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

All of this, of course, still leaves us with one big question: even if marriage always has been understood in a certain way, and even if religious people continue to understand it in that way, what harm could it possibly do to change how we legally define it? After all, doing so would make some people feel happier about themselves, and it's not as if anybody's talking of forcing religious institutions to celebrate same-sex marriages...

'What harm could it do?' That's the big question here. Because if a symbolic change can be enacted without a practical price, surely it'd be churlish to obstruct it. But what if that legal redefinition, that symbolic change, indeed incurred a practical price? 

It seems to me that there are quite a few areas of concern on this, such that I think the price to be paid for such an insubstantial change is far too high.

Religious Wedding Ceremonies, or, when ability becomes obligation...

As we all know, laws don't mean what politicians say they mean; they mean what they say, and they mean what judges say that means, and judges do not interpret laws in isolation but as part of the law of the land taken as a whole. As such, any law that gave religious bodies the right to solemnise same-sex marriages, but that said religious bodies would have no duty to solemnise such commitments, would have to be read in light of the Human Rights Act and other equality legislation, notably the Equality Act (Sexual Orientation) Regulations.

What does this mean? It means that once it's legally established that religious same-sex wedding ceremonies can happen, it's only a matter of time before the refusal of a religious body to solemnise same-sex wedding ceremonies is deemed illegal. Tolerance will not be enough; approval will be mandatory.

I don't think this will affect the Catholic Church too much, but I can see the Anglicans getting into real trouble on this one. You can see how it'll happen, of course; a couple of liberal vicars will disobey their bishops and celebrate same-sex weddings, legally registering them as they go, thus setting a precedent, and once that happens, some poor evangelical vicar will get it in the neck for refusing to do the same thing.

Serious amounts of 'damages' will wind up having to be paid as the price of acting in accordance with one's own conscience, the rules of one's institution, and the original intent of the law of the land. This isn't a 'slippery slope' argument. This is the way the law works, and is how we've seen equality legislation being interpreted thus far.


Civil Ceremonies, or barring people from jobs...
As we also know, there have already been difficulties in the UK with marital registrars who have refused to register civil partnerships; some have resigned, whereas others have faced disciplinary proceedings. One lady, Lillian Ladele, who'd worked as a registrar in Islington for years, was deemed to have committed gross misconduct for having swapped shifts so that she did not personally have to preside over civil partnerships; she was denied opportunities for promotion, disciplined, and threatened with dismissal. This wound its way through the courts, with the Court of Appeal finding that Islington Council had done nothing wrong, Lord Neuberger ruling:

'It appears to me that, however much sympathy one may have with someone such as Ms Ladele, who is faced with choosing between giving up a post she plainly appreciates or officiating at events which she considers to be contrary to her religious beliefs, the legislature has decided that the requirements of a modern liberal democracy, such as the United Kingdom, include outlawing discrimination in the provision of goods, facilities and services on grounds of sexual orientation, subject only to very limited exceptions'

Note that she hadn't attempted to block civil partnerships from being registered; she had in fact arranged things so that that registration could take place, but without her involvement.

I have no doubt that there'll have been other registrars who've had difficulties with civil partnerships who nonetheless have continued in their jobs and presided over them in acceptance of the fact that civil partnerships were new things, officially-sanctioned social mechanisms to give same-sex couples the same rights as married couples, that were nonetheless never intended to be identical to marriages.

And I have no idea how they'll cope now, especially if there's no allowance to be made for disagreements in conscience. There'll be a lot of people who'll think the government can call a dog a duck if it wants to, but it still won't be able to quack.

I'd expect that such people will have to choose between their jobs and their beliefs, and will be forced either to lose their jobs or to become hypocrites; what's more, I think that if the State henceforth is to require registrars to register same-sex unions as marriages, regardless of their personal beliefs, it will effectively be barring people from applying for such jobs.

It's worth looking at the second part of the ninth article of the European Convention on Human Rights, to which the UK a signatory:

'Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.'

Look at that. Freedom to manifest one's beliefs should only be limited if it is necessary to do so. Not useful. Not desirable. Necessary. As I explained the other day, the Convention does not regard same-sex marriage as a right, so it's not something that's entitled to protection. I'm not sure the State should be seeking to redefine something, to a purely cosmetic end, if the cost of doing so is to force people to act against their consciences or to block people from having jobs.

Remember: civil-partnerships already have all the substantive rights of marriage. Frankly, I'm not sure anyone should be looking for the State to pat them on the head if the price of their feeling better is for somebody else to lose their job, and I'm not convinced the State should be indulging anyone who thinks their feelings are worth more than somebody else's livelihood.


More Problems for the Anglicans, or the question of establishment...
As I said the other day, given the fact that Parliament has licensed the traditional liturgy of the Church of England, there's a powerful sense in which Parliament speaks through the Church of England, indeed, there's a sense in which the Church of England is an arm of the State. As such, it's the State that speaks when the Church of England declares:

'... that so many as are coupled together otherwise than God's Word doth allow are not joined together by God; neither is their Matrimony lawful.'

I realise this might be seen as a technical issue rather than an issue of basic justice, but the established Church, as an arm of the State, can hardly announce on a regular basis that lots of bonds sanctioned by the State are in fact unlawful. Indeed, I don't see that any marriage could be lawfully redefined in England without Parliament formally changing the status of the Church of England, such that it would cease to be an expression of the State; and what that would do to the Queen, Defender of the Faith that she is, I really don't know. After all, back in 1953 she took a coronation oath in which she was asked:

'Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? Will you to the utmost of your power maintain in the United Kingdom the Protestant Reformed Religion established by law? Will you maintain and preserve inviolable the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England? And will you preserve unto the Bishops and Clergy of England, and to the Churches there committed to their charge, all such rights and privileges, as by law do or shall appertain to them or any of them?'

To which she responded:

'All this I promise to do. The things which I have here before promised, I will perform, and keep. So help me God'

Given her oath, I'm not sure the Queen could sign into law any law that redefined marriage; as such, redefining marriage could well turn out to be a step towards disestablishment. Call me old-fashioned, but that seems an odd thing for a Conservative-led government to work towards.

Can you really imagine David Cameron declaring that he supports the disestablishment of the Church of England, 'not despite being a Conservative, but because I am a Conservative'?

Recognition of Marriages, or an Orwellian law that affects everyone...
There's a typically snide kind of response that is often thrown in the faces of people who have issues with same-sex marriages, which tends to take the form of 'Well, if you don't approve of gay marriages, don't have one! Nobody's forcing you to!'

This is problematic in a number of ways, but not the least of the issues with such a line is that it confuses weddings and marriages. A wedding is merely a ceremony in which a marriage is recognised; it lasts an hour, a day, or a week, depending on your culture and the type of wedding. A marriage, on the other hand, is a much more protracted affair, typically understood as lasting until one of the two partners dies.

If the State redefined marriage to include same-sex covenants it would effectively be demanding that everybody recognise those same-sex covenants as being marriages, irrespective of what people might privately believe. It shouldn't be hard to see how that could have an effect on religious people, of whatever faith, who simply believe that same-sex unions cannot be marriages.

Mainstream Christian teaching would be open to prosecution under section 5 of the Public Order Act. The law doesn't require there to be an intention to insult, after all. It just requires people to feel insulted, in a context where the insulting person could be expected to realise that there might be somebody around who'd feel insulted or demeaned by what's being said or written.

Ordinary priests, teachers, and parents would become open to hate speech legislation.

If any service, or facility, or anything at all is offered to married couples only, well, the State would now be explicitly saying that it must also be made available to same-sex couples, regardless of your own views on what marriage is.

This would be a profoundly illiberal development, establishing a precedent for the State to redefine any pre-existing and generally recognised concept and to demand that people accept its new definition. Does anybody want that? Does anybody want the State to have a coercive power to redefine the very words we use in order to drive any ideological agenda, however noble we might think that cause to be?

Because if you're tempted to say the State should to be able to redefine words to suit your agenda, you're giving it the right to redefine them to suit somebody else's...


And then there's Unknown Unknowns...
I was ahead of the curve in disliking Donald Rumsfeld, having read years back of how he'd basically ended Kissinger's career at the top of American politics because he believed Kissinger was a wimp. That said, I thought he was the subject of a lot of unfair criticism after he said, in February 2002, that:

'There are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don't know we don't know.'

I thought that was a perfectly clear, sensible, and systematic sentence. My main problem with him saying it was that he didn't seem capable to taking on board the implications of what he said, as had he done so, I'd imagine the Bush regime would have been rather less keen to lead the charge to invade Iraq. There are some things we simply cannot foresee in any sense, and we should keep this in mind when considering such a radical change to an institution that predates the State and has long been the foundation of British society. We have no idea what the consequences might be...

Much opposition to government same-sex marriage relates things directly to children and the fact that a same-sex marriage is, by definition, sterile: it cannot, in and of itself, ever produce a child. There's a level at which this opposition is, of course, redundant: thanks especially to changes in UK adoption law, there's a sense in which same-sex relationships are already recognised in UK law as environments in which children can be reared and nurtured*. That said, I don't think we can get away from the fact that seeking to redefine marriage in UK law is part of a general process over the last half-century which has seen marriage eroded almost out of existence. Only half as many Britons are getting married now as were getting married -- from a smaller population -- in the 1960s, and almost half of the marriages that now take place end in divorce. The idea of marriage as a stable bond that acts as the foundation of a balanced and secure family in which children can be born and raised has been undermined for decades.

Only a few weeks back Britain panicked as thousands of teenagers ran riot, plundering and ransacking her cities, terrifying ordinary people everywhere. For all the nuance we need to apply in thinking about this, it seems clear that the roots of these riots lay in two main phenomena.

I've talked already here about the economic strategy of the right -- and that includes Blair who largely followed Thatcher's line on this -- having rendered millions of less-able and ill-educated people surplus to Britain's economic requirements, leaving them hopeless and frustrated in deteriorating and soul-destroying sink estates. This is a reality that pundits on the right seem, in the main, unwilling to face.

The other issue, however, is one that should discomfort the left. There seems little denying that the riots were a symptom of a much broader social breakdown, and that well-intentioned social liberalism -- which dominates Britain's attitude to social policy -- must bear much of the responsibility for this. Dying to Belong, the Centre for Social Justice's 2009 study into gang culture, identified family breakdown as a key driver in gang culture, noting that experience of early divorce or separation massively increased the likelihood of crimes being committed in youth and early adulthood.

That's not to say, of course, that same-sex partnerships or 'marriages' will cause crimes; such a claim would be as absurd as it would be offensive. However, it's important to recognise that marriage, long recognised as the bedrock of British society, has been under attack for decades; it seems to me that if the Government seriously wants to address the problems of social breakdown in modern Britain, it should be trying to protect and support the traditional institutions of British society, rather than seeking to redefine them out of existence.


______________________________________________________________________________
*Whether this will prove a good thing is another matter: it might be absolutely fine -- for the sake of the children, I hope so -- or it might not. Though what tiny amount of evidence there is suggests that there's no harm done through children being raised in any environment in which they could never have naturally arisen, there is simply next to no real evidence on the subject.

Same-sex adoption was illegal everywhere prior to 1995, as far as I can tell, and it's really only been in the last decades that national legislatures have voted to legalise the practice: the fact is that hardly any children, raised in same-sex households, have grown up yet. They might well turn out to be the best people who've ever lived but we just can't say based on the scanty information we've got. There's a sense in which people passing opinions on this matter are passing them based on the earliest preliminary stages of a well-intentioned social experiment. It's not normal practice to adjudicate on experiments until the results are in, and it's especially bad form to do so when you've a strong vested income in a certain outcome...