to apply to people of other kinship varieties, we are taking a step towards changing the cultural values which place the married couple at the top of the “hierarchy of relationships” however this is still no reason to deny same-sex couples the right to marry. For so long as there are adults of full age who wish to enter into the institution of marriage (and there are many in 2007, there were 116,322 registered marriages the highest number of marriages registered in a single year since 1990(ABS 2007)), they must be allowed to marry, for it is a human right. The answer is to change attitudes towards marriage, and educate the public of the effects the institution has for society, not to impose a ban on the practice. Such a ban would step on the freedom of individuals and deny them the rights as set out by the UDHR.
And even if we for the sake of argument were to agree that marriage should be abolished or disbanded, it is not something that would happen soon, and for so long as heterosexuals are granted the right to marry and homosexuals not, then given the reasoning provided earlier, opposing same-sex marriage would not be a step towards disbanding marriage altogether, instead bolster support for it from oppressed sexual minorities.
Secondly she believes the model of love that represented in marriage should not be held up unquestionably as the ideal to which we should all aspire, continuing to state that we should be cautious about embracing a model of love with a troubling history.
She justifies this by stating that the model of love represented by marriage, because of its private nature, facilitates physical and mental abuse. Claiming that violence in intimate relationships is extraordinarily ordinary. But is this because of marriage? Is marriage a cause for this form of violence or are there other factors in play?
Sociological scholarship on domestic violence is characterised by substantial controversy (Anderson 1997). Feminist sociologists contend that issues of gender and power are the ultimate root of intimate violence (Dobash & Dobash 1979 as cited by Anderson 1997). Yet sociologists from other substantive traditions such as family sociology argue that gender and power is just one variable in a complex network of reasons such as socio-demographic characteristics (Gelles 1993 as cited by Anderson 1997). If this is the common discourse in sociology, then surely marriage its self as an institution does not necessarily need to be the reason for domestic violence, nor is it the cause of domestic violence. The sociological findings and discourse do not back up Donovan’s point.
“Family violence researchers contend that aspects of the structural environment influence individual propensities for domestic assaults. Feminist scholars argue that domestic violence is rooted in gender and power and represents men’s active attempts
to maintain dominance and control over women. The findings presented here suggest that both of these explanations are valid” (Anderson 1997)
Donovan states “We need to discuss what love is and could be and endeavour to create new models of love that preclude the possibilities for violence occurring and/or that facilitate challenging the privacy that protects it“(2004). I agree, and by legalising same-sex marriage we are indeed creating and validating new models of love that preclude some possibilities for violence occurring. Namely we have removed the aspect of gendered power relations from the equation by definition. The aspects of socio-demographic factors and privacy however are not aspects inherent to the institution of marriage (cohabiting couples have private lives as well), and are issues which need to be tackled through economic policy, not the institution of marriage.
Again however we must return to the crux of the matter, which is that this is a matter of civil human rights, and having the definition marriage stay as the union between a man and a woman is not fair. Whilst marriage is an institution which may reinforce inequalities based on gender roles, that is not a reason to deny the LGBT community the rights they have as human beings, even though it may be enough to seek the cultural abandonment of the institution. The notion that marriage is an institution which facilitates or is the cause of domestic violence is not backed up by the research, and again irrelevant to the rhetoric and legal understanding of the human rights movement around the world. If we truly wish to see a change in domestic violence and society to a more rights respecting and free world, then we need to tackle the problems of sexism and social stratification which leads to the socio-demographic conditions for such violence. Denying the LGBT community access to the institution of marriage is not the answer.
Donovan, C. (2004) ‘Why Reach for the Moon? Because the Stars Aren’t Enough’, Feminism & Psychology, 14(1), 24-29. doi 10.1177/0959-353504040298
Australian Bureau of Statistics. (2008) 3307.0.55.001 – Divorces, Australia, 2007. Retrieved from
Australian Bureau of Statistics (2008) 3306.0.55.001 – Marriages, Australia, 2007. Retrieved from
United Nations (1948) Universal Declaration of Human Rights. Retrieved from
Commonwealth of Australia (1961) Marriage Act 1961. Retrieved from
Donnelly, J. (2003) ‘Nondiscrimination for All, The Case for Sexual Minorities’ Universal Human Rights in Theory and Practice (2), 225-241
Galaxy Research (2012) Conscience Vote on SS-M, Prepared for Australian Marriage Equality. Retrieved from
Anderson K.L, (1997) Gender, Status, and Domestic Violence: An Integration of Feminist and Family Violence Approaches, Journal of Marriage and Family Vol. 59 (3), 655-669