Should the government legalise gay marriage? By guest blogger DT
Given the recent controversy surrounding the legalisation of same-sex marriage and its status as a cornerstone policy of our current government, I am delighted to publish a guest post on the topic.
I am most grateful to the author DT, a qualified solicitor, for some interesting insights. The writer has requested anonymity, having been the recipient of unpleasant and unwanted attention in the past.
I hope that the post proves useful to readers and look forward to your opinions.
We think we’re married, but we’re not.
We are one another’s next of kin, we have solidified our relationship legally by signing in the presence of witnesses before a registrar and we have the certificate to prove it. We have the same legal rights and responsibilities as married couples, but if it all went wrong I could not instruct Marilyn to issue divorce proceedings because we are not married. Instead, we are in a civil partnership.
What’s the difference?
The 5th December 2005 marked the commencement of the Civil Partnership Act 2004. From 21st December 2005, same-sex couples in England and Wales who were aged over 16, and were not already in a civil partnership or lawfully married, could enter into a legally binding relationship (16 and 17-year-olds with parental consent).
This was a landmark piece of legislation for many people. According to the Office for National Statistics, 85,556 people in England and Wales entered into a civil partnership between December 2005 and December 2010, which far exceeded the government’s estimate of between 11,000 and 22,000.
Prior to the legislation, the law treated same-sex couples living together as cohabitees. If they split up, they had to fall back on the same unsatisfactory laws as cohabiting heterosexual couples that had not married.
Despite many having lived together for decades, same-sex couples did not have any specifically enshrined rights prior to the legislation. Upon the death of their partner, many found themselves having to sell the home they had made with their loved one – particularly in areas where property prices were high and inheritance tax thresholds were low. They simply could not afford the tax bill as they were not entitled to spousal exemptions.
The Civil Partnership Act gave same-sex couples who registered their partnership the same legal rights and responsibilities as married couples.
But are marriages and civil partnerships all that different?
There are some minor differences between the forming and ending of a marriage and civil partnership. For example, a marriage is established when the couple exchange spoken words whereas a civil partnership is formed when the second civil partner signs the relevant document.
Furthermore there are no provisions for adultery or non-consummation within the Civil Partnership Act, which of course is not the case for a marriage. However the bit in the middle – day-to-day life together – is not defined or limited by law; it is the same as a marriage with it’s spectrum of peaks and troughs.
The government’s controversial plans to legalise gay marriage has hit the headlines again recently. Despite facing rebels who want to derail the plans, David Cameron wants gay marriage to be one of the defining policies of his premiership. Equalities Minister Lynne Featherstone is due to announce a formal consultation on the legalising of same-sex marriage next month, so strong support in favour of legalising it is already in place.
But as key politicians are backing the plans, the mainstream faiths appear to have mixed views on the matter. Some are in favour, others are against. I would say that Dr Sentamu, the Archbishop of York, appears to be the most vehemently opposed to the idea.
I am always interested to hear the religious beliefs of anybody who possesses one view or another on the idea of gay marriage. I think it’s important that such perspectives are given real thought when considering changes. Unfortunately though, the majority of negative opinions I have heard on religious grounds seem to be from people who haven’t seen a religious text since they last opened a hotel bedroom drawer and found a Gideon Bible in there.
The changing landscape of society
Groundbreaking as it was, the Civil Partnership Act was also seminal in many ways. It appears to have paved the way for more and more people to say: “So, you’re not actually married? Why can’t gay people marry?” Maybe gay marriage was considered a step too far at the dawn of the new millennium and the Civil Partnership Act was a well-meaning compromise, which satisfied (albeit some only temporarily) many across the secular, religious, academic, moral and legal platforms.
That said, the situation continues to develop. Since the act came into force, the removal of a ban on civil partnerships in churches and other religious premises was agreed via a free vote in government in a late amendment to the Equality Act 2010. And I suspect that more alterations will follow as our society and its attitudes continue to change.
The law is as dynamic as our culture and it needs to reflect the changing landscape. To me, gay marriage is an inevitable progression towards reflecting what many consider to be a more equal society.
In years gone by, being gay made many the subject of derision and ridicule. Stereotypes were heavily deployed when making jokes and jibes. If you were a gay man, it was often assumed that you would have the requisite Village People look. Similarly if you were female, you were probably a militant cropped-headed bra-burner who hung out at Greenham Common. Some may have been, but many weren’t, and the same goes for today.
Thankfully, attitudes have and continue to change for the better. Being gay is more mainstream than ever before. Alternative lifestyles and different ideas about what constitutes a ‘family’ are being mooted and increasingly accepted. What is more, the profile of civil partnerships has been raised by household names such as Sir Elton John, Matt Lucas and Mary Portas. Many of our 21st century celebrities are choosing to have their same-sex relationships registered.
The purpose of marriage
Marriage is not a modern concept. It was practiced by the Ancient Egyptians, Classical Greeks, Aztecs and Medieval Europeans and is still important to many people – both religious and secular – today. However the meaning of marriage has changed for some people over time.
For most, marriage remains a bedrock institution and represents the cornerstone of a cultured society. I therefore question why the 85,000 people in England and Wales currently in a civil partnership, or the estimated 3.5 million gay people in Britain, are prohibited from participating in this very same institution on the basis of their sexual orientation. The exclusion of any other minority group would lead to a public outcry.
Once upon a time, marriage was very much about having children and passing your genes on to the next generation, so as to keep our species thriving. This is not necessarily the case anymore and people marry for a whole plethora of reasons.
Marriage is no longer just about producing children. If it were, this would automatically invalidate infertile couples, which of course would be preposterous. Same-sex couples can foster and adopt, or have biological children of their own – and so why should they be prohibited from doing so within a marriage? I am not saying that everybody must marry but I think that all should have the choice.
English law demands that a marriage is between a man and a woman, yet increasingly society is asking why it cannot be between two adults. Over recent years, a growing number of European countries have legalised same-sex marriage, namely the Netherlands (2001), Belgium (2003), Spain (2005), Norway (2009) and Sweden (2009). So are our progressive European cousins leaving us behind?
Genuine equality or political correctness?
Gay people are not the only ones fighting for equality. There are increasing numbers of heterosexual couples who do not want to marry, however would like to enter into a civil partnership. What’s more, there are growing arguments for biologically related people to be able to enter into a civil partnership; say for example two elderly brothers or sisters, who have decided not to marry, live together and for tax reasons will be significantly disadvantaged when the other dies.
So, is this a real issue or is the government just pandering to populist ideas? Perhaps it is political correctness gone mad. After all, it shouldn’t matter what we call our legal unions as long as they provide us with benefits and responsibilities.
I say that I am married because I feel married. However there’s also the sheer verbal logistics to contend with. “Married” is easy to say. I am not aware of a suitable adjective that succinctly summarises “I’m in a civil partnership”.
I think whatever your views are about this matter you should be allowed to constructively express them without being accused of being homophobic or heterophobic.
So, what do you think? Should the institution of marriage be extended to same-sex couples? And if gay marriage was to be introduced, should they exist in addition to civil partnerships, or as well as?
Whether you agree, disagree or remain unsure, I would be interested to hear your views and reasons.
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6 Comments
Chris Sutton on February 28, 2012 at 11:30 am
I am a paralegal working in family law. A few years ago I completed a University paper on a very similar topic, mostly comparing the institution of marriage and (the newly formed as it was then) Civil Partnerships.
The differences mentioned in the blog (re. adultery not being a ground for dissolution) relate to the official definition of adultery and the requirement of penetrative sexual intercourse. My conclusions were that the government did not want to define in statute the private acts of homosexual couples and to that end decided not to include this ground in the statute. It matters little when the ground of unreasonable behaviour could be used to the same end.
The only difference of worth I found was of presumption of parentage for children within the marriage. However as same sex couples in order to have children would have to endure rigourous processes of adoption or other such medical treatments, it is my argument that this would never be an issue – the couple should probably not be bringing a child into the family if they cannot agree to register each other with full parental responsibility from the outset.
Therefore I see no reason to permit gay marriage as these arguments merely offend and degrade those who enjoy the public social commitment they have made to their partner through Civil Partnership. Arguments that encourage brothers or sisters to be allowed to enter a Civil Partnership also merely degrade what recognition a Civil Partnership has in society; which as you say yourself, is marriage in all but name, and many people themselves refer to it as the homosexual equivalent of marriage.
DT on February 28, 2012 at 3:03 pm
Hi Chris
First of all, thank you for your comments and observations.
I think that what you have said with regards to adultery in your second paragraph is correct and also for that matter, applies to non-consummation for the very same reason. Below, I have provided Baroness Scotland of Asthal’s comments relating to the matter:
“My Lords, one of the major differences is, of course, consummation. For a marriage to be valid, it has to be consummated by one man and one woman and there is a great deal of jurisprudence which tells one exactly what consummation amounts to—partial or impartial, penetration or no penetration. If the noble Lord wishes me to give a dissertation on family law, of course I would be more than happy to do so although it will take some time.
There is no provision for consummation in the Civil Partnership Bill. We do not look at the nature of the sexual relationship that enters into the civil partnership. It is totally different in nature.”
(The full version of this Lords debate can be found on: http://www.parliament.uk in the publications and records section): November 2004.
The unreasonable behaviour Fact is available to couples in a Civil Partnership and is applicable to many different scenarios – and so couples could seek to rely upon this if say one party had been “unfaithful”.
I think that there is also force in your argument that a marriage could undermine the union already made by those gay couples that have entered into a Civil Partnership, and you make a similar argument for a brother and sister union.
Perhaps we should embrace our difference and what the Civil Partnership stands for and not look for an alternative? I am, however willing to consider the idea that perhaps society has moved on since the Civil Partnership Act was introduced and instead of undermining a Civil Partnership, a marriage option might reinforce it.
ObiterJ on March 1, 2012 at 10:03 am
A most interesting and informative post. When Civil Partnerships were introduced I thought – perhaps somewhat naively – that this would be the end of this matter. Male/female couples could either marry (via religious or civil ceremony) and same-sex couples could enter into civil partnerships with almost all of the same legal rights and responsibilities as those who are married.
We are now seeing demands for same-sex couples to be able to marry. I see no reason why the law should not be amended to permit this via a civil ceremony. However, I foresee problems if the law tries to force the various religious bodies to have to perform marriage ceremonies which they consider to be outside what their religious views permit. There are also demands for (a) male/female couples to be able to enter into a civil partnership and even (b) to extend civil partnership to those who would otherwise be within prohibited degrees for marriage. I see no particular reason why (a) should not be permitted if that is the choice of that couple. I am less sure about (b) though I can see the case where, for instance, two siblings have always lived together but cannot benefit from inheritance tax provisions but maybe the answer to that is to somehow amend the law of IHT.
I would really like to see more argument from those who favour enacting law to force religious bodies to have to conduct same-sex marriage ceremonies. At first sight I feel very much against that kind of compulsion which strikes at the fundamental beliefs of many people.
(I have used the phrase “religious bodies” in a rather loose way to embrace the major religions and churches).
DT on March 1, 2012 at 3:54 pm
Good afternoon Obiter J
Your observations and comments are appreciated. Thank you.
When Civil Partnerships became available, we were delighted because we thought that we’d never acquire the social or legal status of married couples; and as we had shared assets (and a life together!), it was particularly welcome.
We never complained about the fact that we couldn’t legally marry. We’re both very pragmatic and were just happy that the Act afforded us all we legally felt we needed. Nevertheless, I suspected at the time that there would be some unhappy people on equality grounds.
The debate has quietly rumbled on since 2005 and has acquired momentum once more recently, with David Cameron’s public support of gay marriage, which he openly endorsed at the Tory Conference last year.
I would be surprised if the law were to change to allow say perhaps siblings to enter into a Civil Partnership. I can understand why many would see it as being economically attractive; however, I think this may be a step too far for some! Furthermore, if the IHT benefits were to become unavailable, I think it may loose its appeal for many in this particular group.
Right now, there’s much debate around gay marriage, heterosexuals and family members having Civil Partnerships and religious ceremonies etc. I think we need some kind of level playing or at least some kind of standardisation or we’ll end up with a multi-tiered system, which caters for many, but satisfies few. I’m not sure adding more and more options to such an important institution is the right answer.
Perhaps I’m wrong, but I can’t see the law ever forcing “religious bodies” to conduct same-sex marriage ceremonies, and I wouldn’t feel that comfortable with it either to be honest. Although if it did happen, I suspect certain exemptions would be available; such as the ones which permit the Catholic Church to deny females entry to the priesthood.
One of my biggest frustrations regarding this matter is that we, (Civil Partners that is), are often “invisible” when it comes to statistics.
When you last read an article or post about marriage or marriage statistics, do you recall seeing anything parallel relating to Civil Partnerships? I have seen little if any referencing to Civil Partnerships. We might be small in number; however, the numbers are not insignificant, as the embedded/linked ONS document in the original posting testifies.
If gay couples were allowed to marry, at least we would automatically form part of statistical marriage/divorce data, which is important because we do count! Right now, we’re peripheral in my opinion. To be fair, last years Census did deal quite thoroughly with Civil Partnership matters and options (e.g. there was a Civil Partnership forming and dissolution option as well as an option if your Civil Partner had died), which was refreshing, however, one would hope so given the nature of the survey and this was the first Census since the Act came in.
When I fill in official documents and forms for insurance purposes say, or a job application form, they usually ask if you’re “Married”, “Divorced”, “Co-habiting”, “Single” or “Widow(er)”. I answer married. This isn’t true or accurate, however married is the closest description given the available options.
I’m merely speculating, but I think gay marriage will be received differently by different members of the gay community. For those who have not legalised their relationship, they may want to marry and nothing else will do. However, what about those already in a Civil Partnership such as myself? Some may rush out and get married, but I think many wouldn’t feel the need.
I discussed this matter with my Civil Partner last night and we concluded that we wouldn’t marry if the law changed; we’re happy as we are and don’t feel that it would bring anything more to the relationship.
Nevertheless, we both conceded that the choice would have been nice back in 2006 when we “tied the knot” so to speak and also, it’d be good for other couples to have that choice in the future.
DT
ObiterJ on March 23, 2012 at 10:57 am
The government’ s consultation paper seems to be treading carefully in this area and does not propose requiring religious bodies to conduct same sex marriages. However, whether religious bodies would be held to unlawfully discriminate if they did not permit same-sex marriage has been raised. Given the latitude allowed to States by the E Conv on HR when it comes to matters such as marriage, I would think that there would not be discrimination but I may well be wrong and I would not claim any great knowledge of UK discrimination law.
My post on the consultation paper is at:
http://obiterj.blogspot.co.uk/2012/03/marriage-changing-scene.html#more
DT on March 23, 2012 at 3:17 pm
Good afternoon Obiter J
I believe that you are correct in that the government will not force religious bodies to conduct same-sex marriages. They have been very clear on this so far.
I couldn’t comment on the potential discrimination aspect, however, like I said in my comment (01.03.12), I suspect exemptions would always be available thus relieving any religious body from being forced to conduct a same-sex marriage ceremony.
Lynne Featherstone the equalities minister has a blog in which this matter is currently being mooted. Perhaps you could raise the potential discrimination aspect with her because it is an interesting and significant point?
The matter of same-sex marriage was raised and discussed very well on Question Time recently (08.03.12) and of course it continues to be covered by both the broad sheets and red-tops on an almost daily basis it seems!
Your post on the consultation paper is very interesting.
I believe that it’s not a matter of IF same-sex marriage comes in, but WHEN.
DT