So, I've been reading the Government's Equal civil marriage: a consultation. Regardless of where people stand on the issue, they should quickly realise that it's a shoddy piece of work, undermined by the fact that its authors clearly don't know what they're dealing with.
I've just been glancing through it today, and think it might be worth getting a few of my thoughts down. For future reference, if nothing else.
A Couple of Oft-Misunderstood Points
In reading it, it's crucial to remember two things.
- Weddings and marriages are not the same thing. A wedding -- otherwise referred to as a marriage ceremony -- is an event. This event gives access to marriage, that being an institution.
- There is no legal distinction between civil and religious marriages. There are legal distinctions between civil and religious marriage ceremonies, but that's it. In English law, it is legally meaningless to speak of either civil or religious marriage. There is only marriage. That's it.
Bearing that in mind, you should realise that the document is misnamed. It's impossible to speak of 'equal civil marriage' in a meaningful British context; one can only speak of 'equal marriage'.
Of course, those of us who subscribe to the Universal Declaration of Human Rights are already signed up to the concept of equal marriage; men and women, it says, have the right to marry and found a family, with both men and women being entitled to equal rights as to marriage, during marriage, and at its dissolution. Calling 'same-sex marriage' 'equal marriage' is an Orwellian hijacking of an established term.
And before anyone pipes up, there's a reason why both the Universal Declaration of Human Rights and the European Convention on Human Rights speak of men and women in their articles on marriage; they specifically mean that men and women have the right to marry each other.
We have to read the documents in their entirety, and not look at articles in isolation. Both documents speak of 'everyone', 'all', and 'no one' in all their other articles, but specifically refer to 'men and women' only in their articles on the right to marriage.
If that sexual complementarity wasn't important, why not just say 'everyone' again? And why link 'men and women' to the foundation of the family, that being 'the natural and fundamental group unit of society', if the Declaration isn't about how families can be naturally founded? In nature, as Camille Paglia puts it, 'procreation is the single, relentless rule'. I'm pretty sure Darwin said similar things.
And before anyone pipes up, there's a reason why both the Universal Declaration of Human Rights and the European Convention on Human Rights speak of men and women in their articles on marriage; they specifically mean that men and women have the right to marry each other.
We have to read the documents in their entirety, and not look at articles in isolation. Both documents speak of 'everyone', 'all', and 'no one' in all their other articles, but specifically refer to 'men and women' only in their articles on the right to marriage.
If that sexual complementarity wasn't important, why not just say 'everyone' again? And why link 'men and women' to the foundation of the family, that being 'the natural and fundamental group unit of society', if the Declaration isn't about how families can be naturally founded? In nature, as Camille Paglia puts it, 'procreation is the single, relentless rule'. I'm pretty sure Darwin said similar things.
There's a handy annex at the back, including all questions being asked, and it gets interesting if you edit them to reflect legal reality. Look at questions five and six, for instance.
- Question 5: The Government does not propose to open up
religiousmarriage to same-sex couples. Do you agree or disagree? - Question 6: Do you agree or disagree with keeping the option of civil partnerships once
civilmarriage is available to same-sex couples?
Yep, utter gibberish. Questions five and six make no legal sense unless the Government is planning on legislating to create new institutions called 'religious marriage' and 'civil marriage'. As it stands, there's only the one institution, which we call marriage, and which has been defined, since at least 1662, as being the union of a man and a woman primarily for the purpose of bearing and rearing children.
Should Marriage Be Redefined?
People who have issues with the whole idea of truncating the definition of marriage such that it's reduced merely to a bond of commitment between two adults, and who believe that we shouldn't be casting aside the one institution that has always upheld the ideal that children should always be raised by their mother and father, will want to pay attention to the following four questions in particular:
- Question 1: Do you agree or disagree with enabling all couples, regardless of their gender to have a civil marriage ceremony?
- Question 2: Please explain the reasons for your answer. Please respond within 150 words.*
- Question 14: Do you have any comments on the assumptions or issues outlined in this chapter on consequential impacts? Please respond within 1,225 characters (approx 200 words).
- Question 16: Do you have any other comments on the proposals within this consultation? Please respond within 1,225 characters (approx 200 words).
Granted, the Government may just smile indulgently at your concerns, as section 2.8 of the consultation document makes it clear that the Government plans on redefining marriage whether people like it or not.
Early Problems
Looking at the consultation, and bypassing the erroneous title, things get messy very quickly in the ministerial forward. Same-sex couples, we're told, have access to the same civil rights as married ones, bar the ability to be married and the ability to say they're married.
It's an odd sentence, and not merely because it wouldn't take much to say 'opposite-sex couples have access to the same civil rights as same-sex ones, bar the ability to enter into a civil partnership and the ability to say they're civil partners', which for some reason the government doesn't see as an injustice in need of rectifying.
No, as we all know, the Government's claim is not quite true. I'm pretty sure 'marriage' isn't a protected term in Britain. While they may not be able to say so for legal purposes, couples in civil partnerships regularly say that they're married, and so do lots of people when talking about them. What's being proposed here is that others should be compelled to accept that same-sex couples are married. That's a rather different thing.
It's an odd sentence, and not merely because it wouldn't take much to say 'opposite-sex couples have access to the same civil rights as same-sex ones, bar the ability to enter into a civil partnership and the ability to say they're civil partners', which for some reason the government doesn't see as an injustice in need of rectifying.
No, as we all know, the Government's claim is not quite true. I'm pretty sure 'marriage' isn't a protected term in Britain. While they may not be able to say so for legal purposes, couples in civil partnerships regularly say that they're married, and so do lots of people when talking about them. What's being proposed here is that others should be compelled to accept that same-sex couples are married. That's a rather different thing.
And then, lest we think that that was just a slip, we see the false distinction between civil and religious marriage rearing its head before the page is out:
'That is why we are, today, launching this consultation to seek your views on how we can remove the ban on same-sex couples having acivilmarriage in a way that works for everyone. We are clear that no changes will be made to how religious organisations define and solemnizereligiousmarriages and we are clear that we will retain civil partnerships for same-sex couples.'
Obviously, I've tidied it up a bit. The 'topic' section on the next page, headed 'About this consultation', blurs issues in exactly the same way, making the law seem a lot simpler and more compartmentalised than it really is:
'This consultation seeks your views on how to provide equal access tocivilmarriage for same-sex couples.
The Government is focused on looking at this specific issue and is not considering wider reforms to marriage. It is therefore not considering any reforms toreligiousmarriage. Neither does this consultation look at opposite-sex civil partnerships.'
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.
Was the Government Listening?
Most of the 'Executive summary' is fair enough, though 1.4, 1.5, 1.8, 1.9, 1.10, 1.11, and 1.12 feature these absurd phrases 'civil marriage' and 'religious marriage' again and again; it falls apart at 1.7 in more ways than one.
'We have listened to those religious organisations that raised concerns about the redefinition ofreligiousmarriage. We are aware that some religious organisations that solemnize marriages through a religious ceremony believe that marriage can only be between a man and a woman. That is why this consultation is limited to consideration ofcivilmarriage and makes no proposals to change the way thatreligiousmarriages are solemnized. It will not be legally possible under these proposals for religious organisations to solemnizereligiousmarriages for same-sex couples. There will therefore be no obligation or requirement for religious organisations or ministers of religion to do this. It will also not be possible for a same-sex couple to have a civil marriage ceremony on religious premises. Marriages of any sort on religious premises would still only be legally possible between a man and a woman.'
Let's read that backwards, starting with the last line. Marriages on religious premises will be illegal unless they're between a man and a woman. Ah, but the government means weddings, doesn't it? Otherwise a same-sex couple, married in the eyes of the State, would cease to be married once they stepped into a church. Think about it.
Perhaps more importantly, we have that wonderful statement that the consultation is only about civil marriage and not about religious marriage, even though they're the same thing.
And oh, look at the opening statement about the religious organisations that raised concerns about religious marriage. Did they really, Theresa and Lynne, did they really? Or did they raise concerns about marriage? Because I know the Church of England understands full well that in English law, there's no such thing as religious marriage, and I can assure you that the Catholic Church does too. So did they not make themselves clear or did the Government misunderstand? What exactly is going on here?
The Heart of the Matter
I'm tired of crossing out errors, but you'll see them again at 2.1 and 2.2. More interestingly, and in support of what I've been saying, 2.4 and 2.9 say basically the same thing, which is that there's no legal distinction between civil and religious marriage; it recognises a distinction between civil and religious weddings, but marriages are all deemed identical in law. Here is how 2.4 starts:
'There is, however, no legal definition of religious and civil marriage. Marriage is defined according to where it can take place, rather than being either specifically religious or civil.'
Obviously, the second sentence should read 'Weddings are defined according to where they can take place, rather than being either specifically religious or civil', but let's stay with the key fact that there's no legal distinction between religious and civil marriages. When government ministers or advocates of redefinition speak of 'civil marriage' or 'religious marriage', they're playing further Orwellian word games, making things sound neat, tidy, and easy to change. They're trying to make the whole project of redefinition sound reasonable, and playing down the effect it will have.
Marriage is a single phenomenon, the basic building block of British society and something integral to the British legal system, referred to 3,000 times in current law, not least in the official Anglican prayerbook, which is licensed by Parliament. There's no way this is going to be straightforward.
Marriage is a single phenomenon, the basic building block of British society and something integral to the British legal system, referred to 3,000 times in current law, not least in the official Anglican prayerbook, which is licensed by Parliament. There's no way this is going to be straightforward.
Would the Anglicans be obliged to celebrate Same-Sex Weddings?
2.10 and 2.11 are intended to allay the fears of those who fear Anglican ministers in particular would be obliged to celebrate same-sex weddings. The problem with these two sections is that they both perpetuate the myth that civil and religious marriage are different things. Given the way equality legislation works and how there's no distinction between types of marriage in British law, I think the Anglicans can be forgiven for being rather concerned that the Government's assurances can't be worth whatever paper they're written on; all else aside, would you trust them?
Because let's not kid ourselves: there are people who would happily see Christians criminalised for their views on what marriage is.
And What of Hate Speech?
2.12 is very slippery, and worth quoting in full:
'We are also aware that the doctrines of many faiths hold the view that marriage can only be between a man and a woman, and this belief is contained within the teachings of their faith. We are clear that no one should face successful legal action for hate speech or discrimination if they preach their belief that marriage should only be between a man and a woman.'
Yes, those are my italics. Note the shift from 'can' to 'should'. What would happen if someone -- an Orthodox Jew, say -- were to argue not that marriages should only be between a man and a woman, but that marriages can only be between a man and a woman? What if that same Jew were to argue that the same-sex unions the government called marriages were nothing of the sort?
The rather more vague 2.39 seems to clarify this, saying that there'd be no affect on religious organisations' ability to teach and preach their beliefs on the definition of marriage. If this, rather than 2.12 is to be the guiding principle here, it seems religious bodies are to be given the right to deny the authority of the state, which is nice though an odd thing to legislate for, but I'm still not convinced it works.
Religious organisations are one thing, but what of individual religious believers? It's worth remembering too that the European Convention on Human Rights recognises the right to manifest beliefs in worship, teaching, practice, and observance. Is the government saying we'll only have freedom in teaching?
This, I think, is where question 14 could come in handy. Might be worth asking for clarification on that one.
Should a Law be Deliberately Vague?
Marriages being essentially about ensuring the children are raised by mothers and fathers, it's always been the case in law that consummation -- the procreative act -- has been an essential part of a marriage; even now, failure to consummate a marriage is grounds for dissolution of a marriage. 2.15 says that same-sex marriages should be identical to marriages as they currently stand in law, which raises a bit of a problem...
2.16 is superbly fluffy in how it dodges the questions of what would constitute same-sex consummation and what would constitute same-sex adultery. Clearly not wanting to go near the issue of what that might mean, the Consultation farms off the questions, saying they'll be for the courts to decide down the line.
Marriages being essentially about ensuring the children are raised by mothers and fathers, it's always been the case in law that consummation -- the procreative act -- has been an essential part of a marriage; even now, failure to consummate a marriage is grounds for dissolution of a marriage. 2.15 says that same-sex marriages should be identical to marriages as they currently stand in law, which raises a bit of a problem...
2.16 is superbly fluffy in how it dodges the questions of what would constitute same-sex consummation and what would constitute same-sex adultery. Clearly not wanting to go near the issue of what that might mean, the Consultation farms off the questions, saying they'll be for the courts to decide down the line.
This, frankly, is irresponsible, as it means that same-sex couples won't know if their marriages are legally valid unless their sex lives are inspected in court, at which point the court will redefine what counts as consummation. Of course, since any definition of consummation that the courts come up with for same-sex couples will have to be applicable to opposite-sex ones -- all marriages being identical in the eyes of the law -- this will mean that the very notion of consummation will itself have to change for everyone.
Something of a Double Standard
2.17-20 makes it clear that civil partnerships should be maintained for same-sex couples even if same-sex marriage is introduced. On this I think Peter Tatchell has a point; it doesn't make a lot of sense to redefine marriage to allow same-sex couples to marry if we're not also to redefine civil partnerships so they can be entered into by couples of different sexes.
Indeed, a part of me is persuaded that Julie Bindel may be on the right track on this; maybe the State should just abolish marriage as a civil phenomenon, and just open up civil partnerships to everybody. That would, at least, ensure that same-sex couples would become identical in law, rather than equal, with opposite-sex ones, whilst nonetheless preserving marriage as an ideal.
Indeed, a part of me is persuaded that Julie Bindel may be on the right track on this; maybe the State should just abolish marriage as a civil phenomenon, and just open up civil partnerships to everybody. That would, at least, ensure that same-sex couples would become identical in law, rather than equal, with opposite-sex ones, whilst nonetheless preserving marriage as an ideal.
I'm not convinced some of those crying out for what they see as marital equality would run with that, though. It's very easy to change things when you think doing so will have no impact on your own life, but once you've to pay a price...
There is, of course, also the question of whether society should abandon the only institution that exists so that children are raised by their mother and father, leaving it solely to religious bodies to hold forth that ideal. This, for me, is the one serious stumbling block in this idea. Marriage is a good thing, after all. We all gain from it.
A Glitch in the Proposal
2.23 conflicts with what's previously been said 2.6 as it says that a bit of paperwork will be all that's needed for civil partnerships to be converted to marriages. Given that marriages require public vows, as described at 1.10, and how according to 2.15 the idea of this proposal is to make them identical, with both same-sex civil weddings being conducted in the same way as civil weddings are currently conducted, public vows would surely be needed.
Which is it? Vows or paperwork? Either?
A Dose of Reality
2.36 is a bit reassuring, as the government acknowledges that not all countries will accept same-sex couples as being married. This could be messy, though it's a particular hoop that Spain, the Netherlands, and a handful of other countries have jumped already.
More interestingly, 2.37 notes that marriage is a devolved issue, so this won't apply in Scotland or Northern Ireland.
I'm not sure if that means same-sex couples deemed married in England might find that they're not regarded as married in Scotland and Northern Ireland, or if it's simply the Government's way of telling gay couples that they'd best not even think of running off to Gretna Green.
_______________________________________________________
* Or 1,225 characters (approximately 200 words) according to the main text. I'm not sure why they can't even get this right. Were lawyers and proofreaders barred from looking at this ridiculous mess? Pathetic.

