Sex, Lords, and Church Weddings: The Legal Labyrinth of Gay Marriage
From a Guest Blogger: In the midst of the ongoing gay marriage debate, the Government has faced calls to extend civil partnerships to heterosexual couples. After all, isn’t banning heterosexual couples from civil partnerships just as discriminatory as banning gay couples from marrying? The Guardian reports that one minister was confronted about the situation of heterosexual couples ‘who might not share her enthusiasm for marriage, believing it to be oppressive to women and historically born out of a patriarchal system’.
The minister’s answer was – in my view – sensible. ‘We don’t’, she argued, ‘feel there is either a necessity or a requirement to open up civil partnerships to heterosexual couples’ because they do not lack the ability to formalize their relationship in a legal manner. That ability, she noted, is ‘already there for heterosexual couples. It’s called marriage.’
As I say, a sensible response. The kind of ‘equality’ the State has an interest in securing is equality under law. Legally speaking, marriage requires neither patriarchy nor oppressing women, and it isn’t the Government’s problem if radical feminists simply don’t like the word ‘marriage’.
But the Government’s response also begs the question of what legal need is being addressed through the introduction of same-sex marriage. Gay couples already have the ability to formalise their relationships through the civil partnerships scheme and, just as the Government is not obliged to redefine civil partnerships to make radical feminists feel good, it isn’t obliged to redefine marriage just to make gay couples feel included, either. Some gay rights groups complain that civil partnerships don’t carry the same ‘emotional resonance’ or ‘social weight’ as marriage. But again, this isn’t the Government’s business. The responsibility of legislators is to make law, not to redefine social or cultural norms to make people feel nice. The Government has provided gay couples with a legal instrument that gives them broadly the same rights as married couples. It is up to gay activists to try and convince the rest of society that this instrument – and their relationships – should be afforded the same dignity society affords to heterosexual marriage. If they have failed to do this, it is not the role of the State to try and do gay activists’ work for them.
Lord Hailsham famously remarked that the British Constitution is like a wall: if you take a brick out, the whole edifice may collapse. The oldest part of the law regulating marriage currently still in force is an Act passed by Parliament in 1285, during the reign of King Edward I, and there are over 8,000 legislative references to ‘marriage’ and related concepts like ‘husband’ and ‘wife’. Perhaps the Government ought to think less about social engineering and more about the legal problems involved in redefining something so embedded in our legal system. Let’s look at a few of these problems:
Consummation: The Matrimonial Causes Act requires an act of ‘ordinary and complete’ intercourse in order for a marriage to be considered valid. Last year The Sunday Times reported that civil servants had ‘been considering the intricacies of gay sex for months and have taken evidence from sex experts and gay rights organisations in an attempt to define consummation between two women and between two men’.
As amusing as it is to imagine bowler-hatted and pinstripe-suited Sir Humphreys sipping Ceylon tea with the ‘sex experts’, there is a serious point here. A key difference between marriage and civil partnerships is that marriage legally recognises and honours a sexual relationship. This is precisely one of the ‘inequalities’ that advocates of gay marriage have pointed to as a reason for allowing same-sex couples to marry. If a separate definition of consummation is adopted for gay couples, this would perpetuate a system which gay activists decry as a form of ‘sexual apartheid’. But if the consummation requirement is scrapped, or the general definition is changed to accommodate gay sex, the Government will be forced to admit the truth that gay marriage is not merely a matter of expanding the current institution to include homosexuals but radically redefining it for everyone – something it has attempted to deny until now.
Divorce: Britain still operates a largely fault-based divorce system, and one reason consummation has legal importance is because couples who have not consummated their marriage can file for a speedy annulment without going through the divorce process which takes several years. Given that most people get married with the expectation of a sexual relationship, consummation is also important because, under a fault-based system, refusal of sexual intimacy can be construed as ‘unreasonable behaviour’. Britain could overhaul its entire divorce system, but is it worth it simply to canonise gay sex in the law? Expanding the provision for no-fault divorces would also undermine the stability of marriage, which was why the idea was scrapped by the previous Labour administration.
Religious ceremonies: marriages can legally be celebrated in church and even civil ceremonies may include elements of religious worship. Civil partnership ceremonies were originally forbidden from including religious elements but this prohibition was lifted in 2011. Churches may now host civil partnership ceremonies, though most – including the Church of England – refuse to do so. How will same-sex marriage change this situation? It won’t. In fact, for constitutional reasons the Church of England will be legally forbidden from performing same-sex weddings, and so it will be easier for a gay couple to have a civil partnership ceremony in church than a marriage ceremony! Gay couples choosing marriage will therefore actually have fewer rights to religious ceremonies than if they chose a civil partnership.
Peerage: the spouse of a male noble has always been given a courtesy title, and it is difficult to imagine how this would be handled if the UK introduced gay marriage, even though it is one of the few concrete legal ‘inequalities’ between marriage and civil partnerships that gay marriage advocates are able to point to. Would this mean that David Furnish, Sir Elton John’s partner, would become Lady David? He cannot be called ‘Sir’, since this would imply equivalence of rank with Sir Elton, and the reason knights’ wives are called ‘Lady’ rather than ‘Dame’ is to avoid implying equivalence of rank. And what if, in the future, Britain has a gay King? Calling his partner ‘Queen’ is more of a homophobic insult than a courtesy title, but he cannot be ‘King’ since, again, this implies equivalence of rank.
As amusing as these questions might be, they highlight an important point. There were nobles in England before Parliament ever existed, even before the Norman conquest of 1066. The peerage is like marriage. It is an institution that existed before the modern State. In both cases, the Government is at liberty to recognise and legally establish these pre-political institutions or not, but it has no right to redefine them.
I could go on at length to explain some even more serious problems – the grave threat that gay marriage is likely to present to religious liberty, or to the relationship between Church and State, for example; but I have made my point. In so many areas, the Government’s attempt to legislate for same-sex marriage has run up against a brick wall erected by nature. Whether we like it or not, heterosexual and homosexual relationships are different. Reasonable people can disagree on whether that difference has any moral significance but only a fool can deny that there is a difference there. If the Government took some time off from grandstanding and social engineering for a moment and immersed itself in the business of the law (which is, after all, what it is meant to be doing), it would see that its plans to introduce gay marriage create a host of legal problems which have led even supporters of the idea such as former Home Secretary David Blunkett to brand the legislation a ‘complete dog’s dinner’.
Aaron Taylor is a Ph.D. student in ethics at Boston College