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…)