Summary
The Government's proposal to introduce same-sex
marriage seems to rest on reasons of equality, stability and convenience. But
on closer inspection, these are respectively incomplete, speculative and
negligible. As currently defined, marriage secures the equal value of men and
women. It also promotes the welfare of children. By contrast, the new
definition of marriage will unavoidably call into question its exclusivity, its
permanence and even its sexual nature. Such an unravelling of marriage is too
high a price to pay for a proposal which fulfils no practical legal need.
On 15 March 2012 the British Government announced
proposals to allow two people of the same sex to enter into marriage by way of
civil ceremony.[1] The responses of major Protestant churches to the
proposal have depended substantially on arguments rooted in Scripture and
Christian tradition.[2] There is nothing wrong with this. In a
multi-faith democracy we should be encouraged to disclose our deepest
convictions; and where a majority of the population still identify themselves
as Christian,[3] one can expect Christian convictions to carry some
weight. However, plural democracy will only survive if we also offer each other
reasons we can expect each other to share.[4] This is all the more
important in an area which shows signs of collapsing into a 'culture war' in
which mutual hostility takes the place of collective rational deliberation. If
the only reasons against (or for) same-sex marriage are 'ideological' or
a matter of gut reaction then all we are left with is mutual incomprehension.[5]
The purpose of this paper is to set out a
non-religious case for retaining the current legal definition of marriage. It
does not seek to question the morality of same-sex relationships, the provision
of civil partnerships, or the current law prohibiting discrimination on grounds
of sexual orientation. Rather it seeks to answer the fundamental question:
should we think of marriage as the sort of arrangement two people of the same
sex can enter into? Clearly, a same-sex partnership is like a marriage
in some respects, but is it indistinguishable? What, then, is marriage?
The common law has always defined marriage as the
voluntary union for life of one man and one woman to the exclusion of all others.[6]
Parliament has altered the age at which people may marry, the family
relationships within which marriage is prohibited, the formalities by which
marriage may be commenced, the proprietary and financial consequences of
marriage, the extent to which aspects of the common life of husband and wife
may be enforced by law, and the circumstances and process by which a marriage
may be dissolved.[7] But the essential definition of marriage itself has
remained unchanged.
At root, the meaning of marriage is socially, not
legally, defined. When a couple decide to get married, they do not start
negotiating the clauses of an open-ended contract. Rather, they assume that
there is a pre-existing and familiar type of relationship they are about to
enter. Marriage has socially-given expectations, purposes or goods, which are
intrinsic to the relationship. This is what we mean by saying that marriage is
a social institution. The legal definition of marriage reflects and
supports this social consensus, and it seems fair to assume a rather close
relationship between legal form and social expectation. Changing the legal
definition of marriage will likewise reflect and support a different view of
what marriage is and what it is for.
The Government was therefore right to accept that
everyone has a stake in its proposal, but disingenuous in distinguishing
between 'civil' and 'religious' marriage. Legally, the distinction is
non-existent: marriage may be entered into by way of civil or religious
ceremony, but the status and implications are identical.[8] Socially, as
well, we don't think of people as 'religiously married' or 'civilly married'.
They are just 'married'. The debate about same-sex marriage is a debate about
using law to change the meaning of the social institution of marriage. And that
affects everyone.
The argument from equality
Ideas of equality dominate the Government's proposal, which also
speaks in terms of 'fairness' and 'rights'. In simple terms: the current law of
marriage discriminates on grounds of sexual orientation.[9]
Discrimination on grounds of sexual orientation is unjust, so the current
definition is unjust. The same idea underlies the suggestion that same-sex
partners are 'banned' from marrying.
This argument assumes what needs to be proved.
Any law which sets criteria for anything discriminates. When the law
discriminates on grounds of a 'protected characteristic' (such as sex, race,
age, religion or sexual orientation) there is, of course, a presumption that
the discrimination is wrongful. In most public contexts, such as political
life, business or employment, these distinctions should not be drawn. But
sometimes it is right to draw distinctions even on these grounds. For example,
the law of marriage discriminates on grounds of age. One must be at least 16
years old.[10] In our society, we do not consider this discrimination to
be unacceptable, because it is justified. It is right that children should not
marry. The law of marriage also discriminates on grounds of kindred and
affinity: one cannot marry a parent, sibling or child, nor a range of more
distant relations.[11] But once again, we think this is justified -
marriage between close blood relatives is medically unwise and in any case
sexualised families are abusive and oppressive - so we do not think of it as
discrimination. It is just good moral sense. We need to watch out for
unjustified slippage between 'discrimination' as the drawing of any distinction
and 'discrimination' as the drawing of an inappropriate distinction.
If anything, 'equality' proves too much. Whatever
its causes, human sexuality is complex and variable. The commonest form of
minority sexual orientation would appear to be bisexuality.[12] This is
also a matter of degree. Many people have had at least some fleeting experience
of attraction to someone of the same sex. There are people not sexually
attracted to others, or who wish to enter long-term stable but non-sexual
relationships of companionship. There are also people who only wish for brief
sexual encounters; some of whom are prepared to pay for them. And there are
those who enjoy the challenge of maintaining multiple sexual relationships
simultaneously. Self-awareness, desire, social convention, choice, behaviour
and identity are all intertwined in complex ways.[13] The normal
condition of human sexuality seems diverse and even chaotic at times.[14]
It follows that for marriage to be 'equal' on
grounds of sexual orientation, the law should not be restricted to just one
type of sexually-intimate companionship. Why can't a man marry two wives? Why
isn't prostitution treated as a form of short-term marriage? Why, for that
matter, should single people be deprived of the chance to pass on their pension
rights to a best friend? There may or may not be reasons for drawing the legal
boundaries in any particular place, but until those reasons are stated, the
argument from equality is incomplete.
It is fair to assume that, practically speaking,
no same-sex couple would be willing to marry who are not already willing to
enter into a civil partnership. So the argument depends on the relative
stability of marriage as opposed to civil partnership. As far as the law is
concerned, the difference is slight. One enters into marriage by making a
public declaration of intent; one can enter into civil partnership by merely
signing the civil partnership document.[16]But the truth is that we
simply do not know the relative stability of marriage and civil partnership.
Civil partnership has only been available since 2005. The data so far might
even imply that civil partnerships are more stable than marriages.[17]
Even if we could show that marriages have a
greater longevity than civil partnerships, we would not have shown that
allowing civil partners to marry would make any difference. Whichever way the
data goes, it will always be more likely that relative stability is an effect
of the nature of the relationship and its social context rather than its legal
form. Furthermore, the argument is undercut by the Government's proposal to
allow a choice between civil partnership and marriage. The logic of the
argument requires all parties to take vows, not to be given a choice of legal
forms. In short, the argument from stability is speculative.
The argument from convenience
The difficulties of a small group of people are emphasised at some
length by the Government. Currently, the marriage or civil partnership of a
transsexual person is automatically dissolved on receiving their newly assigned
gender.[18] If their spouse or partner is willing to continue the
relationship, a new civil partnership or marriage must be entered into. By
making marriage gender-blind, this will no longer be necessary. Rather, the
parties could choose to affirm and continue their marriage.
This problem affects only a tiny number of people[19]
and the inconvenience of entering into a new civil partnership or marriage must
be minor compared to the trauma of gender dysphoria and medical and
psychological treatment for reassignment. In any case, civil partnerships would
still have to be dissolved in cases of gender reassignment, which shows that
again the Government does not take its own argument seriously. The argument
from convenience is negligible.
The Government's proposal relies on three
arguments for changing the legal definition of marriage. They are,
respectively: incomplete, speculative and negligible. If anything, they suggest
that there should be only one legal arrangement, 'marriage', which should be
available to a much wider range of relationships than the proposal envisages.
The root of the problem is that the Government fails to address the fundamental
question of what a marriage is, and thus it fails to identify and defend the boundaries
of any new definition.
Cambridge Papers is a non-profit making quarterly
publication which aims to contribute to debate on contemporary issues. The
writing group is an informal association of Christians sharing common
convictions and concerns. However, this special issue departs from our normal
pattern by engaging with the issue of redefining marriage without any appeal to
arguments from biblical theology. This paper, like all our papers, is a
contribution made by an individual and not representative of any organisation.
END PART ONE
OF FOUR
[1] Government
Equalities Office, Equal civil marriage: a consultation, March 2012. Since
the law of marriage is a devolved matter, the proposal relates only to England
and Wales. On 25 July 2012, the Scottish Government announced its intention to
enact similar legislation.
[2] See A
Response to the Government Equalities Office - "Equal Civil Marriage"
- from the Church of England (June 2012); Response from the Methodist
Church in Britain to the consultation on "equal civil marriage" (June
2012). By contrast, the Response from the Catholic Bishops' Conference of
England and Wales to the Government Consultation on "Equal Civil
Marriage" (June 2012) relies on a 'common and instinctive
understanding of the meaning of marriage shared by people of any religion and
none'.
[3] Whether
a majority is still 'Christian' depends on how one phrases the question. In the
2001 National Census, 71.8% stated that they were 'Christian' (Office for
National Statistics, Focus on Religion (2004), Table 1). By contrast,
the British Social Attitudes Survey records a steady drop from 66% (1983) to
44% (2010) in respondents who regard themselves as 'belonging' to the Christian
religion. The 2010 survey was the first in which 50% stated that they
'belonged' to no religion. (NatCen Social Research, British Social
Attitudes 28 (2011-12), Table 12.1).
[4] Jürgen
Habermas writes critically of the pressures on religious believers to be
'polyglottal' in a plural democracy ('Religion in the Public Sphere', in European
Journal of Philosophy, 14:1, 2006, pp.1-25), but it is hard to envisage
practical alternatives.
[5] One
suspects that Hugo Rifkind speaks for many in his view that the only arguments
are theological or visceral: 'Eeeeuw is no argument against gay marriage', The
Times, 9 March 2012.
[6] Hyde
v Hyde (1865-9) L.R. 1 P. & D. 130. The laws of King Cnut (11th
century) stated that no woman could be compelled to marry a man she did not
like, or sold for money, and that no Christian man should ever have more wives
than one. See R. H. Helmholz,The Oxford History of the Laws of England, Vol. I,
OUP, 2004, p.46 and pp.44-51 for the impact of canon law on pre-Christian
Anglo-Saxon practice more generally.
[7] Stephen
Cretney, Family Law in the Twentieth Century, OUP, 2003, is the definitive
account.
[8] A
minister may refuse to marry certain couples who may otherwise marry by civil
ceremony, including divorcees, persons related by a certain degree of affinity
and post-operative transsexual people: Matrimonial Causes Act 1965, s. 8;
Marriage Act 1949, ss. 5A and 5B.
[9] In Hall
v Bull [2012] 2 All E.R. 1017, the Court of Appeal found that the
criterion of marriage directly discriminated on grounds of sexual orientation.
The case is on appeal to the Supreme Court, which may find indirect
discrimination instead.
[10] Marriage
Act 1949, s. 2. In England, Wales and Northern Ireland (but not Scotland)
parties under 18 need parental, or equivalent, consent.
[11] Marriage
Act 1949, s. 1.
[12] National
Survey of Sexual Attitudes and Lifestyles II (April 2003): 5.3% men and
9.7% women reported that they were attracted at least once to the same sex,
although more often to the opposite sex. Only 0.9% men and 0.2% women reported
exclusive attraction to the same sex. The next National Survey is due
in April 2013. One recent US study, which draws on several surveys, finds that
11% of adults acknowledge at least some same-sex attraction, 8.2% report having
engaged in same-sex sexual behaviour, 1.8% identify as bisexual and 1.7% as
lesbian or gay. See Gary J. Gates, 'How many people are lesbian, gay, bisexual
and transgender?', The Williams Institute, UCLA, April 2011.
[13] Note
that in law, 'sexual orientation' embraces the entire spectrum of
self-awareness and lifestyle: see R (Amicus) v Secretary of State for
Trade and Industry [2007] I.C.R. 1176.
[14] Recent
attempts to map the range of sexualities include the Klein Sexual Orientation
Grid and the Sell Assessment of Sexual Orientation.
[15] The
Prime Minister has also appealed to stability on a number of occasions, most
notably his speech to the Conservative Party conference on 5 October 2011.
[16] Compare
Marriage Act 1949, s. 44 with Civil Partnership Act 2004, s. 2. It would seem
that mutual vows are optionally used in civil partnership ceremonies, although
no religious service is to be used in a register office or other approved civil
premises.
[17] 5.5%
of marriages entered into in 2005 had been dissolved by their fourth
anniversary, as compared with only 2.5% civil partnerships. ONS, Civil
Partnerships Five Years On (Population Trends Nr. 145, Autumn 2011). This
may reflect a 'backlog' of stable longstanding informal partnerships. One major
Scandinavian study suggests that over time same-sex civil partnerships have
higher levels of instability: Andersson, Noack, Seierstad and Weedon-Fekjær,
'The Demographics of Same-Sex Marriages in Norway and Sweden', Demography 43.1,
2006, pp.79-98.
[18] Gender
Recognition Act 2004, s. 4(3)-(4).
[19] 260
gender recognition certificates were issued in the year 2010-2011. In only four
cases was an interim certificate issued, because a marriage or civil
partnership needed to be dissolved: Ministry of Justice, Gender Recognition
Certificate Statistics Bulletin, 29 March 2012.
1 comment:
Excellent - common sense in abundance.
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