This is a guest blog post by Alison Burt. Alison is a partner at Covent Garden Family Law and specialises in children cases.
Why you should care about same-sex marriage
I am not sentimental when it comes to the question of marriage – few family lawyers are, unsurprisingly. Weddings tend to make me grumpy rather than weepy: all that standing around in uncomfortable clothes, too much drink and not enough food, never-ending speeches and cringe-making first dances.
But I do care, desperately, about the right to marriage for all, regardless of sexuality. I think you should, too, and here are some reasons why.
Let’s start with civil partnership, and the suggestion that it is ‘ good enough’, rather in the Winnicott sense – not perfect, but serviceable. I’d be the first to agree that civil partnerships and the accompanying legislative amendments represented tremendous progress and have brought huge benefits. In practical terms there are only a very few distinctions between the status of civil partners and married couples and there can’t be many couples affected by those differences , eg the fact that the civil partner of a peer is not entitled to the same honorary title as a spouse. And of course there are many countries which haven’t evolved as far as we have, and which don’t have civil partnership and where there is horrific discrimination and even persecution of gay men and lesbians.
But the point about civil partnership is that it is a fudge, a compromise in terms of classification and nomenclature, which enabled the government at the time to provide the rights and responsibilities of marriage for same sex couples without allowing access to the inner sanctum that is marriage. Civil partnership is defined by what it’s not, rather like ‘Utterly Butterly’ versus real butter.
Why does it matter? Because the entire structure of civil partnership is a constant reminder that same sex couples cannot choose to get married and cannot use the same words in their ceremonies. When couples are making a lifelong commitment, the words they use are important. Of course couples can and often do write their own vows but there is no escaping the clumsy language of civil partnership when compared to ‘wife’ and husband’.
Well, you may think, this is all rather semantic and surely doesn’t make much difference in real life? I think it does. It’s easy to assume that we no longer live in a homophobic society, but we do. Homophobic crime appears to be on the rise. Stonewall’s 2009 report showed that homophobic bullying is still a huge problem in both primary and secondary schools. My seven year old has come home upset and confused because children in her class are using ‘gay’ as an insult; they may not know what it means, but she knows it means me. When our daughter was born and when my partner was ill I had to explain our relationship repeatedly to hospital staff and deal with the raised eyebrows and muttering that followed. None of this is life threatening, granted, but it is embarrassing and upsetting. Again, words matter. When you put the apartheid that is marriage versus civil partnership into that context, the distinction looks much less benign.
A common response from the opponents of gay marriage is that it would undermine historical precedent. I was particularly taken aback by the response of Lord Brennan in the Telegraph (http://www.telegraph.co.uk/relationships/9140790/Gay-marriage-Eight-centuries-of-law-obliterated-overnight.html). Any lawyer, particularly someone of his eminence, will recognise the extent to which the law on marriage has played catch up with changing mores. We now allow married women to own property, and rape within marriage is unlawful. The law is not set in stone and never has been: history has never been a valid justification for discrimination.
What really exposes the extent of the bigotry that gay people face are the recent responses from religious groups to this government’s proposals. Same-sex marriage has been compared to condoning paedophilia and bestiality in astonishingly apocalyptic and offensive language. It is pretty clear from the response of, for example, the Catholic Church that it continues to see gay men and lesbians as a threat to society.
Even the generally mild –mannered Church of England has taken an aggressive stance. The Bishop of Leicester, Tim Stevens, has said that allowing same sex couples to marry would leave the institution of marriage ‘hollowed out’ and reduced to a ‘consumerist’ and ‘content-free’ agreement. The Church of England describes the possibility of gay marriage as the biggest threat it has faced for 500 years, at the same time as purporting to offer support to the gay community.
The message is clear: we should be grateful for what we’ve got, and not expect to be offered the same opportunities as heterosexuals. We should accept that our relationships are worth less that straight relationships and for that reason must bear a different label.
Because what it really comes down to is the only possible reason for opposition to gay marriage: that gay sex is wrong. Not just wrong, but icky and corrupting and offensive. Marriage is much less about procreation than the validation of sex, taking desire and putting it into a format which society and religion can accept. Most opponents to gay marriage are so obsessed with the implications of society validating gay relationships and gay sex that they forget what it is that gay couples want from marriage, which is exactly the same as everybody else: a public show of commitment, a celebration of enduring love, and a state-sanctioned format in which to grow old together and raise their children.
I support the couples who want to do that, even if I am unlikely to be weeping in the aisles. What is even more important in my view is the message that we need to send. By supporting gay marriage, you are saying that gay relationships have the same worth as straight ones. You will be telling the people who see us as a threat to children that they are wrong, and the churches that they are out of step with the rest of society. I hope this post will have persuaded you that that does need to be said.
Today is the last day to respond to the government’s consultation. For anyone still in doubt, here is a graphic demonstration of the likely consequences of gay marriage:
Fab post. I totally support gay people having the same rights as heterosexuals. Why should what someone does in the privacy of their own home dictate how society views them? And the church is hypocritical. Does the Bible not teach God loves each + every one of us. People are choosing to spend their lives together and they shd be lauded for having the courage to fly in the face of society’s expectations.
I disagree about marriage being available to people in same-sex relationships as, quite simply, they are unable to fulfill in natural terms the stated purpose of being able to have children themselves.
Now before you disagree, yes I am aware of alternative methods BUT they are not producing a child which is the biological genetic combination of them both and that, to me, is a major issue.
The religious issues are well-rehearsed elsewhere but marriage is more than a ‘civil partnership.’
I always get twitchy when the word “natural” pops into discussion about same-sex relationships. Talking about what’s natural is a cowards way of saying that same sex relationships are somehow UN-natural isn’t it?
The logic of your comment is that we should annul all marriages of all infertile couples or those who have relied upon egg or sperm donation? Or those who don’t want to have children?
Marriage may be more than a civil partnership, but why can’t it signify what individual couples choose it to signify? Is a childless marriage less valid or the child of an unconventional conception or relationship to be considered a child brought up in a second rate family? An unnatural family?
as an offspring of lesbian parents, i’d say i turned out pretty okay, despite not being my mum’s partner’s biological child. but feel free to mansplain 🙂
Thank you for such a wonderfully clear-headed article. It does seem that there are people who see homosexuality as something shameful and furtive, and would rather keep it that way.
But there is a more fundamental issue at stake, which is about women and men, rather than straights and gays. Gay people have always been free to marry, just not to marry the person they would want to marry.
The law needs to be clear about the differences, or lack of difference, between men and women. So do religions. We have got used to the idea that women have souls, and are allowed to own property. If two people can have a mortgage together, run a business, and love one another, why might they not be allowed to marry?
Is the logic of Philip Measures’ post is that there should be no marriage after menopause?
To me, marriage is not an institution; it is a personal declaration of the commitment of two people to each other. Why should the fact that two such people happen to be of the same gender undermine or affect the decisions or feelings of others?
In respect of ‘natural’ you would surely fully accept that 2 same-sex people can not conceive together and produce a child of that union made up of a combination of both of their genetic material – so they are, as a couple, incapable of producing ‘issue’ together.
Many heterosexual couples cannot, or choose not to, conceive but fulfill the legal definition / requirements of what marriage is.
It is not all about equality – and, at the expense of verging on the religious, its origins and whole original basis is that a man and a woman enter a union together – not 2 people of the same gender.
So ‘Lozzie142’ can’t have it both ways. If you have a firm religious faith and belief (and not just a christian one) and seek to follow what your Holy Book says then same-sex unions are not wrong or ‘sinful’ necessarily but if they become ‘sexual / carnal’ then religiously they are.
I accept the first proposition Philip. It’s what the word “natural” comes loaded with ideologically that concerns me.
You refer to heterosexual couples you refer to who don’t conceive but fulfil the legal definition of marriage – why cannot there be homosexual couples who also don’t conceive but who fulfil the legal definition of marriage? It is of course correct to say that marriage has always been one man and one woman – so far – but until it was changed marriage was also the mechanism through which a woman’s legal identity was terminated, rendering her chattel. The legal definition of marriage has changed and is capable of changing in future. The legal definition of marriage is capable of being whatever we want it to be. The question is whether it SHOULD encompass same sex couples and putting forward the argument that “it hasn’t yet” doesn’t address that question.
You are absolutely correct, of course, ‘familoo.’ Whilst the legal definition is capable of further change it is based on religious principles which, as you are fully aware, are extremely important and ‘non-negotiable’ to perhaps the majority of people who hold them.
So whilst the legal definition can be changed I would submit that the religious never will – there will be some happy to see it change but the majority, I have no doubts at all, will never accept same-sex’marriage’ as being religiously acceptable.
In reality I believe that whether you agree or disagree that it ‘SHOULD encompass same sex couples..’ it never will be accepted and so it is better to retain the differences and avoid huge State v Church conflicts.
The differences between people who adopt the ‘human rights’ approach v those who adhere to the relgious will never be resolved. In any case, why do the minority want to be associated with the majority when their legal rights within a Civil Partnership can be equally safeguarded?
But nobody is talking about redefining religious marriage! The whole debate is about a redefinition of civil marriage. The churches can, frankly, adopt whatever approach their members sanction (although whether in fact the C of E membership ARE in fact opposed to same sex marriage is an open question). I don’t really see that a hypothetical fear about some kind of state v church conflict is a reason for the state to leave a discriminatory situation unresolved. That goes no further than to say that “the church wouldn’t like it so we’d better not”. There are lots of things that religious groups don’t like, but we are not run by the church, we are run by the state. I appreciate the historical significance of the link between C of E and state in this country but ultimately the state’s first duty is to the population – including but not limited to the religious amongst us.
I suspect that at the time most big social and legal changes were enacted many observers thought that it would never catch on or be accepted but here we are with a female vote, women who are able to own their own property, run their own affairs and decide who they want to have sex with (to give just one set of examples). Public policy can drive changes in social attitudes rather than just responding to them (one rather different example is drink driving).
Absolutely brilliant!!!
Perhaps you would like to comment further on the position of the Monarch who in the UK is also Head of the Church of England. It is not easy to separate Church and State although I would personally be in favour of it!
I also do not think that you can realistically have ‘religious marriage’ and ‘non-religious marriage’ – and therein lies what I feel is an irreconcilable conflict.
I’m no constitutional expert but I just don’t think you can draw a straight line from same sex CIVIL marriage and the position of the Queen as head of church and state and say If A then B. Separation of church and state would be just fine by me but I don’t think that this proposed legal change will cause it.
I’m not sure if I’ve misunderstood your second paragraph but – I was married in this country and I chose a CIVIL ceremony. I didn’t want to get married in church and religious text were prohibited in my wedding ceremony by the registrars. If there is an irreconcilable conflict it already exists and it exists in this jurisdiction.
Oh, and I didn’t promise to obey either. Which at one time would have been considered a key component of marriage between a man and a woman. Sadly my husband wouldn’t promise to obey me instead, but we work around it.
I see where you are coming from and no, I wasn’t sufficiently clear in my 2nd paragraph.
I should have stated that ‘religiously’ you could not have both as most churches would not agree to ‘marry’ same-sex couples for religious / biblical / other Holy Book reasons. Any move to force that issue would bring about a Church and State split I feel sure.
As for Registry Office (or equivalent) marriages then they too, as you are aware, are restricted to male / female partnerships and so, yes, a change in the law to facilitate same-sex ‘marriages’ would be possible but the ‘churches’ would never recognise them as valid religiously and so, again, that would result in a church and State split.
Ok, last comment tonight. There is no move to force religious organisations to marry same sex couples. The Bishop of somewhere I forget raised this spectre on the Today programme this morning saying that someone would launch a human rights act challenge and force them to, but most legal commentators (as opposed to those with religious expertise saying what they think the law is) say otherwise (see liberty’s press release today).
You accept that the law could be changed to provide for same sex registry office / civil marriages but that the churches would never recognise them. So what? That’s for members of the respective religious bodies to argue about isn’t it? The Church of England has many members, some gay, some straight, some (of each persuasion) in support of same sex marriage and others not. They need to work that out. Doesn’t stop the rest of us getting on with life whilst they argue amongst themselves does it?
Thanks for your comments by the way Philip, even if we don’t agree.
Yes I love that graphic – says it all!
As Lucy says, the government’s changes would not require any religious group to marry same-sex couples. The legal consensus (see Lucy Scott Moncreiff on the Today Programme yesterday and Adam Wagner in the Guardian) is that the Church of England is wrong to assert that it and other churches would be vulnerable to court action if they refused to marry gay couples: I won’t repeat the arguments which Adam has set out in his article.
This position would simply continue the current situation which is that some couples are able to access civil marriage but not religious ceremonies, e.g. divorced people who are not able to remarry in the Catholic church. I just don’t accept that the religious beliefs of some groups – cf the Quakers and liberal Jews who are vigorously in favour of marriage equality – should carry more weight than the opinion of the public as a whole, which according to the Evening Standard is 70% in favour of same-sex marriage.
I do appreciate the courteous way in which you have couched your arguments – I wish that all opponents of gay marriage were as measured.
I don’t give a flying monkey’s whether someone is gay or straight, married or civil partnered.
However, in my own tiny mind, marriage is religious.
I don’t believe that heterosexual couples ‘marrying’ in civil ceremonies is marriage.
Civil ceremonies should be civil partnerships, gay or straight.
Religious ceremonies should be marriage, gay or straight.
I am atheist. And straight. Ish.
Not sure how that helps or hinders the argument.
Coming from a religious background that vigorously resists gay marriage, I would like to entirely agree with Stephen Twist. It seems to me that there are two reasons to support this proposal. First, why should gay people be discriminated against? Are we really saying that your sexual orientation should stop you getting married? Anyone out there into S & M? Rubber? Shoes? Because once we define marriage as a relationship between 2 people who do what we approve of, that’s where this discussion is headed. Given that I don’t speculate about what my heterosexual married friends do in their bedroom, I’m uncertain why the thinking about gay marriage should focus on the private life of the couple. Unless, of course, everyone should be forced to answer a questionnaire.
Secondly, I thought we were desirous of a world where people commit to each other and pledge to work through the bad times, providing an environment where children grow up knowing they’re valued. Apparently so, unless those people are gay.
Personally I would like to see Church (and Synangogue and Mosque) weddings for gay couples. In this day and age, where God can be declared not to exist (and aren’t we lucky He doesn’t make the same declaration about us?) I’d have thought that a couple who would still like God to be part of their relationship would be welcomed by us. If God disapproves the happy couple with have eternity to discover why. Although – according to the batty logic of this particular fundamentalist argument – they will be let off because they weren’t actually married, due to the backsliding of the Priest/Vicar/Rabbi/Imam who cannot therefore be regarded as properly ordained.
Simon Myerson’s logic is deeply flawed, I fear. Something that occurs all too often when emotion overtakes a more dispassionate consideration.
The ‘church’ would by and large condemn any same-sex sexual relationship regardless of the ‘married’ state because of the statements / precepts / commandments of the respective Holy Book – just as it condemns adultery and fornication. So the ‘same sex’ couple would not be ‘let off because they weren’t actually married…’
You either choose to follow your own specific faith / religion / denomination or not dependant on what its teachings are.
I’m with WorldofSab on this.
Government should only offer civil partnerships.
If you want a marriage, you can see if a church will give you one. The church can continue to discriminate as they see fit.
I appreciate my plan comes slightly unstuck – as there are millions who are Registry Office “married”.
Nevertheless, the simple solution seems to be open up civil partnerships to both gay and straight couples – and leave marriage to the church.
Some other examples of unnatural phenomena to assist people in deciding whether to resist change on the basis it flies in the face of history:
-dishwashers
-clothes
-roller skates
-contact lenses
-anaesthetic
I was brought up in a traditional household and along with same sex marriage would support all of the above being banned.
I think you’re right Kris
“raise their children”
I’ve seen the debating points pro on this, they go: it’s just the same as step-fsmilies or children can lose a parent through death or there are plenty of single parents so it’s obvious nobody much needs a dad.
But in these instances nobody has to have a fraudulent document as a birth certifcate and so the donor-conceeived would like equality too, they want a real birth certificate, something alot of people take for granted and so here is a link explaining more, you see not all off-spring are happy in spite of the fertility industry’s “gift of life” USP.
http://www.tangledwebs.org.uk
Could we just look at this issue for one moment from a legal perspective? After all, the government did ask in its consultation for assistance with how same sex marriage was to be instituted.
Proposition 1 – there is no such thing in English law as religious marriage. If you don’t believe me, read the Marriage Act 1949. It’s not there. You’re either married in accordance with the law or you’re not married at all.
Proposition 2 – so we’ll need to repeal the Marriage Act and replace it with something which does define civil marriage and religious marriage.
So here’s the question – how do we define religious marriage? What is a religion in the first place? On the last census form there was a question about religion and I believe there was quite a substantial number who declared their religion as Jedi – 390,127 apparently.
And the next question – what will be the rights in law of those who undergo a religious marriage as opposed to a civil marriage? And why?
I blogged about all this last week and to save having to rewrite my earlier thoughts, they can be seen here:
http://austinkempfamilylaw.blogspot.co.uk/2012/06/how-many-types-of-marriage-are-there.html
Thanks Jonathan – REALLY interesting article by you. Also read this one today in the Telegraph: Civil Partnerships should have been called marriage, says top divorce lawyer, which deals with similar issues.
But is it not helpful to know that when someone says that they are married that they are married to someone of the opposite gender?
Imagine if there were same-sex marriages – could you be sued for asking if they were in a same-sex marriage or not?
To change the law would raise infinitely more questions than answers and permanently set the State against the Church.
Why would you need to ask them if they are in a same sex marriage? Who cares? It’s no different to asking if someone is married to the father of their child or not, whether they are Mrs or Ms…Of course people will make assumptions about the shape of your family and get it wrong, but I don’t think that a little awkwardness on introduction or interview is a justification for not permitting same sex marriage.
For the purposes of divorce, there is such a thing in law as a “religious marriage,” although it applies mainly to Jewish couples. It’s the Divorce (Religious Marriages) Act 2002.
It seems to me that this entire debate should have been dealt with before the CPA 2004 came into being. Rather than passing a fresh piece of legislation, giving largely the same rights to same sex couples in civil partnership as those afforded heterosexual couples in marriage, why didn’t they just repeal section 11(c) of the MCA 1973?
Unless I’m missing something obvious, I suspect it was just postponing the inevitable controversial debate.
But wasn’t the whole thing with the CPA 2004 that it was a fudge that avoided the squeamish having to think about the nuts and bolts of consummation and adultery? Civil partnership is like marriage but without the bits that require one to contemplate the sexual act – isn’t it? To spare the blushes of the house.
Excellent post.
Philip Measures:
I am also puzzled as to why you need to know whether someone’s spouse is the same gender as them or not. And I don’t think that that is a legal issue. People already refer to gay couples as being married, and use the terms ‘husband’ or ‘wife’
I don’t see that “To change the law would raise infinitely more questions than answers and permanently set the State against the Church”
What questions would it raise?
I suspect it wouldn’t “permanently set the state against the church” – there are clearly anti-equality elements in the CofE, some of them in prominent positions, but there are also a lot of members of the church who are supportive of equal rights. And institutions change. Today’s young, tolerant, activist vicars and curates are tomorrow’s bishops. I think at worst it would mean a temporary coldness.
But even if there were to be a permanent split, that’s really no bad thing. It’s arguable that having any (or any single) religion as part of the state is anachronistic and unnecessary. And I suspect, too, that the CofE has more to lose by disestablishment that the state does
Kris – let’s do it the other way round.
Open up marriage to everyone, and leave religious add-on’s to the churches.
Marriage is a legal, not a religious institution, so offer everyone equal rights to get married. Marriage is also a well understood and recognised state – civil partnership is not.
Those who want to, can have a religious ceremony as well. They can call it a “religious partnership” or a “religious marriage” or a “handfasting” or “sealing” or whatever else they wish. After all, this already happens – churches have some discretion about who they marry, and those whose onw church is unwilling to marry them, due to issues such as one partner having been divorced, or being of the ‘wrong’ faith, marry in a civil ceremony, and often follow this with a blessing. This would seem to be the most obvious solution.
Of course churches could then apply for licences to perform [legally recognised] marriages, if they wished.
For Jews, Christians, Muslims etc, marriage IS a religious ‘institution’ of far higher moral and ethical values than a civil one.
Yes, but how is that changed by extending equal rights to same sex couples? The fact that a same-sex couple can get married has no effect whasoever on the personal or religious life of anyone not a party to that marriage.
We are talking about the legal institution, not the religious one. There are lots of religious ceremonies and institutions which don’t have a legal counterpart, or which are not legally recognised. That doesn’t make them any less meaningful to the people who follow that religion and carry out those ceremonies.
Also, I’m unclear as to what you mean by ‘higher’ moral and ethical values?
The legal and religious views about marriage may be different, as may the views about the obligations and expectations held by different religions, different groups within those religions and different individuals within those groups, but it is hard to see what relevance that has to the legal one group in society should be discriminated against.
So, why would identifying civil marraige, (available to all) as ‘marriage’ and allowing churches and other religious groups to have their own religious ceremonies not be a viable csolution? The churches can then dfine ‘church marriage / chrstian marriage / CofE marraige / Cathlic Marraige / Jewish Marraige / Islamic marriage, as they wish, in accordance with their own interpretation of the ethical and moral standarads they beive in.
There are (still) self-identified christians who would argue that marriage between people of different races is wrong, there are certainly people of many relgions who don’t consider that a marriage performed outside their own church is not ‘real’ – neither of which would be accepted as being a valid reason why the *law* should not recognise those marriages.
You haven’t answered my original question – what are the questions which changing the law would raise? How and why woulda change in the law ‘permanantly set the state agaisnt the church’?
Let me answer the last question first, Marjorie and by doing so perhaps it will clarify the first one.
The majority of Christians, Muslims, Sikhs, Orthodox Jews etc. whose ‘holy books’ address the issue of marriage see it as unquestionably a Divine Institution and, therefore, ordained by God and not able to be altered by men and women. For many more devout Christians it symbolises the love of Christ for the Church and, not therefore, a bond which can or should be broken and is between a man and a woman. I don’t want to start quoting supportive scriptures – but I can if you wish!
Going back to Adam and Eve in the Old Testament marriage is spoken of throughout the Bible and clearly is the union of a man and a woman.
So, that, in a nutshell is where many ‘people of faith’ are coming from. They see same-sex sexual unions as wrong and that ‘marriage’ is not an option.
Philip,
I understand that some religious people hold those views. Equally, there are many religious people who do not hold those views, ans who activly support marriage equality, just as there are some religious people who have a problem with women priests, and others who actively support them. Both groups can interpret scripture to support their position.
Quoting scripture gets one into very deep water, very fast. For instance, scripturally, polygamy, divorce, forced marraige are all santioned, as is a bar on marraige between people of difference races, and a lot of gender discrimination and inequality (and that’s only in looking at issues relating to marriage. Looked at more widely, there are plenty of things which are anctioned by the Bible which are unaccapetable or criminal or both, in modern society.
Marriage is not the first issue where (some) religious people have been in conflict with wider society – the ‘State’ if you wish. That hasn’t, doesn’t and should not prevent that state from changing the law.
As I suggsted further up the thread, one very simple way forward is to define marraige as the LEGAL bond between two people, and allow religions to define ‘religious marrige / church marriage, or whtever else they wish to call it, in their own terms.
The fact that some religious people will not like the change is not the same as saying that there will be a permanent breach between church and state, and it doesn’t really raise any new question. There have been splits in the church before – it’s niot a new issue. If [a group within] the CofE doesn’t want to be associated with a state which supports marraige equality they don’t need to be. They can strike off on their own, just as John Wesley did, just as groups such as Jehovah’s witnesses, 7th Day Adventists, Methodists, Unitarians and dozens of others have done.
This is a legal, not a religious issue. I was asking you to idenitify the Legal issues / questions you feel are raised. Your answer simply re-hashes [one particular] religious argument.