So, I've been reading the Government's Equal civil marriage: a consultation. Regardless of where people stand on the issue, they should quickly realise that it's a shoddy piece of work, undermined by the fact that its authors clearly don't know what they're dealing with.
I've just been glancing through it today, and think it might be worth getting a few of my thoughts down. For future reference, if nothing else.
A Couple of Oft-Misunderstood Points
In reading it, it's crucial to remember two things.
- Weddings and marriages are not the same thing. A wedding -- otherwise referred to as a marriage ceremony -- is an event. This event gives access to marriage, that being an institution.
- There is no legal distinction between civil and religious marriages. There are legal distinctions between civil and religious marriage ceremonies, but that's it. In English law, it is legally meaningless to speak of either civil or religious marriage. There is only marriage. That's it.
Bearing that in mind, you should realise that the document is misnamed. It's impossible to speak of 'equal civil marriage' in a meaningful British context; one can only speak of 'equal marriage'.
Of course, those of us who subscribe to the Universal Declaration of Human Rights are already signed up to the concept of equal marriage; men and women, it says, have the right to marry and found a family, with both men and women being entitled to equal rights as to marriage, during marriage, and at its dissolution. Calling 'same-sex marriage' 'equal marriage' is an Orwellian hijacking of an established term.
And before anyone pipes up, there's a reason why both the Universal Declaration of Human Rights and the European Convention on Human Rights speak of men and women in their articles on marriage; they specifically mean that men and women have the right to marry each other.
We have to read the documents in their entirety, and not look at articles in isolation. Both documents speak of 'everyone', 'all', and 'no one' in all their other articles, but specifically refer to 'men and women' only in their articles on the right to marriage.
If that sexual complementarity wasn't important, why not just say 'everyone' again? And why link 'men and women' to the foundation of the family, that being 'the natural and fundamental group unit of society', if the Declaration isn't about how families can be naturally founded? In nature, as Camille Paglia puts it, 'procreation is the single, relentless rule'. I'm pretty sure Darwin said similar things.
And before anyone pipes up, there's a reason why both the Universal Declaration of Human Rights and the European Convention on Human Rights speak of men and women in their articles on marriage; they specifically mean that men and women have the right to marry each other.
We have to read the documents in their entirety, and not look at articles in isolation. Both documents speak of 'everyone', 'all', and 'no one' in all their other articles, but specifically refer to 'men and women' only in their articles on the right to marriage.
If that sexual complementarity wasn't important, why not just say 'everyone' again? And why link 'men and women' to the foundation of the family, that being 'the natural and fundamental group unit of society', if the Declaration isn't about how families can be naturally founded? In nature, as Camille Paglia puts it, 'procreation is the single, relentless rule'. I'm pretty sure Darwin said similar things.
There's a handy annex at the back, including all questions being asked, and it gets interesting if you edit them to reflect legal reality. Look at questions five and six, for instance.
- Question 5: The Government does not propose to open up
religiousmarriage to same-sex couples. Do you agree or disagree? - Question 6: Do you agree or disagree with keeping the option of civil partnerships once
civilmarriage is available to same-sex couples?
Yep, utter gibberish. Questions five and six make no legal sense unless the Government is planning on legislating to create new institutions called 'religious marriage' and 'civil marriage'. As it stands, there's only the one institution, which we call marriage, and which has been defined, since at least 1662, as being the union of a man and a woman primarily for the purpose of bearing and rearing children.
Should Marriage Be Redefined?
People who have issues with the whole idea of truncating the definition of marriage such that it's reduced merely to a bond of commitment between two adults, and who believe that we shouldn't be casting aside the one institution that has always upheld the ideal that children should always be raised by their mother and father, will want to pay attention to the following four questions in particular:
- Question 1: Do you agree or disagree with enabling all couples, regardless of their gender to have a civil marriage ceremony?
- Question 2: Please explain the reasons for your answer. Please respond within 150 words.*
- Question 14: Do you have any comments on the assumptions or issues outlined in this chapter on consequential impacts? Please respond within 1,225 characters (approx 200 words).
- Question 16: Do you have any other comments on the proposals within this consultation? Please respond within 1,225 characters (approx 200 words).
Granted, the Government may just smile indulgently at your concerns, as section 2.8 of the consultation document makes it clear that the Government plans on redefining marriage whether people like it or not.
Early Problems
Looking at the consultation, and bypassing the erroneous title, things get messy very quickly in the ministerial forward. Same-sex couples, we're told, have access to the same civil rights as married ones, bar the ability to be married and the ability to say they're married.
It's an odd sentence, and not merely because it wouldn't take much to say 'opposite-sex couples have access to the same civil rights as same-sex ones, bar the ability to enter into a civil partnership and the ability to say they're civil partners', which for some reason the government doesn't see as an injustice in need of rectifying.
No, as we all know, the Government's claim is not quite true. I'm pretty sure 'marriage' isn't a protected term in Britain. While they may not be able to say so for legal purposes, couples in civil partnerships regularly say that they're married, and so do lots of people when talking about them. What's being proposed here is that others should be compelled to accept that same-sex couples are married. That's a rather different thing.
It's an odd sentence, and not merely because it wouldn't take much to say 'opposite-sex couples have access to the same civil rights as same-sex ones, bar the ability to enter into a civil partnership and the ability to say they're civil partners', which for some reason the government doesn't see as an injustice in need of rectifying.
No, as we all know, the Government's claim is not quite true. I'm pretty sure 'marriage' isn't a protected term in Britain. While they may not be able to say so for legal purposes, couples in civil partnerships regularly say that they're married, and so do lots of people when talking about them. What's being proposed here is that others should be compelled to accept that same-sex couples are married. That's a rather different thing.
And then, lest we think that that was just a slip, we see the false distinction between civil and religious marriage rearing its head before the page is out:
'That is why we are, today, launching this consultation to seek your views on how we can remove the ban on same-sex couples having acivilmarriage in a way that works for everyone. We are clear that no changes will be made to how religious organisations define and solemnizereligiousmarriages and we are clear that we will retain civil partnerships for same-sex couples.'
Obviously, I've tidied it up a bit. The 'topic' section on the next page, headed 'About this consultation', blurs issues in exactly the same way, making the law seem a lot simpler and more compartmentalised than it really is:
'This consultation seeks your views on how to provide equal access tocivilmarriage for same-sex couples.
The Government is focused on looking at this specific issue and is not considering wider reforms to marriage. It is therefore not considering any reforms toreligiousmarriage. Neither does this consultation look at opposite-sex civil partnerships.'
Never forget. The State, like the Church, says marriage is just one thing. There's only one institution called marriage. It's one house which we can enter by either of two doors, not two semi-detached ones with their doors side-by-side.
Was the Government Listening?
Most of the 'Executive summary' is fair enough, though 1.4, 1.5, 1.8, 1.9, 1.10, 1.11, and 1.12 feature these absurd phrases 'civil marriage' and 'religious marriage' again and again; it falls apart at 1.7 in more ways than one.
'We have listened to those religious organisations that raised concerns about the redefinition ofreligiousmarriage. We are aware that some religious organisations that solemnize marriages through a religious ceremony believe that marriage can only be between a man and a woman. That is why this consultation is limited to consideration ofcivilmarriage and makes no proposals to change the way thatreligiousmarriages are solemnized. It will not be legally possible under these proposals for religious organisations to solemnizereligiousmarriages for same-sex couples. There will therefore be no obligation or requirement for religious organisations or ministers of religion to do this. It will also not be possible for a same-sex couple to have a civil marriage ceremony on religious premises. Marriages of any sort on religious premises would still only be legally possible between a man and a woman.'
Let's read that backwards, starting with the last line. Marriages on religious premises will be illegal unless they're between a man and a woman. Ah, but the government means weddings, doesn't it? Otherwise a same-sex couple, married in the eyes of the State, would cease to be married once they stepped into a church. Think about it.
Perhaps more importantly, we have that wonderful statement that the consultation is only about civil marriage and not about religious marriage, even though they're the same thing.
And oh, look at the opening statement about the religious organisations that raised concerns about religious marriage. Did they really, Theresa and Lynne, did they really? Or did they raise concerns about marriage? Because I know the Church of England understands full well that in English law, there's no such thing as religious marriage, and I can assure you that the Catholic Church does too. So did they not make themselves clear or did the Government misunderstand? What exactly is going on here?
The Heart of the Matter
I'm tired of crossing out errors, but you'll see them again at 2.1 and 2.2. More interestingly, and in support of what I've been saying, 2.4 and 2.9 say basically the same thing, which is that there's no legal distinction between civil and religious marriage; it recognises a distinction between civil and religious weddings, but marriages are all deemed identical in law. Here is how 2.4 starts:
'There is, however, no legal definition of religious and civil marriage. Marriage is defined according to where it can take place, rather than being either specifically religious or civil.'
Obviously, the second sentence should read 'Weddings are defined according to where they can take place, rather than being either specifically religious or civil', but let's stay with the key fact that there's no legal distinction between religious and civil marriages. When government ministers or advocates of redefinition speak of 'civil marriage' or 'religious marriage', they're playing further Orwellian word games, making things sound neat, tidy, and easy to change. They're trying to make the whole project of redefinition sound reasonable, and playing down the effect it will have.
Marriage is a single phenomenon, the basic building block of British society and something integral to the British legal system, referred to 3,000 times in current law, not least in the official Anglican prayerbook, which is licensed by Parliament. There's no way this is going to be straightforward.
Marriage is a single phenomenon, the basic building block of British society and something integral to the British legal system, referred to 3,000 times in current law, not least in the official Anglican prayerbook, which is licensed by Parliament. There's no way this is going to be straightforward.
Would the Anglicans be obliged to celebrate Same-Sex Weddings?
2.10 and 2.11 are intended to allay the fears of those who fear Anglican ministers in particular would be obliged to celebrate same-sex weddings. The problem with these two sections is that they both perpetuate the myth that civil and religious marriage are different things. Given the way equality legislation works and how there's no distinction between types of marriage in British law, I think the Anglicans can be forgiven for being rather concerned that the Government's assurances can't be worth whatever paper they're written on; all else aside, would you trust them?
Because let's not kid ourselves: there are people who would happily see Christians criminalised for their views on what marriage is.
And What of Hate Speech?
2.12 is very slippery, and worth quoting in full:
'We are also aware that the doctrines of many faiths hold the view that marriage can only be between a man and a woman, and this belief is contained within the teachings of their faith. We are clear that no one should face successful legal action for hate speech or discrimination if they preach their belief that marriage should only be between a man and a woman.'
Yes, those are my italics. Note the shift from 'can' to 'should'. What would happen if someone -- an Orthodox Jew, say -- were to argue not that marriages should only be between a man and a woman, but that marriages can only be between a man and a woman? What if that same Jew were to argue that the same-sex unions the government called marriages were nothing of the sort?
The rather more vague 2.39 seems to clarify this, saying that there'd be no affect on religious organisations' ability to teach and preach their beliefs on the definition of marriage. If this, rather than 2.12 is to be the guiding principle here, it seems religious bodies are to be given the right to deny the authority of the state, which is nice though an odd thing to legislate for, but I'm still not convinced it works.
Religious organisations are one thing, but what of individual religious believers? It's worth remembering too that the European Convention on Human Rights recognises the right to manifest beliefs in worship, teaching, practice, and observance. Is the government saying we'll only have freedom in teaching?
This, I think, is where question 14 could come in handy. Might be worth asking for clarification on that one.
Should a Law be Deliberately Vague?
Marriages being essentially about ensuring the children are raised by mothers and fathers, it's always been the case in law that consummation -- the procreative act -- has been an essential part of a marriage; even now, failure to consummate a marriage is grounds for dissolution of a marriage. 2.15 says that same-sex marriages should be identical to marriages as they currently stand in law, which raises a bit of a problem...
2.16 is superbly fluffy in how it dodges the questions of what would constitute same-sex consummation and what would constitute same-sex adultery. Clearly not wanting to go near the issue of what that might mean, the Consultation farms off the questions, saying they'll be for the courts to decide down the line.
Marriages being essentially about ensuring the children are raised by mothers and fathers, it's always been the case in law that consummation -- the procreative act -- has been an essential part of a marriage; even now, failure to consummate a marriage is grounds for dissolution of a marriage. 2.15 says that same-sex marriages should be identical to marriages as they currently stand in law, which raises a bit of a problem...
2.16 is superbly fluffy in how it dodges the questions of what would constitute same-sex consummation and what would constitute same-sex adultery. Clearly not wanting to go near the issue of what that might mean, the Consultation farms off the questions, saying they'll be for the courts to decide down the line.
This, frankly, is irresponsible, as it means that same-sex couples won't know if their marriages are legally valid unless their sex lives are inspected in court, at which point the court will redefine what counts as consummation. Of course, since any definition of consummation that the courts come up with for same-sex couples will have to be applicable to opposite-sex ones -- all marriages being identical in the eyes of the law -- this will mean that the very notion of consummation will itself have to change for everyone.
Something of a Double Standard
2.17-20 makes it clear that civil partnerships should be maintained for same-sex couples even if same-sex marriage is introduced. On this I think Peter Tatchell has a point; it doesn't make a lot of sense to redefine marriage to allow same-sex couples to marry if we're not also to redefine civil partnerships so they can be entered into by couples of different sexes.
Indeed, a part of me is persuaded that Julie Bindel may be on the right track on this; maybe the State should just abolish marriage as a civil phenomenon, and just open up civil partnerships to everybody. That would, at least, ensure that same-sex couples would become identical in law, rather than equal, with opposite-sex ones, whilst nonetheless preserving marriage as an ideal.
Indeed, a part of me is persuaded that Julie Bindel may be on the right track on this; maybe the State should just abolish marriage as a civil phenomenon, and just open up civil partnerships to everybody. That would, at least, ensure that same-sex couples would become identical in law, rather than equal, with opposite-sex ones, whilst nonetheless preserving marriage as an ideal.
I'm not convinced some of those crying out for what they see as marital equality would run with that, though. It's very easy to change things when you think doing so will have no impact on your own life, but once you've to pay a price...
There is, of course, also the question of whether society should abandon the only institution that exists so that children are raised by their mother and father, leaving it solely to religious bodies to hold forth that ideal. This, for me, is the one serious stumbling block in this idea. Marriage is a good thing, after all. We all gain from it.
A Glitch in the Proposal
2.23 conflicts with what's previously been said 2.6 as it says that a bit of paperwork will be all that's needed for civil partnerships to be converted to marriages. Given that marriages require public vows, as described at 1.10, and how according to 2.15 the idea of this proposal is to make them identical, with both same-sex civil weddings being conducted in the same way as civil weddings are currently conducted, public vows would surely be needed.
Which is it? Vows or paperwork? Either?
A Dose of Reality
2.36 is a bit reassuring, as the government acknowledges that not all countries will accept same-sex couples as being married. This could be messy, though it's a particular hoop that Spain, the Netherlands, and a handful of other countries have jumped already.
More interestingly, 2.37 notes that marriage is a devolved issue, so this won't apply in Scotland or Northern Ireland.
I'm not sure if that means same-sex couples deemed married in England might find that they're not regarded as married in Scotland and Northern Ireland, or if it's simply the Government's way of telling gay couples that they'd best not even think of running off to Gretna Green.
_______________________________________________________
* Or 1,225 characters (approximately 200 words) according to the main text. I'm not sure why they can't even get this right. Were lawyers and proofreaders barred from looking at this ridiculous mess? Pathetic.
30 comments:
Thanks for this useful analysis.
A further point on process: I completed the consultation and then my wife (or should I say 'opposite sex partner', in these enlightened days?) wanted to.
However, she couldn't: it is one reply per computer.
That clearly biases the consultation in favour of those families and individuals who have access to more than one computer (and of course those without access are excluded altogether).
I bet there are more people with access to several computers in the chattering classes than in the working classes, let alone the unemployed...
I wrote about this yesterday (http://www.peter-ould.net/2012/03/15/the-government-consultation/) when I said,
"I want a space to write, “But it beholds you to go back through all the case law and work through what the implications are of what you are proposing to do, with respect to consummation, laws around procreative responsibility of married fathers and other factors. You need to show us what the effect is”. That argument is independent of whether you agree or not with what the Government want to do – at the moment the Government is basically saying, “We’re going to do this and then afterwards we’ll find out what the legal ramifications are”. It’s not in any sense a way to make law."
It's almost laughable if it wasn't so serious.
I will have to think about what you say about there only being marriage. I think there is a distinction in English civil law at least between marriages which the civil law recognises and those which it does not. If a Catholic priest (who is not a registrar) were to marry a couple would that not be a valid marriage in the eyes of the Church but not recognised in civil law?
However the real worry about this document is the worthless assurance that there will be a bar on same-sex marriages being performed on religious premises. This bar would last about two minutes in the light of Equality law. It is worth reading the section on Section Impact at the end of the Impact Statement where you can see where things are going in the European Human Rights court. I fear there will be a symbiotic push by the Court and our Government to try & force same-sex marriages in our Churchs.
There are marriages recognised by the civil law and marriages recognised by religions. The civil law has its own substantive and procedural requirements for a marriage to come into existence (and remain in existence), as per the relevant statutes for England, Wales, Scotland and NI (these may incorporate religious rites). If these requirements are not satisfied at a particular point in time as regards a particular man and woman, a marriage between that man and that woman does not subsist in the eyes of the (civil) law. A man and woman may be married for the purposes of say, the Catholic Church, but not as a matter of civil law. Conversely, a marriage under civil law may subsist between two Catholics, but there may be no marriage as recognised by the Catholic Church. The consultation deals with marriage under the civil law only (it couldn't purport to deal with anything else!). As marriage is a natural institution, neither the laws of Church or the laws of the State ought to deviate from or conflict with, the true, objective nature of marriage.
That's interesting, Ben; I hadn't even considered the mechanics of replying. Can we reply by letter, or are we bound to respond electronically?
I fully agree, Peter. One of the things that will come out of this is a redefinition of consummation, which will entail a further redefinition of what marriage is.
Hi Nicholas. From the point of view of the State, marriages the State doesn't recognise are not marriages. There's a distinction, therefore, not between 'civil marriages' and 'religious marriages' but between 'legal marriages' and 'so-called marriages with no legal standing whatsoever'.
I share your concerns about threats to Christians under vexatious and aggressive deployment of equality to laws, but think the greater threat is to society in general. There's not one mention of children in this entire consultation, which doesn't even address the fundamental question of what marriage is. I don't think we can abandon a societal ideal without risking serious long-term damage to society. It wouldn't happen overnight, of course.
While it is of course true, Lynda, that the consultation deals with marriages under the civil law only, I don't think you're right to say it cannot deal with religious ceremonies. It specifically proposes barring religious bodies from celebrating marriages, for instance, whether they would like to or not, and one of the questions in the consultation asks people whether they agree with this proposal or not.
There's also the fact that Anglican clergy are direct agents of the state; they are 'clerks in holy orders', who solemnise marriages in the eyes of the law. This will pose very serious problems for them.
There is a mistake in my comment when I referred to the last part of the Impact Statement as "Special impact" when it is in fact "Social impact". At that point they say absolutely nothing about this most crucial point as you say: the long term social impact.
On the question of marriage the distinction is between marriages which the State recognises and those that it does not. However I agree that the Government is proposing a new distinction between civil marriage and religious marriage which is quite wrong. It is dangerous in that a person who enters into a civil marriage which is valid in the eyes of the Church (for non-Catholics) is somehow being told that he has entered into something radically different from religious marriage. We will have a two-tier marriage system with civil marriage being degraded further.
The long term social impact is the most important aspect but I think we need to think hard about what happens next and how we are to respond. I anticipate that the Act may well get passed and then the homosexual lobby will go for having a same-sex marriage in a Catholic Church. I suspect that the Government - at least the Lib-Dem part - will enter into an unholy alliance with the European Court of Human rights to declare the bar on same-sex religious marriages being celebrated on religious premises as contrary to equality. We must prepare for this. The problem is that we have a fifth column in our midst viz: The Soho Masses Pastoral Council and others. Have the hierarchy the necessary courage to confront this issue or will they take the attitude of not seeking a fight and do nothing until it is too late?
Further I think we ought to be writing to our MPs and particularly to Conservative ones to ask why on earth they are picking a fight with such a proportion of the population. I would hope that some tribal feeling amongst Catholics, particularly those of Irish descent, will arise.
I suspect many problems could be avoided by opening civil partnerships to opposite sex couples. One major issue just now is that the form of official relationship you have immediately demonstrates your sexuality. It is rarely necessary and sometimes unwise to reveal this.
I tend to agree, though I think that could be rectified fairly easily with forms saying: are you in a marriage or civil partnership? a) Yes b) No.
Likewise, it wouldn't be too hard to change forms so that if people had to detail a relationship with a person they could put down 'husband' or 'wife' but could instead, if they so wished, write 'spouse/partner'. I'm pretty sure that could be fudged in a way that'd satisfy almost everybody.
TG, As I said, above, marriage as recognised by the civil law can involve religious marriage rites - it's still marriage as per the civil law (the various marriage statutes for the legal jurisdictions within the UK). Marriage as recognised and regulated by the civil law is still separate and independent of Church marriages. Marriage as recognised by the civil authorities in the UK was originally only marriage by a C of E minister. Eventually wholly secular ceremonies were devised which operated in parallel to the religious ones (which were still "civil marriages" once they satisfied all the requirements, substantive and procedural, of the civil law (as well as being Church marriages)). Many marriages that involved just one ceremony, if one doesn't count the registry procedure as a stand alone ceremony, are both marriages under the law of the State and that of their Church. However, they are independent of each other - as I said above, one can be married for the purposes of one but not the other.
Lynda, I'm afraid I have no idea what your point is. I'm sorry.
"Regardless of where people stand on the issue, they should quickly realise that it's a shoddy piece of work"
I agree with you there: I think the Scottish Government's consultation on same-sex marriage was much better constructed.
"Bearing that in mind, you should realise that the document is misnamed. It's impossible to speak of 'equal civil marriage' in a meaningful British context; one can only speak of 'equal marriage'."
The shoddiness here was caused by the Tories trying to avoid a confrontation with the various Churches. I think this was a waste of time, and David Cameron ought to have known that, because (a) Tony Blair also tried to avoid a confrontation with the Churches by introducting civil partnership: and (b) trying to keep a ban on religious marriage ceremonies is a clear affront to religious freedom.
"Of course, those of us who subscribe to the Universal Declaration of Human Rights are already signed up to the concept of equal marriage; men and women, it says, have the right to marry and found a family, with both men and women being entitled to equal rights as to marriage, during marriage, and at its dissolution."
The attempt by Christian homophobes to hijack the UDHR to argue that Article 16 is intended as a ban on part of the human family being free to marry and found a family, is ... well, the kindest way to put it is that it's Orwellian quibbling, a blatant absurdity. The UDHR was never meant to be used to justify discrimination. You have not signed up to it if you think so.
"And before anyone pipes up, there's a reason why both the Universal Declaration of Human Rights and the European Convention on Human Rights speak of men and women in their articles on marriage; they specifically mean that men and women have the right to marry each other."
No, they don't. They mean that the Articles apply to both men and women.
"In nature, as Camille Paglia puts it, 'procreation is the single, relentless rule'. I'm pretty sure Darwin said similar things. "
The difficulty with pointing to "procreation" as a justification for banning same-sex couples from marrying is that if rigorously applied, this entails banning some mixed-sex couples from marriage, if they cannot or do not intend to have children: and it collapsed in the UK as a means of banning all same-sex couples from marriage in April 2009.
"People who have issues with the whole idea of truncating the definition of marriage such that it's reduced merely to a bond of commitment between two adults"
The idea that it's a "truncation" of marriage to uphold it as a lifelong pledge to love, honour, and cherish your chosen other half, is ... really appalling to me. "Reduced merely" to a lifelong committment? You think so little of making a lifelong committment to one other person?
"and who believe that we shouldn't be casting aside the one institution that has always upheld the ideal that children should always be raised by their mother and father"
That "ideal" was cast aside when adoption was legalised in the UK. I have no idea exactly when that was, but it was some centuries ago. If you object to the idea that marriage is an institution in which adopted children can be raised, you are rather running against a long, long tradition.
I note that in any case not one of your "four questions" actually concerns banning couples who can have children together from getting married....
"Because let's not kid ourselves: there are people who would happily see Christians criminalised for their views on what marriage is."
Fearmongering nonsense. (Did you listen to Will Young on Question Time? Or were you too busy condemning him for wanting to get married?)
"What would happen if someone -- an Orthodox Jew, say -- were to argue not that marriages should only be between a man and a woman, but that marriages can only be between a man and a woman? What if that same Jew were to argue that the same-sex unions the government called marriages were nothing of the sort?"
Nothing whatsoever.
No more than anything happens today to Quakers, Unitarians, Jews, Methodists, Presbyterians, etc, who argue that same-sex couples should be able to get married without invidious distinctions in law.
"Marriages being essentially about ensuring the children are raised by mothers and fathers"
Nope.
"it's always been the case in law that consummation -- the procreative act -- has been an essential part of a marriage"
But that doesn't matter (and is no one's business) except for the two people marrying. End of.
"This, frankly, is irresponsible, as it means that same-sex couples won't know if their marriages are legally valid unless their sex lives are inspected in court, at which point the court will redefine what counts as consummation"
Well, given you seem to be okay with mixed-sex couples having their sex-lives inspected in court...
:D
"This, for me, is the one serious stumbling block in this idea. Marriage is a good thing, after all. We all gain from it. "
Yes, well, your idea that "we all gain" by setting up a legal distinction between children raised by same-sex couples and children raised by mixed-sex couples is ... peculiar. What "gain" is there in having such a distinction?
"On this I think Peter Tatchell has a point; it doesn't make a lot of sense to redefine marriage to allow same-sex couples to marry if we're not also to redefine civil partnerships so they can be entered into by couples of different sexes."
Indeed. Also, at present a mixed-sex couple in a civil partnership who visit the UK are in a legally unrecognised relationship. The ban on mixed-sex couples entering civil partnerships should also be lifted.
"maybe the State should just abolish marriage as a civil phenomenon, and just open up civil partnerships to everybody. That would, at least, ensure that same-sex couples would become identical in law, rather than equal, with opposite-sex ones, whilst nonetheless preserving marriage as an ideal."
I think neither Julie Bindel nor you have really thought through what it would mean to ban all British couples from access to marriage. (a) It's politically impossible - no one would venture to try; (b) Even if achieved, it would ensure that no British couple could assume their relationship would be legally recognised anywhere outside the UK. (c) Pension companies would love it. Civil partners have restricted rights with regard to their other half's survivor benefits. But a lot of widows and widowers would suddenly find their survivor benefits from their partner's pension cut considerably.
"as the government acknowledges that not all countries will accept same-sex couples as being married."
More will do so than currently accept civil partnerships, though. For example, an Italian court recently recognised a Spanish same-sex marriage as valid for purposes of immigration: Israel has for several years accepted that all marriages lawfully performed outside Israel are accepted as marriage within Israel, including same-sex marriages.
"More interestingly, 2.37 notes that marriage is a devolved issue, so this won't apply in Scotland or Northern Ireland. "
We'll probably have marriage equality in Scotland before England/Wales, so same-sex couples can come to Gretna Green. Once Scotland has lifted the ban on same-sex couples marrying, England/Wales will follow, and I doubt that Northern Ireland will manage for long to keep a ban when couples simply have to travel to the mainland to get married.
On the UDHR, are you really trying to argue that though it should not be interpreted along the same principles as the ECHR, despite it being composed contemporaneously with the ECHR, directly associating the right of men and women to marry with the right to found a family, and uniquely dealing with 'men and women' rather than a non-sexual 'everyone' in its marriage clause?
It's missing the point rather spectacularly to say that because marriage primarily exists as a mechanism to ensure children are raised by their mothers and fathers, and that because the State values marriage because of this, sexually complementary couples should be barred from marriage if they have no intention to have children. Couples marry and grow old together, in such a way that complementary but infertile couples can be married; as they can be married, it follows that they can get married.
Truncation means reduction, not destruction. I think a lot of lifelong commitments, but I think marriages are valued by the State as they can be even more than that.
When I say 'ideal', I don't mean the 'only good scenario'. I mean the best scenario. Adoption can be very good indeed, as can being raised by a widowed or divorced parent, or a same-sex couple, or maiden aunts, or even in an orphanage, difficult though that can be to believe. I'm not talking about a binary opposition, but a pyramind of environments in which children can be raised.
Yes, I listened to Will Young. Perhaps I have as much difficult hearing what he's saying as you do me.
There'll be no hate speech prosecutions whatsoever? You can guarantee that?
Who says that the defining features of marriage don't matter? The law clearly thinks they do. Courts don't need to trawl through sex lives of people now because we all know what consummation is -- but if consummation has to be redefined, such that nobody knows what it is, then the courts will have their work cut out.
We all gain because it's good for society if as many children as possible are raised in stable sexually complementary households. The world is made up of men and women, after all, and it makes sense for children to be raised by both.
I've pondered those points on Bindel's idea already. I'm not convinced it'd be any messier than what's already on the cards.
On Gretna Green, that's interesting, but where's this 'mainland' of which you speak? Out Berlin direction?
"directly associating the right of men and women to marry with the right to found a family"
Again, you're trying to argue that the Universal Declaration of Human Rights was intended to be used to deny a basic human right on a discriminatory grounds. This is Orwellian revision of the UDHR's clear intent in the preamble. Article 16 says both men and women have a right to marry. That means attempts by governments to ban some men and some women from marriage are against the UDHR.
"sexually complementary couples should be barred from marriage if they have no intention to have children."
That's your argument: it's not mine. You're saying that couples who can't have children can't be allowed to marry. That bans some mixed-sex couples from marriage: it allows any two women to marry.
"I think a lot of lifelong commitments, but I think marriages are valued by the State as they can be even more than that."
Ah. This is the argument that people marry to serve the State. Nope. The State is our servant, not our owner. Marriage is valued by the State because we value marriage.
"When I say 'ideal', I don't mean the 'only good scenario'. I mean the best scenario."
So only the best people can be allowed to marry to serve the State? Really, this is now sounding very fascist indeed.
"I'm not talking about a binary opposition, but a pyramid of environments in which children can be raised. "
And yet you are arguing that the State should only value one environment, and only allow those couples who can provide that environment marriage as a privilege - not a human right.
"Yes, I listened to Will Young. Perhaps I have as much difficult hearing what he's saying as you do me."
What am I missing about what you're saying? You're arguing marriage is a privilege, only for interfertile couples, permitted to serve the State, and most bizarrely of all, that the UDHR is intended to serve a discriminatory purpose to preserve marriage as a privilege!
"There'll be no hate speech prosecutions whatsoever? You can guarantee that?
Well, no hate speech prosecutions for a rabbi declaring that Jewish marriage is only for two Jews. No hate speech prosecutions for a Catholic priest declaring that Catholic marriage is not for divorced people. No hate speech prosecutions for a Quaker declaring that Quaker marriage is only for members & attenders. We don't prosecute for hate speech where a religious person is declaring the rules of their religion, and it is pure homophobic fearmongering to claim this will happen when the ban on same-sex marriage is lifted.
"Courts don't need to trawl through sex lives of people now because we all know what consummation is"
Yes, & a court has to trawl through the couple's sex life in order to establish that heterosexual intercourse hasn't taken place. I have no idea why you want to know all about your neighbour's sex lives... but I don't!
"We all gain because it's good for society if as many children as possible are raised in stable households."
Yes. And your reason for opposing this is...? (Since you're the one who's arguing against access to marriage...)
Your homophobic claim that those stable households have got to consist of one man & one woman ("sexually complementary"...) is without foundation: it's pure bigoted nastiness against same-sex parents.
"The world is made up of men and women, after all, and it makes sense for children to be raised by both."
And yet, the scientific evidence shows that the very best parents for children are a lesbian couple.
However, that's just statistics. Really, the very best parents for a child are loving, stable, fond, proud... and with lots of family resources. (Grandparents. Aunts. Uncles. Etc.) While statistically children may turn out best when reared by two women, this is not a good reason for banning all other options from parenthood.
"I'm not convinced it'd be any messier than what's already on the cards."
Well, I guess you don't travel much or don't care about people who do: and I suppose if you're not yet in position to be claiming a pension, you'd be indifferent to those who suffered if this idea was adopted. (Christian charity? I'm about convinced most Christians nowadays think sex is the most important Christian issue.)
"On Gretna Green, that's interesting, but where's this 'mainland' of which you speak?"
Mainland UK. Sorry. Missed out two letters.
"Truncation means reduction, not destruction"
Yes, I know. I'm still finding it bizarre that you regard a lifelong committment to love, honour, and cherish your chosen one as a "reduction" from a committment to find someone interfertile, have children with that person, raise the children to adulthood, and then... meh.
FWIW, my grandparents stayed together till their youngest was 18, then divorced, which I suppose was an ideal "untruncated" marriage by your standards.
I'm not sure there's any point in answering this if you're going to misrepresent everything I say. Still...
No, I'm not saying that the UDHR was intended to deny anything. You're assuming it's a basic human right for one person to marry another of the same sex. The drafters of the UDHR would have stared at you as a barking loon if you'd said that to them. No article can be taken out of the context of the declaration as a whole.
I have never said that couples who can't have children can't be allowed to marry. If you really think I've said that, then you should look again. Please stop misrepresenting me. And two women can't produce a child between them; this is a matter of basic biology.
I've never said that people marry to serve the State; I've said the State values marriage because it's good to have as many citizens as possible raised in the most stable and balanced context as possible, and that is marriage.
I've also never said anything about the best people. I've spoken of the best environment, on balance, in which children can be raised. I've never said one word about the individual adults in that environment. Enough of the fascist charges, please.
I'm not arguing that the state should only value one environment -- again, enough of the binary fallacies, please -- merely that it values one particular environment as making a uniquely valuable social contribution.
What are you missing about what I'm saying? An astonishing amount, clearly, as your misconstruing me in at least three ways in one sentence shows.
With regard to hate speech, you confuse 'could' and 'should'. The Anglican and Catholic churches, for instance, along with most Jews, Muslims, Sikhs, and others, do not teach that marriage 'should' be between a woman and a man. They teach that it can only be between a woman and a man. In other words, they'll be bound in conscience to teach that unions between two people of the same sex, regardless of how much the individuals love each other and what the State might say, are not marriages, and cannot ever be marriages. You don't think that'd lead to hate speech charges, especially with the Governmental sidestep at section 2.12 of the Consultation?
How would that play, do you think? On the one hand their right to freedom of religion and conscience is explicitly guaranteed by the ECHR, but on the other, their exercise of that right would require them to deny the authority of the State... that could be tricky if legislation is passed, but now? No, now I think they have the obligation to make a stand for freedom of conscience.
Unless you don't believe that freedom of conscience is a right? You certainly quite happy with the idea of it being trampled on. And I'm the one who sounds fascist? Right...
Do courts trawl through people's lives, as a rule, to establish whether intercourse has taken place? I don't know. But if we change things so consummation will need to be redefined, the courts will have to do this so legal precedents can be established as to what will constitute consummation.
If you're going to quote me, do get it right. Don't cut words. I never said 'it's good for society if as many children as possible are raised in stable households' ; I said 'it's good for society if as many children as possible are raised in stable sexually complementary households.'
And it is. It's also not even close to true that the scientific evidence shows that the very best parents for children are a lesbian couple. In the first place, while a lesbian couple can act as parents to a child others have procreated, they cannot generate that child themselves. More to your point, where is this 'scientific evidence' you cite? A small number of statistically insignificant samples, not comparing like with like, ignoring how children get on in early adulthood, and conducted by researchers with seriously vested interests? No, pull the other one. There won't be a scientifically meaningful bank of data on this topic for quite a while.
And I never said that stable households had to be sexually complementary. As with your 'fascist' allegation earlier, it'd be best if you reserved your charges of 'homophobia' and 'bigoted nastiness' for things I've actually said, rather than things you've imagined. I've no doubt whatsoever that plenty of same-sex couples are utterly stable, and have never once alleged otherwise.
I'm intrigued by what world you're living in with your fantasy about lots of family resources. British families are small, and getting smaller. People don't have lots of aunts and uncles, and the next generation will have fewer again.
As for 'Mainland UK'? Please, Northern Ireland is as much 'mainland UK' as Great Britain is. It's the United Kingdom of Great Britain and Northen Ireland, after all. The Hebrides, the Isle of White, Lindisfarne, Anglesey, Rathlin Island -- none of these are mainland UK, but Northern Ireland most certainly is.
Like I've said, names mean things. Unless that was intended as a racist swipe against the Northern Irish? That they're somehow not really?
Finally, on truncation and reduction, you still seem to be fundamentally missing the point. I'm not sure how I can make this any simpler for you, but try this.
I'm not saying that a lifelong relationship of love and commitment is less than a shortlived relationship that lasted only long enough for children to be born and reared, if that. I've yet to hear anybody say that, though I appreciate that you keep thinking that's what people are saying.
What I'm saying is that marriage is an institution in which a man and a woman make vows of love and commitment to each other, and that this institution is approved of by the State because such institutions by their general nature are ordered towards the bearing and rearing of children in an environment which is both stable and complementary.
It's about love and children. It's not just about love. If it were, why on earth would it be anybody else's business? Why would you want it to be? I have yet to see one person ever make a case for why the State should be in the business of patting people on the head because they love each other.
And no, stamping your foot and saying it's your right and that you'll thcream and thcream until you get it, well, that's not an argument. Why should the State care if any two people love each other?
Two final points.
Firstly, with regard to your latest blogpost on this subject, it comes across as more than a bit hypocritical when you've already made it clear that families where parents aren't married are inferior to families where they are.
That's a bit rough on the large number of families across Britain where the parents are cohabiting rather than married, and the vastly larger number of families where a separated, divorced, or widowed parent does a hell of a job raising his or her children alone.
I think every child deserves equal respect, and I think everybody raising children deserves equal respect. I don't see the children of unmarried parents as inferior to the children of married ones. Neither does the Catholic Church or the Church of England. Neither does the State. So far, the only person I've seen describing such families as 'inferior' is you.
Secondly, you've called my views nasty, bigoted, homophobic, and approaching fascist. A bit ironic, coming someone who hints at disdain towards children whose parents are unmarried and at people born outside of Great Britain, but there you have it.
More to the point, your charges don't upset me too much, as you clearly haven't grasped anything I've said, misunderstanding, miscontruing, misrepresenting, and misquoting me in order to reach those conclusions. My views are pretty close to Richard Waghorne's, and I'd hope you'd not call him homophobic unless you're determined to wallow in the 'No True Scotsman' fallacy.
You don't have an issue with anything I've said. You have issues with the fantasies you've concocted.
If you'll read what I've said here, you'll see that publishing abuse isn't what I do here. I've made an exception in your case this time, but won't be doing so again.
"You're assuming it's a basic human right for one person to marry another"
Yes, I am.
Yes, in 1948 gay men were brutally treated in most countries throughout the world: you will find many countries still where the idea that LGBT people are included within human rights is regarded as barking lunacy. Are you saying we cannot move on further than 1948 with regard to LGBT people? That the UDHR should be regarded as a limit on which humans get human rights and which don't?
"I'm not sure there's any point in answering this if you're going to misrepresent everything I say."
I've actually written at more length on my own blog deconstructing your views on banning couples without children from marriage: if you really believe I've misunderstood you, feel free to comment there. (Serious invitation.)
With regard to "mainland UK" - that's the phrase which I have heard used by other Irish people to describe the big island of Scotland/England/Wales: sorry if it's offensive to you, it wasn't intended as such.
I'm now wondering if you know what human rights are. In fact, I'm wondering if you know what 'basic' means. Do you really think there can be more 'basic human rights' on a Wednesday than there are on a Thursday?
There are two broad categories of rights. Basic rights, which no state has the authority to deny, and rights which states can give. If same-sex marriage is a right, it falls into the latter category, but even then it needs to be understood as part of a broad matrix of other rights, on some of which it might impose.
It's one thing to say a state can bestow upon a particular couple the right to be married -- and no charter of rights has ever listed the rights of couples, save as part of a broad list of individual rights -- but what if by doing so the State would therefore deny others rights it has already accepted as being basic human rights?
The committee that drafted and approved the UDHR was chaired by Eleanor Roosevelt. Aside from those who can't bear the thought that this could have been the case, there's pretty much a consensus that Eleanor Roosevelt was bisexual.
In other words, it's far from inconceivable that it crossed her mind that women ought to be allowed married women, but whether it did or not, she certainly made a point of framing the marriage clause in a way that distinguished between men and women in a way that no other UDHR clause does.
I've read your post, but can't agree that it disconstructs my views, not least because I have never said that couples without children should be barred from marriage, and repeatedly clarified that that's not the case. Frankly, I'm not even convinced it deconstructs that bizarre misrepresentation and misconception of my views.
Among the post's many failings, is the fact that you certainly haven't addressed the issue of why the State should be patting any two people on their heads just because they love each other?
"There are two broad categories of rights. Basic rights, which no state has the authority to deny, and rights which states can give."
Marriage is a basic human right. Banning same-sex couples from marriage is clearly against Article 16 of UDHR, which explicitly says everyone has the right to marry.
"but what if by doing so the State would therefore deny others rights it has already accepted as being basic human rights?"
No one has yet come up with any right that would be denied to anyone by lifting the ban on same-sex couples getting married. And given that the opponents of same-sex couples marrying have had many years and many millions to do the research, I think it just has to be accepted: there isn't any. Even you haven't come up with any!
"The committee that drafted and approved the UDHR was chaired by Eleanor Roosevelt. Aside from those who can't bear the thought that this could have been the case, there's pretty much a consensus that Eleanor Roosevelt was bisexual. "
So?
"In other words, it's far from inconceivable that it crossed her mind that women ought to be allowed married women, but whether it did or not, she certainly made a point of framing the marriage clause in a way that distinguished between men and women in a way that no other UDHR clause does."
The UDHR clause specifies that marriage as a basic human right applies to both men and women, and both men and women are entitled to the same rights of marriage. The very recent and very homophobic interpretation that it wss intended to ban same-sex couples from marriage is at once absurd and dangerous. It is absurd because it's plainly nowhere near the initial intention of the clause: it is dangerous because it uses the Universal Declaration of Human Rights to argue that some people are not entitled to some basic human rights.
"
I've read your post, but can't agree that it disconstructs my views, not least because I have never said that couples without children should be barred from marriage"
That's nice. So what possible justification could you have from banning couples who do have children from marriage?
And why don't you want to respond to my post at my blog?
"Among the post's many failings, is the fact that you certainly haven't addressed the issue of why the State should be patting any two people on their heads just because they love each other?"
Of course I addressed it. Point 4. You may not like Point 4, but it deconstructs your attitude that we exist to serve the State.
"I have never said that couples without children should be barred from marriage, and repeatedly clarified that that's not the case."
No, you haven't clarified that.
You've argued that (I quoted it) marriage is for producing children. You've cited this argument as a reason for banning same-sex couples from marriage. Same-sex couples can have children together by donor insemination, adoption, fostering, step-parenting - all of which are also ways in which mixed-sex couples have children together. So your argument either (a) bans some mixed-sex couples from marriage, if strictly interpreted to include only interfertile couples, or (b) it allows some same-sex couples to marry.
And you can hardly claim your vision of marriage is "child-centred", since you're explicitly arguing that some couples with children ought not to be allowed to marry!
I deconstructed what's wrong with that argument at my post. You're welcome to try to explain there what I got wrong...
Marriage is indeed recognised by the UDHR as a basic human right. The UDHR article on marriage is quite clearly distinct from all other articles which speak of a generic 'everyone', 'all', or 'nobody'. The marriage article clearly distinguishes between men and women. Why do you think this might be? Don't you think it might have something to do with the fact that marriage is a complementary and conjugal institution, reflecting our biological reality as a species? It explicitly does not say 'everyone' has the right to get married. I think you need to read it again. It's one thing to misquote me. It's another to misquote that.
As noted more than once already, there are no shortage of people who are bound by their consciences to deny that marriage can be anything other than a complementary and conjugal union. If a State bestows the title of marriage on other unions, it forces people to choose between their consciences and obedience to the State. Conscience rights are already recognised as basic human rights. As such, redefining marriage would limit those rights. Keep up. I've said this more than once.
The UDHR does not ban gay marriage; it dismisses it as the impossibility that it is. Whatever a stable and loving committed union of two people of the same sex might be it is not a mariage. Marriage is a union of a man and a woman, which as an institution exists primarily so that children can be born and reared in an environment both stable and sexually balanced.
This is not a homophobic argument.
I don't want to respond to your post on your blog because reading it is like wading through stiff porridge, flecked with rotten fruit. You haven't deconstructed anything that I've said. You've gnawed and scraped at what you imagine I've said. That's not quite the same thing.
I'm not using "fascist" as a term of abuse, though you seem to take it that way.
Fascism is the political philosophy that exalts the State above the individual. The belief that you express that marriage exists to serve the State is both literally and historically the fascist view of marriage.
It is not my view.
Fascism is not the political philosophy that exalts the state above the individual. It is just one of several political philosophies that do that.
I do not believe marriage exists to serve the state, and have said no such thing. That you can't see that is yet another example, if any further were needed, of your inability or unwillingness to understand this argument.
I don't think marriage exists to serve the state. I do think the state values marriage because it serves society. The state and society are not the same thing.
I'm going to stop publishing your comments now. You're wasting my time and you're embarrassing yourself.
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