L'esprit de l'escalier: First Thoughts on Redefining Marriage

Earlier today, for reasons I'm not going to get into here, I needed to talk about same-sex marriage. I don't think I did a very good job of it, and rather wish I'd held my fire for a few days.

It's not been a subject I've been hugely inclined to get bothered about, which is one of the reasons I'd not responded when someone asked me on Monday when I was going to talk about the redefinition of marriage.

(The other was that I forgot: I had meant to say I'd no plans to talk about it, and then it slipped my mind.)

Intuitively, I've been rather conflicted on the topic, which is hardly surprising for someone who has a fair number of gay friends.

Instinctively...

Part of me has been opposed to it on, effectively, semantic grounds: marriage has always* meant the union of a man and a woman with the intention, in principle, of enabling the birth and rearing of children; indeed the word matrimony derives from the Latin word for 'mother' and recognises that marriage does not exist for the marrying couple, but for the sake of any children they might have.

I don't like language being changed. I realise that semantic change happens all the time, but it's normally an organic process. It shouldn't simply be the case of a State announcing that a word no longer means what it used to.

After all, the Government could announce that henceforth all housecats were to be renamed, in law, as Bengal tigers, thereby officially raising the number of Bengal tigers from little more than 3,000 worldwide to about eight million in Britain alone.  I think we'd all agree that such a change would be a charade; it would in no way alter the fact that tigers are an endangered species.

On the other hand, I tend to take a 'live and let live' attitude. I have gay friends who support the idea of the State redefining marriage for the sake of equality, and I can understand what they say about the symbolic value of such a change. If it makes gay people happy to call their state-sanctioned pair-bonds marriages, well, what harm will it do? After all, does it really make sense to say that this devalues marriage, as I've heard people claiming? I commented on this on Twitter about a week back, feeling that the horse had long bolted from Society's marital stable, and grimly observing of marriage that 'I doubt there are many things that could devalue it more than the massive divorce rate.'

And I wasn't surprised to see other Christians sharing my relative nonchalance about the subject.

And yet...

Something came up during the week, which has driven me to ponder this more seriously since Thursday morning. I've done quite a lot of reading on the subject, and spoken to a few friends -- including one of my closest confidantes, who is bisexual, politically active on LGBT issues, and living with a couple in a civil partnershop -- and have thought a lot more deeply on the matter than I'd ever done, considering angles I'd previously not even thought of.

And all my pondering's left me increasingly convinced that those objecting most loudly to the possibility of this may well be right.

That's not to say that we don't have bigger problems to deal with, just that you play the team in front of you, not the one you wish was there.

What's at issue here?

It seems to me that people recognise that, in real terms, civil partnership, as it now exists, legally bestows all the rights of marriage -- indeed, section 3(4) of the Equality Act (Sexual Orientation) Regulations 2007 make that very point:

'For the purposes of paragraphs (1) and (3), the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference in the relevant circumstances.'

This lack of meaningful legal distinction underpinned the court decision last January to support a gay couple in a civil partnership who challenged the legal right of a couple who owned a B&B near Penzance to refuse to accommodate unmarried couples in double beds. In other words, despite how when civil partnership was introduced it was explicitly differentiated from marriage, and despite how in principle a civil partnership without any sexual component whatsoever could be established between two heterosexual friends, in British law a civil partnership is now functionally equivalent to marriage.

Indeed, it's clear that this is recognised by society at large; many people already refer to civil partnerships as 'gay marriages' and describe attending civil partnership ceremonies as 'going to weddings'. Gay marriage is already in many respects a social reality.

The push, and it's not a broadly-based one, for same-sex partnerships to be legally recognised as marriages can, therefore, have no practical purpose, as that practical purpose has already been achieved. The change is essentially about symbolism. It's about a cosmetic notion equality, whereby same-sex couples will be enabled to feel that the State formally approves of their relationships in the same way that it approves of marriages.

The Point of Marriage

Marriage, however, is not and has never been a socially-approved love-bond; indeed, throughout history it's been quite rare to think of love as essential to marriage. Desirable, sure, but not essential.  Why would the State care whether two individuals -- of whatever sexual orientation -- love each other or not? It's not the State's business to comment on our private relationships.

What marriage primarily is, and what it has always been, is a mechanism to enable the procreation and the rearing of children in a safe, stable, and balanced environment. This is, by definition, a public rather than a private relationship, and it is something that creates a public good.  It is for this reason, and essentially only for this reason, that the State recognises marriage as an institution.

Discussions about what's fair for adults miss the point. From the point of view of the State, marriage has always been viewed as an essentially child-centred institution. 

Marriage as the foundation of the family in Irish and British law...
The two states that exist in these islands have both legally recognised this fact. In the case of Ireland, this is expressly stated in article 41 of Bunreacht na hÉireann, the Irish Constitution, in which the State 'recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law,' guarantees to protect the family, 'as the necessary basis of social order and as indispensable to the welfare of the Nation and the State,' and 'pledges itself to guard with special care the institution of Marriage, on which the Family is founded.'

Look at that. The Irish State sees marriage as something to be protected as the Family is founded on the institution of marriage, which is seen as necessary to social order and the welfare of the nation as a whole.

So what, you might think: the Irish State may see things that way, but the United Kingdom has a different view. Well I think you'd be surprised. In 1948, the United Kingdom signed up the Universal Declaration of Human Rights, article 16 of which says:

'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. Marriage shall be entered into only with the free and full consent of the intending spouses. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.'

This, essentially, makes the same points about marriage as are made in the Irish Constitution. The fact that the article says 'men and women' is important, as it recognises the balanced nature of marriage as a bond between people of different sexes; it would have been easy for the framers of the Declaration to have said that 'everyone of full age... has the right to marry and found a family'.

All other rights are expressed in a generic, gender-neutral way. Only the right to marriage recognises that men and women are different; this is a recognition of how sexual complementarity is essential to marriage.

Three years after the ratification of the Universal Declaration of Human Rights, the United Kingdom signed up to the European Convention on Human Rights, which had been inspired by Winston Churchill and drafted under the guidance of the later Lord Chancellor Kilmuir. Following the pattern of the Universal Declaration of Human Rights, article 12 of the Convention pointedly does not say that everyone has the right to marry:

'Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this rights.'

As the European Court of Human Rights has recognised, this should not be interpreted as saying that people have a right to marry whoever they wish; the nature of marriage as a bond between people of opposite sexes for the purpose of founding a family is implicit in the article's wording.

The Court has also stressed that the Convention must be read as a whole, rather than with individual articles torn out of context, and that when read this way 'all other substantive Articles of the Convention grant rights and freedoms to "everyone”"or state that "no one" is to be subjected to certain types of prohibited treatment. The choice of wording in Article 12 must thus be regarded as deliberate.'

It is important too to understand that Britain has an established church, and though most opponents of this fact take issue with what they see as the Church of England's inappropriate influence on how the country is governed, the fact is that -- if anything -- the traffic of power goes the other way. Among other things, Parliament authorised the 1662 Anglican liturgy, and as such, in a legal sense, it speaks through the Church of England, or at least through its traditional prayers.

There was an attempt in the 1920s to change the official prayerbook, but Parliament blocked the proposals as being too Catholic in tone; since the Parliamentary refusals to sanction changes to the prayerbook, the Church of England has largely insisted on its right to choose its own prayers regardless of Parliament. As such, the 1662 Book of Common Prayer still stands as a Parliamentary expression.

And what does this say of marriage? It defines marriage as a holy estate, in which man and woman are joined together, for three reasons, the first of which is the procreation and rearing of children, and it says that marriage is not lawful if it is contrary to God's law or the law of the land. In other words, Parliament says that for marriage to be lawful it must follow the pattern of Christian marriage as laid out in the New Testament.

As for what that is, and why this matters, I'll get into it tomorrow...

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* Yes, I know about polygamy, but even then, there haven't been many societies in which polygamy has been very common, and scarcely any polygamous societies practice 'group marriage'. Instead, what tends to exist are situations where an individual can be in more than one pair-bond at any given time, such that a man can have two wives, but the wives are not wives to each other. The basic principle that a marriage is a bond between one man and one woman has been the basic universal norm throughout history.