05 April 2012

Britain's 'muddled' document on proposed gay marriage

It’s increasingly difficult to avoid the same-sex marriage debate in the British media, now that the government’s consultation on the redefinition of marriage has been launched.

A muddled document, to say the least, the consultation confuses marriage with marriage ceremonies, treats civil and religious marriages as though they’re legally distinct institutions rather than being exactly the same thing, avoids the question of how marriage is currently defined in law, and openly admits that the practical consequences of redefinition should be left up to the courts.

The very concept of such a consultation is itself highly irregular; parliamentary practice normally involves the drafting of a green paper to explore the possibility of changing the law, followed by a white paper putting forward government policy and inviting further comment, eventually leading – perhaps – to legislation.

In contrast to the usual process, the government seems to be trying to railroad through parliament a policy spectacularly absent from the electoral manifestos of both governing parties. The consultation really only addresses how this policy could be implemented, effectively disregarding the question of whether such a radical change in law and custom is desirable, practicable, or wise.

The consultation’s first two questions, asking whether marriage should be opened up to same-sex couples, are evidently intended merely to provide a veneer of legitimacy. The document stresses that those questions are asked only out of interest, and Lynne Featherstone, the Liberal Democrat equalities minister, has given a “cast-iron guarantee” that marriage will be legally redefined by 2015, regardless of popular opinion.

Popular opinion seems to be divided on the topic, to judge by the widely differing results of three recent polls, with one firm – ComRes – having found that 70 per cent of people believe that marriage should continue to be defined as the union of a man and a woman. There’s certainly no great enthusiasm for the proposed change.

It is notable that ICM, which found the highest support for legalising same-sex marriage, also found that the vast majority of people – 78 per cent – believed the issue should most definitely not be a parliamentary priority. ICM also observed a widespread unwillingness for schools to be allowed teach that same-sex marriage is identical to marriage between a man and a woman.

So divisive a debate has naturally become almost ubiquitous in the media; I’ve discussed the matter on the radio myself, the first time with the feminist and lesbian journalist Julie Bindel, the gay rights campaigner Peter Tatchell, and the LGBT activist Marc Delacour.

Part of the challenge in such discussions, I’ve learned, is to resist the urge to focus so much on “winning” that we fail to listen and truly engage with what others say. Julie Bindel, in particular, said something upon which I’ve since reflected quite deeply, given how acrimonious and polarised the general debate has become.
“Civil partnership provides what every single couple in the world is looking for in terms of legal protection and the right of next-of-kin, and I would extend that to brother-sister, two sisters, two best friends. I signed a civil partnership agreement with my partner ... we didn’t do it because we needed anyone to see that we have a good, stable, happy relationship.”

She argues that the State should abandon the marriage business altogether, because while it should protect committed couples – something it can do through a modified version of the civil partnership scheme – it has no business approving or withholding approval of people’s private relationships; if committed couples wish to have their unions religiously solemnized, that is their own business and no concern of the State.

Essentially a variant on the French system, it’s a similar argument to ones I’ve heard put forward by libertarian friends.

In France, religious marriages have no legal standing whatsoever; only civil marriages are recognised in law. People get married by a civil authority such as a mayor, and then – if they so wish – have their legal marriage solemnized afterwards in a religious ceremony.

The obvious advantage of Julie Bindel’s proposed system is that it would establish an indisputable legal equivalence between same-sex couples and unions of men and women, whilst also preserving long-recognised rights to freedom of religion and conscience by restricting the term ‘marriage’ to religious institutions; nobody would be obliged to recognise same-sex civil partnerships as marriages as the law would not recognise them as such, and clerics would not be obliged to celebrate same-sex marriages as marriages would be exclusively religious affairs.

It’s a tempting idea, and one I think I might subscribe to, were it not for one crucial problem, leaving aside how those already wed in civil ceremonies might be unhappy with no longer being able to call themselves married!

Just as the redefinition of marriage is not a “gay issue”, neither is it a “religious” one. Marriage is a social good, the one institution we have that exists to promote the idea that children should grow up with the love of a mother and a father. I’m not convinced that it should only be for religious bodies to make that case.

Of course, in practice the abolition of marriage is on the cards in England anyway. Since the seventeenth century, parliament has recognised marriage as the union of a man and a woman, primarily for the purpose of bearing and rearing children; marriage differs from civil partnerships also by requiring vows and sexual consummation.

The government’s consultation proposes that marriage should henceforth be recognised as the union of any two consenting adults, makes no mention of children, says that vows should no longer be absolutely necessary, and effectively abolishes the need for consummation as always understood.

In other words, if marriage to be opened up to everybody, every distinctive feature of the institution would need to be changed, such that marriage, as currently understood, would no longer exist, being replaced by a new institution called “marriage” but functionally indistinguishable from civil partnership.

Like the baby brought before Solomon, it seems marriage cannot be shared without being torn apart.
-- Originally published in The Irish Catholic, 29 March 2012.

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