News today of the launch of a new campaign in response to the Government’s soon to be announced consultation on same-sex marriage. Coalition for Marriage is headlined by former Archbishop George Carey, the former Lord Chancellor Lord Mackay, seven cross party MPs and four currently serving Diocesan Bishops. I would expect the key names on the signatory list to increase over the next few days as other Christian leaders and those of other faiths are brought on board.
Four points are made by the coalition.
MARRIAGE IS UNIQUE
Throughout history and in virtually all human societies marriage has always been the union of a man and a woman. Marriage reflects the complementary natures of men and women. Although death and divorce may prevent it, the evidence shows that children do best with a married mother and a father.
If marriage is redefined, those who believe in traditional marriage will be sidelined. People’s careers could be harmed, couples seeking to adopt or foster could be excluded, and schools would inevitably have to teach the new definition to children. If marriage is redefined once, what is to stop it being redefined to allow polygamy?
NO NEED TO REDEFINE
Civil partnerships already provide all the legal benefits of marriage so there’s no need to redefine marriage. It’s not discriminatory to support traditional marriage. Same-sex couples may choose to have a civil partnership but no one has the right to redefine marriage for the rest of us.
People should not feel pressurised to go along with same-sex marriage just because of political correctness. They should be free to express their views. The Government will be launching a public consultation on proposals to redefine marriage. This will provide an opportunity for members of the public to make their views known.
Of these, the second is the weakest. The “slippery slope” argument might have some merit in that currently in Canada there are legal moves afoot to de facto legalise polygamy, but this action is based not on legislation but rather judicial interpretation. There is no move in the UK to legalise polygamy, and anyway, polygamy and same-sex marriage should each be opposed on the basis of their own merits (or demerit) rather than an attempt to simply link them.
Point three though is interesting and was covered in part by an interesting article on Conservative Home last week by Andrew Lilico (published the morning after the night before when we had dinner together and discussed this very issue).
For some reason that escapes me, some people seem to want civil partnership legally re-named “gay marriage”, even though it’s socially called that anyway.Â And for some other reason beyond human ken, some other people seem to object.Â I’ve tried to understand why – and am about to give you my pitiful efforts to make sense of the debate – but the truth is that I really don’t get it.
The argument in favour appears to be that some people don’t think a civil partnership is a “real” marriage.Â And for some reason the people that worry about this think more people will regard gay marriages as real marriages if they are called “marriages”.Â But how will that change anything?Â A marriage between a man and a woman is traditionally understood as a particular kind of relationship.Â And, without getting too gory, to be a “marriage” that relationship has to be consummated in a very mechanically specific way (case law is quite clear about this; Bill Clinton would doubtless approve).Â That particular form of consummation is, by definition, not available to homosexual couples.Â So they can’t have consummated “marriages” in the traditional sense.Â It doesn’t follow that their relationships are bad – any more than the fact that a woman isn’t a man makes her bad.Â If you’re a woman, you’re a woman.Â And if you are a homosexual couple, your marriages cannot be “consummated” in the technical sense traditionally understood.Â That’s not an ethical point – it’s a purely mechanical one.
So, no matter what you call it, a gay marriage will always be a “gay marriage” and a straight marriage will always be something different.Â We can call them the same thing, if you like, but that doesn’t change the substance of the matter any more than if we insisted that men and women should always be referred to as “persons” meant there ceased to be a difference between being a male person and a female person.
This is obvious – so obvious it’s barely worth saying.Â So given that gay marriages and straight marriages are mechanically different (and cannot be otherwise), why would it matter if they had slightly different names?
And on the other side, why would it matter if they had the same name?Â Some people seem to imagine that there is some special religious content to the word “marriage”, but I just can’t see that.Â We called it a marriage when Elizabeth Taylor was on her eighth – hardly “until death do us part”!Â Â Most peopleÂ called it a “marriage” when Britney Spears was “married” for 55 hours in 2004.Â So it’s not as though we are desperately protective of the term!
I can see two very marginal concerns.Â One is that Anglican Churchmen are entitled to conduct legal weddings.Â The state traditionally claimed that that implied that any coupleÂ legally entitled to marry was legally entitled to demand of an Anglican minister that he / she married them.Â The church has always denied that the state had such legal jurisdiction – this goes back to one of those ancient and arcane church-state demarcation disputes.Â Notionally, the state traditionally claims that a couple including a divorcee is entitled to demand that an Anglican minister marry them.Â The Church’s position has always officially been that divorcees may not remarry.Â (Indeed, I even once attended a church in which the minister even objected to reading out the bans of marriage for divorcees, and did so with the preamble “Under protest, and only because it is required of me by law, I publish the bans of marriage of…”)Â The Church, though, has left it to the conscience of the vicar whether he / sheÂ would conduct such marriages.
Presumably there is some chance that, if there were one legal form of marriage including for homosexuals, some gay couple would seek to have a minister marry them, and when he or she refused, there would be a attempt to bring a court case – much as has in fact happened for registrars.Â But why couldn’t this be dealt with just as the divorcee issue has been – by sweeping it under the carpet; by the police refusing to bring the case or the courts refusing to hear it?Â The Church, remember, denies even that the state has the legal authority to make a law requiring marriage-overseeing by Anglican priests – that’s surely not a can of worms the state needs to open again now, and without its being opened there cannot be the risk identified.
The second vague quibble one might have with calling gay marriages “marriages” for legal purposes goes back to this gory business of consummation.Â If gay marriages are to be legal marriages, then we must either abandon the notion of consummation or have something that counted as “consummation” for gay couples.
Abandoning consummation would obviously involve re-writing quite a lot of case law.Â It could also be a problem for anyone that wanted to restrict consummating behaviour to after the marriage ritual.Â Those believing in consummation following the marriage ritual might want a clear line not to cross beforehand.
The latter path would be tricky for (again skating over gory matters) homosexual relationships are physically / mechanically diverse (and why shouldn’t they be?) in ways that would inevitably make defining a precise “consummation” problematic.
These quibbles seem minor to me – the number of cases likely to arise in which the issue of consummation is at stake today must be tiny.Â Â Why couldn’t we have a new category of legal contract called something else – say a “justice-based partnership” or a “covenant partnership” for those that wanted classical consummation to be part of the legal structure of their relationships and leave the word “marriage” to the rest?Â The consummation issue shouldn’t really be a bar toÂ legally termingÂ gay marriages “marriages” if anyone really wants that.
So Andrew’s point is fundamentally this – let’s just call Civil Partnerships “Gay Marriage” and maintain “Marriage” as the heterosexual union. The alternative is to have one “marriage” for same-sex and other-sex couples, but this leads us to a number of issues, not least of which is the fact that “marriage” (as in other-sex marriage) currently has the concept of consummation which cannot be replicated in same-sex unions.
I got into a twitter conversation this afternoon with the affable @enhughesiasm on the issue of whether widening “marriage” to include same-sex marriage would affect other-sex marriage. I was failing in 140 characters to get this point across, so instead I’ll have a go here. Before I begin, let me point out that a year ago I wouldn’t have argued that same-sex marriage would affect other-sex marriage, but now I’m starting to see that is not quite the case.
One issue where I’m now clear same-sex marriage does change other-sex marriage is in this area ofÂ consummation. I’ve described before how consummation is embeddedÂ implicitlyÂ and explicitly in the legal definition of marriage, and I want to pick up something from that essay to make the point about same-sex marriage altering other-sex marriage.
How then should the State proceed if it wishes to introduce same-sex marriage? It is not simply a case of a quick re-write of the law to amalgamate Civil Partnerships and marriage into one legal entity. There are greater problems that must be addressed.
To begin with, there would need to be a revision of the understanding of the place of coitus and procreation within marriage. It is all very well for revisionists to argue that marriage isÂ notÂ about orÂ should notÂ be about coitus and procreation, but the simple fact of the matter is that at the moment that understanding is implicit in English law, both within aspects of the Marriage Act itself and its references to Church of England liturgyÂ andÂ in other legislation (for example the understanding that coitus and procreation within marriage has aÂ privilegedÂ position with the birth registration legislation). In order to change this either the law needs to change to understand that coitus and procreation are optional parts of marriage (so notÂ necessaryÂ as a good of marriage) or it needs to excise any reference to it at all. The first option is tricky as it leads to a situation where two forms of marriage would exist â€“ marriage that recognises coitus and procreation as a good and marriage that does not. On what basis should such a distinction be made? How would such a distinction affect other aspects of law such as theÂ privilegeÂ of a married father to register the birth of his child? Would the distinction be made on the basis of the homosex or heterosex of the spouses involved in a marriage (which would lead to an understanding of different forms of marriage based on professed sexual identity which hardly seems to fit the aim of equality that is sought be introducing same-sex marriage) or could it be chosen at will by the spouses involved? Could such a decision ever be enforced in practice?
Now, here’s the issue. What do advocates of gay marriage want? Do they want equivalent rights or do they want the right to an identical institution for both same-sex and other-sex couples? If the first then, as Andrew Lilico quite rightly pointed out last week, they have it already in the form of civil partnerships. If however the purpose is to have the identical right then we have to address issues like consummation.
If the aim is to make marriage utterly identical for same-sex and other-sex couples then that means that there cannot be distinctions in any new Marriage Act (i.e. the legislation that defines marriage) between such couples. So when it come to Â handling the consummation of marriage, either the definition of consummation must be altered to a form that covers both forms of coupling orÂ consummation must be removed from the understanding of marriage.
What cannot happen is that the Marriage Act provides for some marriages (other-sex) to be consummated and others (same-sex) not to be. That would mean that you would have two different kinds of marriage, consummated marriage and un-consummated, and same-sex couples would never be able to have the first. This is not equality.
The alternative is to remove notions of consummation from our understanding of marriage (see the Matrimonial Causes Act 1973). This however has problems of its own, and not just for defining adultery and grounds for divorce / dissolution. As I have pointed out before, the law in England recognises consummation as an essential element of marriage. That’s why married fathers can register the birth of their children whereas unmarried fathers cannot.
Removing consummation from the Marriage Act however shows up for what it is the claim that same-sex marriage will not affect other-sex marriage. Other-sex marriage cannot but be fundamentally altered by same-sex marriage by the removal of any reference to sexual union between the spouses. Of course, for a society that has already divorced sex and marriage (as opposed to the Bible which pretty much from Genesis One assumes that sex is marriage) this isn’t a problem, but we shouldn’t just rush into such an act of changing our legal definitions (even if our societal expectations are at odds with those legal definitions) without understanding what we are actually doing.
So which is it? Do the advocates of same-sex marriage want real equality, in which case they must accept that such an act will alter the nature of other-sex marriage in so doing. Or instead, do they want a different form of marriage which doesn’t encompass obligations of consummation and the like, in which case why can’t we just rename Civil Partnerships “Same-Sex Marriage” whilst maintaining it’s clear legal distinction from traditional marriage?
What do you think?