Redefining marriage

To return (with some reluctance) to the subject of same-sex marriage, one of the key areas of contention is whether same-sex marriage involves changing marriage for straight couples. Supporters of SSM generally insist that it doesn’t; opponents claim that SSM means “redefining marriage for everyone”.

What neither side generally addresses explicitly is what the current definition of marriage is under English law. I looked this up recently in Halsbury’s Laws of England – the most authoritative summary of English law – and was pretty startled by what I read.

Here is paragraph 1 of Halsbury’s Laws, Vol. 72: Matrimonial and Civil Partnership Law (full version here):

1. Marriage. Holy matrimony is the estate into which a man and a woman enter when they consent and contract to cohabit with each other and each other only. The solemnisation of matrimony in church is on their part the attestation in the presence of God and of the Church of their consent and contract so to do, and on the Church’s part its blessing on their union. According to the doctrine of the Church of England marriage is in its nature a union permanent and life-long, for better for worse, till death them do part, of one man and one woman, to the exclusion of all others on either side, for the procreation and nurture of children, for the hallowing and right direction of the natural instincts and affections, and for the mutual society, help and comfort which the one ought to have of the other, both in prosperity and adversity.

The first observation to make on this definition is that it is completely incompatible with any supposed distinction between “civil” and “religious” marriage. Under English law as it stands now, marriage IS “holy matrimony” as understood by the Book of Common Prayer. Not that every wedding has to take place in the Church of England using the BCP, but that every wedding under English law, whether civil or religious, results in the same legal state: the single state of life which English law calls “marriage” and the Book of Common Prayer calls “holy matrimony”.

So to introduce “equal civil marriage” necessarily involves introducing a new definition of marriage which makes clear the distinction that must now exist between “marriage” and “holy matrimony”: in other words, redefining marriage.

Now, you may well consider that it is anachronistic for marriage to be defined in the way set out above, and high time that a modern, statutory definition were introduced to replace it. But that’s not what is being presented to us in the consultation on “equal civil marriage”, and it shows how superficial the thinking is behind the government’s proposal.

A second point we can make in passing is that the linking of marriage to sexual intercourse and the procreation of children – that is, to marriage as a conjugal state – is indeed fundamental to how marriage is understood under English law, and not something retrospectively invented by opponents of same-sex marriage in order to “exclude” same-sex couples (who are undoubtedly as capable as straight couples of “the mutual society, help and comfort” that forms part of the purpose of marriage, but not its entirety as implied by talk of “recognising love and commitment”).

Finally, though, one point that is easily overlooked about this “definition” of marriage: it isn’t really a definition at all. English law doesn’t define marriage: it merely recognises the existence of marriage as an institution which exists independently (and, indeed, prior to) the state, and then proceeds to regulate that institution as it deems necessary for the common good – in particular as regards the registration and dissolution of marriages.

To introduce “equal civil marriage” as the government proposes (as distinct from introducing a parallel, but legally distinct, institution of same-sex marriage) is thus to remove that independent existence from marriage and make it entirely a creature of statute: that is, of the state. Again, even if you consider this change of status for marriage to be right and necessary, it surely needs more careful thought and consideration – and more honesty as to intent – than is on offer from the government’s current proposals.

(Incidentally, the image illustrating this post, taken from Wikipedia, is a woodcut showing “How Reymont and Melusina were betrothed / And by the bishop were blessed in their bed on their wedlock” – a vivid illustration of both the conjugal nature of marriage, and its existence independent of state involvement…)

12 thoughts on “Redefining marriage

  1. Three observations on this.

    First, that marriage as a social institution both pre-dates and exists apart from the Church.

    Second, that it’s perfectly possible to read the law you quote as a codification of the institution of marriage as it existed at the time, but observe that the nature of the institution has changed.

    Third, that your approach here is a little tooych like quoting dictionary definitions to be really convincing.

    • Thanks for the comment. To clarify the purpose of my post: we’re being told that introducing “equal civil marriage” won’t change the legal nature of marriage for heterosexual couples. However, the current (not historic: current) legal definition of marriage is irreconcilable with same-sex marriage. So to introduce same-sex marriage as an adaptation of the current institution (rather than a South African-type approach of introducing a parallel but distinct legal structure for same-sex marriage) necessarily, as a matter of simple and inescapable logic, involves changing the definition of marriage for everyone.

      Now, you are perfectly entitled to say that it is right and proper for marriage to be redefined in this way. However, what the government is not entitled to do is to pretend that it is not changing the legal definition of marriage when it is in fact doing so.

      To respond to your specific points:

      First, that marriage as a social institution both pre-dates and exists apart from the Church.

      Not arguing with that. In fact, it’s pretty much key to my argument in the final paragraphs of my post: that marriage exists as an institution in its own right, not as a creature of either state or church. Note too that the Halsbury’s definition doesn’t say that the Church creates or effects the marriage, but merely pronounces its blessing on a union that is in fact effected by the promises of the couple.

      Second, that it’s perfectly possible to read the law you quote as a codification of the institution of marriage as it existed at the time, but observe that the nature of the institution has changed.

      I’m quoting from the 2009 edition of Halsbury’s. Halsbury’s is not a history book: it’s a summary of current English law. I don’t think the nature of the institution has changed all that much in the three years since that volume was published.

      Third, that your approach here is a little tooych like quoting dictionary definitions to be really convincing.

      I’m not trying to convince you that marriage must be defined as it currently is; I’m saying that, as a matter of law, marriage is defined in that way – whether you like it or not, and whether you are persuaded or not. So it is either dishonest or ignorant (or both) for the government to claim that its proposals would not involve a redefinition of marriage.

      And as I keep saying: it would be possible to introduce same-sex marriage in a way that avoided this, by creating it as a parallel but distinct legal concept.

  2. I’m sorry, but you’re just being silly here. If we amend the existing law to allow same-sex marriage then my legal rights and duties as a married person will be exactly the same as they were before. The legal nature of marriage will be unchanged. The last major change in the legal nature of marriage was probably no-fault divorce, although married tax allowances might technically count.

    (I’d also note that the legal definition of marriage you quote was codified some considerable time before 2009 – plenty of time, in fact, for the institution to change… but you’ve probably spotted that yourself already.)

    So the question arises: what, exactly, is it that you’re so excited about here? Allowing same-sex marriage will hurt no one, make a considerable number of people happy, and make our society another increment less uncomfortable for gay people. Why oppose that? Two possibilities occur to me. One, of course, is homophobia. You might simply believe gay sex and/or same-sex desire is sinful and not to be encouraged. The other is fear of losing privilege. You might think the institution of marriage should be identical to the Church’s definition, and feel threatened by the state’s willingness to allow change. Are either of these two involved in your reasoning? Or have I misread you entirely?

      • My apologies, then. I’ll read your other posts on this topic and see if I can spot where I went wrong. (Any pointers will be gratefully accepted, although I appreciate you may not have the energy right now.)

      • FWIW, I was basically in favour of same-sex marriage right up until the government’s proposals were issued. Indeed, I got halfway through answering the consultation in a “yup, this is a good thing” way until I paused, thought, read round the subject a bit more, and changed my mind.

        As I’ve said in this post and previous posts, I think it would be possible to implement same-sex marriage in a way that would avoid the legal complications to which the government’s proposal gives rise: namely, by introducing a parallel legal concept of same-sex marriage which is legally distinct, but to which most laws relating to marriage are applied – in effect, very similar to the current law on civil partnerships.

        As I’ve said in my posts: I think same-sex couples are just as capable of exhibiting “mutual society, help and comfort” as opposite-sex couples, and it is entirely just and proper that the law should recognise this, as it does already through civil partnerships; whereas, before CPs, the law trampled on the “mutual society, help and comfort” of same-sex relationships, for example through inheritance laws and rules on “next of kin”.

        I wouldn’t lose much sleep if same-sex marriage were implemented in the way I’ve outlined above, though I must admit I’m less in favour of that than I was. But the way the government is proposing to implement it is, quite simply, an ill-thought-out mess.

        If we amend the existing law to allow same-sex marriage then my legal rights and duties as a married person will be exactly the same as they were before. The legal nature of marriage will be unchanged.

        It is certainly possible to implement SSM so that your statement is correct. But the proposals that are actually on the table would change your rights and duties as a married person. For example, the legal definition of “adultery” would have to change, since currently (as I understand it) the definition of adultery is strictly PiV. Certainly it does not include same-sex activity.

        Now, I think it would be a brave person who tried to convince their spouse that a blowjob or a same-sex affair “wasn’t really adultery”, but the fact is that legally this will be a change in the “rights and duties of a married person”. As it happens, I think that might well be a sensible change to make, but in that case let’s have a proper consultation on modernising marriage law: a green paper, a white paper, heck, a royal commission, even. Not an ad hoc piece of Tory party “detoxification” that just throws a hand-grenade into the current law and leaves it to the courts to pick up the pieces.

  3. I’ve had a look at your earlier post (and skimmed the post by Thirsty Gargoyle that you link to) and I’m afraid I’m still puzzled. What pieces would there be for the courts to pick up? The only concrete example you have is adultery as grounds for divorce, but since a same-sex affair can be grounds for divorce under existing law as “unreasonable behaviour” I don’t see any actual need for change there. The new law would be a superset of the old one, obviously, but what difference does that make? And why so much worry about consultation? People who want to uphold the ancient traditions of marriage and all that will still be able to. No rights are being taken away.

    • I don’t see any actual need for change there. The new law would be a superset of the old one…

      The new law cannot be a “superset” of the old one, because the new law (at least as proposed by the consultation) is incompatible with the current law. Current law will have to change to accommodate it.

      If “civil marriage” is to be truly “equal”, that means that marriages will have to be created in the same way and dissolvable in the same way regardless of the gender of the participants. In which case please could you let me know what the gender-neutral definitions of “consummation” and “adultery” should be.

      “Unreasonable behaviour” doesn’t provide an answer, because the separate definition of “adultery” under the current law shows that adultery is not a proper subset of “unreasonable behaviour”. Proving adultery in a divorce petition is a different process, with different evidence, from proving unreasonable behaviour.

      Yes, these are only two examples. But they go to the heart of what marriage actually is: how marriages are formed (consummation) and how they can be dissolved (non-consummation and adultery). If two things are formed and dissolved in different ways, that suggests to me they are not actually the same thing. This isn’t about “ancient traditions”, this is about clarity of thinking and effective, responsible law-making.

      Finally: I’m not saying that all these issues are insuperable obstacles to a form of same-sex marriage. I’m just saying that the consultation shows no sign that the government has thought, or is thinking, at all seriously about them. Which perhaps raises a question as to how sincere it is about the whole process: I notice that many MPs seem sceptical that this will ever happen.

  4. In which case please could you let me know what the gender-neutral definitions of “consummation” and “adultery” should be.

    As I understand it, consummation is defined as “ordinary intercourse” – a gender-neutral term already. There’s no existing body of case law for same-sex couple, of course, but time will rectify that. (Or not. Demand for annulments has dropped tremendously since the introduction of no-fault divorce and I don’t think there’s much intersection between the set of people whose religion forbids divorce and those whose religion allows same-sex marriage.)

    As for adultery… it seems a bit stupid to me that the existing law is gender-specific. It would be trivial to swap “opposite sex” to “same sex as the spouse”. Or keep it unchanged, I suppose – infidelity with a person of the same sex is still grounds for divorce as “unreasonable behaviour”.

    Yes, these are only two examples.

    They are, in fact, the only two examples you’ve been able to come up with. Which does make me wonder if you’re actually just uncomfortable with the idea of a more inclusive marriage law and casting about for reasons to object.

  5. As I understand it, consummation is defined as “ordinary intercourse” – a gender-neutral term already.

    No, “ordinary intercourse”, in legal terms, means what is often now referred to as PiV.

    Which does make me wonder if you’re actually just uncomfortable with the idea of a more inclusive marriage law and casting about for reasons to object.

    I could wonder why you have repeatedly and consistently ignored my references to a parallel but distinct legal institution of same-sex marriage, which would avoid the legal problems which the government’s proposed approach raises (not just adultery/consummation, but the legal consequences of splitting marriage itself, as opposed to weddings, into two categories of “civil” and “religious” marriage). That approach would also, as I see it, allow those religious bodies that do wish to conduct same-sex marriage ceremonies (such as the Quakers) to do so, whereas the current proposals would prohibit them from this.

    It makes me wonder if you’re actually just uncomfortable with the idea of anyone having objections to these proposals that can’t simply be dismissed as “homophobia” or “preserving religious privilege”, and are casting around for ways to show that one or both of those must really be what’s motivating me.

  6. I’m just finding your arguments very weak, which does suggest we’re at cross-purposes somewhere. In particular, I’m not seeing any good reason for a parallel but distinct status for same-sex marriage.You’ve been singularly bad at coming up with any terrible consequences that need to be avoided.

    I’m not particularly thrilled with forbidding religious marriage for same-sex couples but I can follow the reasoning. Making it compulsory would be an outrage; leaving it up the officiator would leave them open to charges of discrimination. The best solution would be to leave religion out of marriage entirely, as they do in Germany, but that would mean disestablisment for the Church of England.

    • Well, to be honest I think that ceasing to conduct the “civil” aspect of marriages in religious premises altogether, and having a system as in other countries where you go to the town hall for your civil marriage ceremony and then go to church to have a separate religious ceremony with no legal significance is the inevitable outcome of what is proposed. Which wouldn’t be the end of the world (and I suspect even the disestablishment point could be fudged if necessary – wouldn’t be the first time).

      Which is my point: you say I’ve been “singularly bad at coming up with any terrible consequences that need to be avoided”, but I’ve not been arguing that there’ll be “terrible” consequences: just sloppy thinking, leading to unnecessary legal complications that (a) could easily be avoided, and (b) we’re not being told about in the consultation.

      And my original post was really just an exercise in logic: the government’s proposals are premised on the assertion that no change in the law for opposite-sex couples is involved, but as a matter of logical necessity that cannot be true. So the result is that marriage law, and the nature of marriage as a legal institution, will change for everyone. I’m not saying that’s disastrous, or the end of western civilisation as we know it, or anything else: but it is true, and it is either dishonest or crashingly incompetent of the government to pretend otherwise.

      But we’ve probably taken this as far as we can, so happy for you to come back on this and then I suggest we wrap this conversation up. Thanks for a stimulating discussion, though.

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