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)
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.