Same-sex marriage? Maybe. But not like this.

The UK government has published proposals to introduce what is described as “equal civil marriage” in England and Wales.

In recent discussions, I have been cautiously (and perhaps sometimes incautiously) supportive of civil same-sex marriage in the abstract, mostly because same-sex couples exist, have many of the same qualities and features as heterosexual couples (loving, stable, committed), and face many of the same issues that are addressed under marriage law for heterosexual couples (such as kinship, inheritance, and disputes over property on a separation). Yes, civil partnerships exist, but there is a slight “back of the bus” quality to them, inadvertently highlighted when Vince Cable described the Conservative/Lib Dem coalition as “a civil partnership, not a marriage”. So some form of extension of marriage (in its civil/legal aspects) to same-sex couples seemed to make sense.

Conversely, much (though by no means all) of the opposition to same-sex marriage struck me as alarmist and intemperate. As I said to a couple of people, I have great confidence in the ability of English law to find ways to flex round some of the claimed consequences of introducing same-sex marriage.

However, now we have a concrete proposal from the government, I feel profoundly uneasy about what is being proposed and the way in which the government is going about these changes. To be honest, the government seems to be going out of its way to vindicate many of the more alarmist claims of SSM opponents.

Thirsty Gargoyle has written an excellent summary of his concerns on reading the consultation document. I don’t agree with everything he says, but I do share a number of his concerns.

Above all, the nature of the consultation. This is a very significant change in English law: probably the biggest change to be made to marriage law in history. But it is being introduced without any meaningful consultation as to “whether” SSM should be introduced; merely an online form for people to make short comments on the “how”. The consultation document is explicit:

this consultation is about how we best remove the ban on same-sex couples having a civil marriage, not on whether this should or should not happen. (para 2.8)

Normally a change as significant as this would involve much more careful consideration: a green paper followed by a white paper, say, and maybe even a draft bill. Why the rush?

Second, the framing of the issue in the consultation document. This can be seen in the quotation above, with its reference to “the ban on same-sex couples having a civil marriage”. It’s not that same-sex couples are “banned” from having a civil marriage at the moment; it’s that marriage has been defined in English law for centuries as the union of a man and a woman. It would be more helpful to talk about how we might extend the legal meaning of marriage to cover same-sex couples.

Which brings me to the third point. I’ve previously criticised some SSM opponents for what I regarded as alarmist claims that SSM would involve fundamentally changing marriage as an institution even for heterosexual couples: that it would result in a new institution of “gender neutral language”. I still think it is alarmist to say that SSM must have this result, but frankly the approach being proposed by the government most certainly does involve changing the nature of the single legal institution known as “marriage” as it currently exists, rather than finding a way to extend it to same-sex couples. Thirsty Gargoyle dissects this at some length, and I don’t need to repeat his arguments.

Thirsty Gargoyle makes some particularly good points on how the consultation document introduces a distinction, previously unknown in English law, between “civil” marriage and “religious” marriage. As he writes:

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.

Which brings me to my final point: what I think should have happened with this consultation. Fundamentally there should have been more thought about the nature and purpose of marriage, rather than punting it down the road for the courts to sort out later (as the consultation explicitly does on questions such as adultery and consummation). Any consultation and consideration of SSM should have considered whether there are elements to marriage, as currently understood in both culture and law, that do not apply to same-sex couples: principally, the connection between marriage and procreation; a connection the law recognises, while rightly also recognising that the connection is not absolute in practice, in either direction.

I would have wanted to see the following given more consideration as an idea: rather than changing the existing institution of marriage, turning it into an inherently gender-neutral institution, we could have introduced a new legal concept of “same-sex marriage”, and then said:

  • in some (indeed most) areas of existing law, “marriage” means either a same-sex marriage or a marriage between a man and a woman (with examples including the law on civil ceremonies, taxation, inheritance, divorce for unreasonable behaviour or separation, etc.);
  • but in some areas of existing law, “marriage” will continue to mean marriage between a man and a woman: such as the Book of Common Prayer (which forms part of English law), and as regards the law on non-consummation and (maybe) adultery.

That would not have involved changing the existing institution of marriage, but of creating an additional institution alongside it, having exactly the same legal rights and character except as regards elements of the existing institution whose application to same-sex couples is either meaningless, unclear, problematic, or an encroachment on religious liberty. Much of the legwork on distinguishing those two groups of laws has been done already in the legislation surrounding civil partnerships (where many, but not all, laws were amended to refer to civil partnerships as well as marriage).

Now I’m not expert on marriage law, so maybe this wouldn’t have worked. But that’s the point, isn’t it? We’ll never know, because the government decided it didn’t need to consult on anything quite as fundamental as that. All right-thinking people know it’s just a case of “making marriage equal”, “removing the ban on same-sex couples”, and letting the courts work out where the chips land – so let’s just have a desultory consultation on the “how” (throwing a bone to opponents by including a question on the “whether” that is expressly rendered pointless by the consultation document itself) and then get on with it.

So, move me from the “pro” camp to the “not yet”, “not sure” or “not like this” camp. And the thing is: I bet I’m not the only person who reacts like that.

14 thoughts on “Same-sex marriage? Maybe. But not like this.”

  1. Are there legitimate reasons for denying same-sex couples the right to marry? I would love to know what you think those may be.

    1. The question is what “the right to marry” means. If marriage is nothing more than the state recognising that two people have a loving commitment to one another, then yes: I don’t think there is any legitimate reason to deny that to same-sex couples. But that’s begging the question.

      Which is why, if you’d actually read my post, you’d see that my favoured approach (if practicable) would be to structure the extension of marriage to same-sex couples in such a way that the existing legal institution remains unchanged in itself.

  2. “… probably the biggest change to be made to marriage law in history.”

    What about the introduction of non-religious marriages?

    1. Pretty minor, when you consider that control of marriage has been a three-way tussle between church, state and individuals (“common law marriage” and all that) for a millennium or more.

    2. Also – and this is an important point – what were introduced were not “non-religious marriages“, but the ability to contract marriages outside the church. In other words, non-religious weddings. As Thirsty Gargoyle observes, the consultation’s inability to distinguish between marriages and weddings is one of the main problems with it. Even with the introduction of civil weddings, there remained a single legal institution of marriage.

  3. I find the form of support that you advocate for same sex marriage a little strange, in large part because, while commonalities doubtless exist, huge differences exist as well (the presence of sexual difference, coitus, an intrinsic connection between the socially sanctioned and recognized sexual union and the public fact of children, etc.). The onus is upon those supporting same-sex marriage to demonstrate that these don’t merit a discrimination between same-sex and male-female unions.

    What your approach seems to do is to reduce the question to a narrowly defined legal one, arguing that within the law’s purview, there is little difference between civil unions and marriage. For one, I think that this is highly disputable. Marriage does, after all, have consummation, a connection between coitus and procreation, husbands and wives, mothers and fathers, and a particular relationship with children, and these things can be expressed in law. In these respects same-sex unions are definitely different and second-class somehow, whatever else they may have in common. It seems to me that the purpose of same-sex marriage legislation is in large part to cover over the significance of these real differences and pretend that same sex unions are not really sui generis. I really don’t believe that this case has been made.

    Why exactly are we pretending that sexual difference, the connection between sex and procreation, the bonds of blood, the connection between biological (genetic and gestational), social, and legal parenthood, and the fact of having both a mother and a father are realities that don’t really require recognition? Surely these put marriage between a man and a woman in a distinct class of its own.

    However, more importantly, the term ‘marriage’ is about public meaning (not merely about individual rights), and the state and the law are not the sole guardians of the public meaning of marriage. The state could possibly forgo involvement in setting the public meaning of marriage (offering only civil partnerships for all), but with its chosen approach it sets itself up in opposition to other sources of public meaning in this area. What happens to those who refuse to recognize the state’s desired public meaning? With this redefinition, the state sets itself up in competition to other agencies and institutions and must throw its weight behind a particular, heavily philosophically and value-loaded understanding of the institution. It commits itself to the imposition of an ideologically weighted position upon the populace, and to one side in an ideological battle. I fear that this will lead to increasing levels of imposition of state-approved ideology in schools, to the marginalization of competing voices, and to the loss of a richer public meaning of marriage, formed by the dialogue of many voices, as the state’s imposed definition must assert its dominance. The concept of marriage as a pre-political and aneconomic union, relating us to horizons of our human nature that precede, transcend, and are not structured by the state’s public-private dichotomy will increasingly be forfeited.

    Have you read John Milbank’s recent piece?

    1. Alastair: I had a feeling I was going to get shot at by both sides over this one. 😉

      Yes, I’ve read John Milbank’s piece, and like the Catholic Voices response document and Thirsty Gargoyle’s blog post I found it a mixture of challenging, persuasive and frustrating. But what the three together have done is outline a basis for a revived “common good” understanding of marriage.

      And I take your point about not being “narrowly legal”. I suppose you could sum up what I’m saying in that post as: IF it is possible to extend (much of) the legal framework of marriage to same-sex relationships without damaging marriage as a social and legal reality then that is one thing – hence my tentative suggestion of a parallel legal framework creating same-sex marriage “by analogy”, as it were. But I’m inclining to the view that that’s a bigger “if” than I had previously thought; and in any event, what is being proposed is far more cavalier and takes an attenuated view of marriage as its starting point; hence I oppose it.

  4. So in other words, what you’re saying is that tinkering with marriage should only be done discreetly, advisedly and soberly, if not in the fear of God. I think this is by far the best ‘political’ blogpost I’ve read from you in recent memory. You should be a lawyer more often. 😉

    Trying not to be facetious, that Thirsty Gargoyle post is interesting for picking up quite how confused a number of people at HMG seem to be — reflecting, I think, a wider confusion in British society — about the difference between the ceremony you hold, and the relationship you sustain: marriage has become the party, and not the slog. Worth thinking about more, especially for its connection with matters like divorce.

    And if the Prayer Book is part of our legal system, this will presumably mean that Parliament has to force a change on a deeply unwilling Church of England. I wonder whether this will lead more to question whether disestablishment might not, in the long term, be a better position for them? It would be ironic if bringing together gay couples in marriage sparks the divorce of church and state!

    1. Yes, John Milbank makes a good point about SSM and divorce: “it would be intolerable to impose difficult divorce obstacles on gay people, but equally intolerable to make divorce entirely instant for heterosexual couples”.

      To some extent I think the suggestion I made in my post would address this, and the Prayer Book point, because marriage (as in between a man and a woman) wouldn’t be being redefined; rather, some (but not all) laws would be said to apply both to marriage between a man and a woman and to same-sex marriage. Though there comes a point at which one has to say, “Why are you bothering to call something ‘same-sex marriage’, if it’s different from existing marriage in its purpose (lacking the elements of ‘complementarity and fertility’, even if it retains the very important elements of companionship and mutual support), in how you can contract it (civil vs religious, not to mention the ‘vowless marriage’ that may be available to those in civil partnerships), in what makes it valid (consummation) and in how you end it?”

      1. Actually, at that point I wasn’t even thinking of how to handle gay divorces. (I’m now trying to imagine someone from the ’50s coping with the concept of a ‘gay divorce’!) I really just meant that the culture of easier divorce in the UK was very congruent with the idea that marriage is a party rather than a way of life, and that it was also worth pondering what factors are at work there. (‘Capitalism’ is taken as given as an answer from you. 😉 )

        But on the questions you raise, I would say, Indeed. It does rather seem that you’d still end up with this problem that gay couples would feel like they have the word but not the fullness: just a stronger version of the problems with the current arrangements. I was just wondering out loud as to whether the current proposals would see the Church of England receiving some pretty rough treatment at the hands of Parliament. Erastianism for the lose, and all that.

      2. Well, a point Thirsty Gargoyle (whose part in this story is more than a blog post, as it happens – I was discussing this with him over a pint a week or two ago) hinted at in his blog post, and which almost made it into my post, was this: the proposal is for “religious marriage” to be excluded from the new law. But there is no such thing as “religious marriage”; only “marriage” (which may be contracted according to religious rites or a civil ceremony). So any exclusion of “religious marriage” will still leave hanging in the air the question of what happens if someone knocks on the door of a Church of England parish asking the vicar, in her/his capacity as a registrar, to officiate at the “civil marriage” of a same-sex couple.

        Now, as it happens, I think the “the churches will be forced to marry gays!” argument is wildly overdone. I simply cannot imagine the courts forcing this on the churches; despite the claims of some Christian campaigning groups, the courts are not actually in the business of making hand-waving assertions of “equality”. But it does highlight the confused thinking behind the proposals we are faced with.

      3. Yes, I think the wilder fringes are over-claiming, too: on both sides, of course, but we’re more bothered about the churches. As some of our politicians pointed out on Any Questions? recently, churches can refuse to conduct weddings for divorced people, or for couples where one is Christian and the other not.

        The C of E point, which I fear I must be making in the most cack-handed way possible, is merely that given the bluntness of the government’s approach to this (and Lynne Featherweightstone, in particular, is very unimpressive), it seems likely that they will make such a total hash of it that they manage, even accidentally, to put the C of E in a very tight spot.

      4. Yes, Damian Thompson was having fun at the expense of the C of E about this yesterday:

        Lots of trendy clergy will ask to solemnise gay weddings. Happy couple, beaming vicar, chirpy guests, organist belting out show tunes – who’s going to call the police? Not the bishop, who’ll be terrified of being grilled by the right-on BBC.

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