Marriage Equality: Fisking Brendan Malone

UPDATE: Brendan has replied to some of these points in a subsequent post.

This Kiwi (The Leading Edge) blog post in opposition to marriage equality was mentioned on Kiwiblog along with the standard “it makes too much sense for any silly liberals to be convinced by it” nonsense. Turns out the original post is a lot longer than the excerpt I read on Kiwiblog, but for the sake of completeness and context I’ll look through the whole thing and analyse the arguments as they go.

In this post I want to explore a couple of important reasons why I think that rights based arguments for gay marriage are flawed – i.e. any sort of claim that gay marriage is a human right.

Sort of bothersome right from the start that Malone is addressing an argument I’d never make myself – a link to someone specifically making the argument he’s addressing would be handy. Nevertheless…

Firstly, I think there is a huge flaw in the way that some are using the word “right” in this debate.

What I mean by this is that I have heard a lot of people talking about marriage in a sense which implies that it is an absolute right for heterosexuals, and that it is only homosexuals whom marriage is denied to.

Right, from this point, for Malone’s argument to make sense, you must be imagining someone who believes that homosexuals are the only people who are denied marriage. This is where a link to these “I have heard a lot of people” would be handy. My point is that the things he’s about to say would not apply to, say, someone who thinks that marriage is denied to plenty of people in plenty of situations, but while recognising the justifications for many of those denials, does not agree that the denial of marriage to homosexuals is justified. You know, someone sane.

However this understanding is definitely not correct.

You see marriage is not afforded to heterosexuals as an absolute right at all.

A child cannot marry.

A brother and sister cannot marry.

Someone who is already married cannot marry.

More than one man and one woman cannot marry.

A father cannot marry his daughter.

A couple cannot marry without the required documentation.

A couple cannot marry without a celebrant and witnesses.

So, without even exploring the issue of gay “marriage”, we can already see that marriage has strict boundaries which cannot be violated if the two persons who want to be married wish to actually enter into a valid marriage – thus meaning that marriage is not actually something that is afforded to heterosexuals by right, instead it is something that is afforded to them on condition of them being able to meet the requirements necessary for a marriage to be brought into existence.

As usual, it’s instructive to apply the same reasoning to the denial of marriage equality to interracial marriages. “Interracial couples claim that marriage is a human right that only they are denied! But lots of same-race couples can’t marry – fathers and daughters can’t marry, brothers and sisters can’t marry, etc. So even without exploring the issue of interracial ‘marriage’, we can see that marriage has strict boundaries.”

Two important things you will see from the limitations listed above:

a) The presence of a romantic bond between the parties wishing to enter into a marriage does not override, or make null and void any of these conditions – the reason I point this fact out is because many gay marriage supporters are suggesting that a romantic bond between two people of the same gender should be all that is required for a marriage to be brought into existence. If we actually embraced this reasoning then none of the limitations listed above could be legitimately placed upon a marriage either.

Another strawman. No one is saying that a romantic bond between two people should be the only condition of a marriage, and no one is saying that a romantic bond between two people is a sufficient condition of marriage. In other words, there is obviously more to marriage than a romantic bond, and there are obviously restrictions a romantic bond does not override, and it is disingenuous to pretend that proponents of marriage equality are ignoring these things.

b) They create a framework which legitimately discriminates against certain people and situations when it comes to marriage, thus making a complete mockery of the argument that it is only two people of the same gender who wish to marry who are discriminated against by current marriage laws.

Again, arguing against an imaginary person who has a much weaker position than real people. No one is saying that it is only two people of the same sex who are currently excluded from marriage – “discriminated against”. People are saying that, while there are legitimate exclusions from marriage, being of the same sex is not one of them.

The other important point to note is that the current law does not actually prevent homosexual persons from marrying, instead it prevents ANY two people of the same gender from marrying, regardless of their sexuality – this is because two people of the same gender, regardless of their sexuality, cannot satisfy the fundamental requirement necessary for a pairing of two people to actually be a marriage.

That fundamental requirement is the potential for procreation in the pairing of the two persons.

What about inferti––

Now before you start raising objections about infertile heterosexual couples, please note that I refer to the “potential for procreation”, rather than the “ability to procreate”. This distinction is vitally important, and it is the pivotal distinction between a same sex couple and a male/female couple.

This ought to be good.

An infertile male/female couple is still a pairing with the potential for procreation, it is simply that this potential is rendered unavailable to them by an impairment of the nature of their union, however a same sex couple do not posses this potential at all because they lack the obvious complementarity that is required for a couple to posses the potency for procreation within the nature of their pairing.

This is a fine example of the kind of mental gymnastics people are prepared to perform in order to reach the conclusion that they were right all along. Extraordinary. “An impairment of the nature of their union.” Just extraordinary. What we’re being told here is that the fundamental requirement of a couple to be a marriage is their “potential for procreation”. Same-sex couples can’t be married because they can’t have kids.


Different-sex couples who can’t have kids CAN be married. Because even though their union is just as incapable of producing children as a same-sex couple is, something called “an impairment of the nature of their union” is getting in the way, so they get a pass. (One wonders if being born into a body the same sex as the person with whom you fall in love couldn’t be considered an impairment of the nature of your union just as much as being born into a body that is unable to conceive for some other reason.)

All of which is a pretty convoluted way of saying that same-sex couples just can’t be married because they’re the same sex, not because they can’t have kids.

At this juncture some might be asking “but so what, why is procreation such a big deal?”

Precisely because marriage laws are simply a legal recognition of the fact that marriage is an institution that can, and does, result in the good of children because of the potential for procreation that exists between one man and one woman. The very reason we have marriage laws in the first place is not because the state invented marriage, but because the state recognises marriage – and for the state to recognise something, that thing has to exist PRIOR to the state and have its own clearly recognized form already in place (i.e. the form of marriage is not given to marriage by the state, but rather by the potency that exists in the sexual union of a man and woman, and by implementing marriage laws the state is simply recognising that form and upholding its vital importance as a public good).

Still not seeing how infertile straight couples or post-menopausal women, etc., should be able to get married…

Secondly, in regard to the current popular trend of using the word “right” when talking about gay marriage I would humbly suggest that if you want to try and claim something as a human right, that thing actually has to first exist in reality.

Oh, I know what’s coming up. It’s great. Check this out.

Marriage definitely exists, but gay marriage does not, so in order to create gay “marriage”, you would first need to completely abolish marriage in order to create a new form that you also call “marriage”, but which is actually completely different to authentic marriage in its form – the obvious problem with doing this is you’ve actually abolished marriage in the process, meaning that gay “marriage” is not actually marriage in anything other than name only (because the form of marriage had to be destroyed in order to create gay “marriage”).

Whoo! You can’t shoot me! I’m not even playing!

The difference between marriage and gay “marriage” is that marriage is RECOGNISED by law, whereas gay “marriage” is INVENTED by law – this is a vitally important distinction, as the state has no legitimate authority to impose itself in this way upon something which exists prior to, and which does not flow from the state.

Malone’s own reasoning actually works against him here. Sure, the State didn’t invent marriage; it recognised it. And the State didn’t invent gay couples falling in love with each other and making lifelong commitments to each other; it’s going to recognise them.

Because that’s what marriage is. It’s two consenting adults falling in love with each other and making a lifelong commitment to each other – and note how I don’t have to do any mental gymnastics to account for infertile couples. Marriage may have been other things in the past – ownership of one woman or many women, ownership of kids, two families coming together, the raising of children, etc. But as it has changed in the past, in our culture, it has come to be about romantic love and lifelong commitments.

And Malone is wrong about this not already existing and having to be invented by the State. There are same-sex marriages already – they’re couples of adults in love making lifelong commitments to each other. The State is just going to recognise what’s already there.

Let me give you another example – your right to life does not come from the state, it is not granted to you by them, instead it is yours by virtue of your nature – that is, you are a human being. Your right to life was not invented by the state, but is definitely recognized by them and enshrined in law because the state has a duty to uphold the common good in order to provide the necessary just order that enables human beings to flourish.

So if the state was to suddenly start enacting laws which denied you, an innocent human being, your right to life, then the state would be imposing itself upon something that it has no legitimate right to impose itself upon, and thus it would now be working against the common good and acting in an illegitimate fashion.

This matter of state recognition versus state invention when it comes to marriage is precisely why the issue of polygamy can be validly raised in a debate about gay marriage.

Because if the state now believes that, based on nothing more than a popular whim, it has the power to completely abolish and redefine institutions that exist prior to, and independently of the state – those which are recognised, rather than invented by the state – then how can the state exclude ANY new form of those institutions without actually engaging in an act of unreasoned and totally arbitrary prejudice?

By having reasons for excluding them. And there’s no reason to exclude same-sex couples (who aren’t related, etc.).

You see, when it comes to marriage, if the state is now going to try and claim that the primary thing that makes a marriage a marriage is a romantic bond and a freewill desire from the parties entering into a marriage, then how can ANY of the following be excluded from access to marriage by anything other than a totally unfounded prejudice on the part of the state:

-Polygamous relationships where a romantic bond and a freewill desire to marry on the part of all parties is present

Yep, good point. If there are polygamous lifelong commitments going on, I’m all for them receiving equal recognition by the State.

-Relationships between two siblings where a romantic bond and a freewill desire to marry on the part of both siblings is present

Icky, but if they can prove there’s been no grooming going on and they can assure they won’t have kids, fair enough.

-Relationships between a parent and their child where a romantic bond and a freewill desire to marry on the part of all parties is present

No, you can’t prove consent there – power dynamics are too messed up.

-Relationships between two people who are already married to other people, but who wish to marry a second person in a different marriage, where a romantic bond and a freewill desire to marry on the part of all parties is present

If everyone involved consents, sure. Otherwise it’s a breach of the initial contract.

-Child marriage where a romantic bond and a freewill desire to marry on the part of all parties is present

Children aren’t consenting adults, by definition.

I am yet to hear a coherent, or even close to convincing argument from those who want to abolish marriage and remake it in their own image.

Unsurprising, given you appear to hear only simplistic arguments in your imagination rather than what people are actually saying.

Using newspeak such as “marriage equality”, or simply parroting slogans like: “marriage is a human right for everybody”, or: “not letting two people of the same gender marry is like when they used to ban interracial couples from marrying” is not actually the same thing as presenting a reasoned argument in support of your views on this issue.

That last one is actually a pretty reasoned argument. You could respond to it by explaining how it’s different, but I expect we’d get into how interracial couples can produce children and infertile interracial couples get special passes again.

The reason I am pro-marriage, and therefore opposed to any state imposition and redefinition of marriage to include pairings that can’t actually legitimately be marriages, is not because I am anti-gay, it is because I have weighed the evidence and I can clearly see a logically coherent reasoning as to why the state has no legitimate right to abolish marriage and invent something new that will also include a thing, that only exists in legal definition, called “gay marriage”.

Well, if that’s what you’re caught up on and it has nothing to do with your religion, we can sort it out right now.

  1. Your definition of what is fundamental to marriage (ability to create children) is patently ridiculous and you know it. You have to practically do mental backflips to make it fit with the reality: 14-year-old couples could have kids, infertile couples can be married, polygamous groupings could have kids, etc.
  2. My definition of what is fundamental to marriage (romantic lifelong commitment of consenting adults) fits with everything we currently recognise as marriage (including infertile couples).
  3. There are already gay couples with lifelong romantic commitments to each other. These are marriages, even if they themselves don’t call themselves married. These are marriages, even if the State currently doesn’t recognise them.
  4. When the New Zealand Parliament passes the Marriage Equality bill, it will not be inventing gay marriage; it will be recognising what’s already there.


1 Comment Marriage Equality: Fisking Brendan Malone

  1. Dean

    This pleases my brain very muchly, your reply is like champagne of the mind. Thank you for the refreshing dose of reason; Excellent points all round, and brilliant refutation of these flawed arguments made ad nauseum.


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