Regarding Same-Sex Marriage – An Essay

The more observant of you will have noticed that at the Liberal Democrat Conference this weekend it was announced that the Government intends to move forward with its plans to permit same-sex couples to marry. A number of good articles on thesubject have ben written and initially I’d want to point you to two to see how the argument is being framed.

First there is Graeme Archer’s piece in the Telegraph. Graeme is a Conservative Party activist and in a Civil Partnership. I’ve known him online for a few years, and though we disagree on many things, not least this subject, he produces insightful and intelligent commentay which should be engaged with, not least because he won the Orwell Prize for blogging in 2011 (and has never been asked to give it back!)

When Keith and I were arranging our civil partnership, five of your Earth years ago, we spent a ludicrous amount of time wondering how to phrase the invitation on the cards. “Please come to our civil partnership” felt a bit clinical (was it likely we’d hold an uncivil one?), but we were acutely aware that the whole CP thing was new, and that many of our good friends were Christians, and we didn’t want to use any phrase that could be even mildly antagonistic, or political.

So we settled on the phrase “civil union”: please come to our civil union, we wrote, and to our ever-lasting joy, our friends did come, trudging through a wet March day in the City, to watch us sign the register in the Barbican’s indoor garden.

“Civil Union” was the wrong phrase to use though. About a week before the ceremony I was out on the lash with my lovely friends Carol and Andy, serious scientists both, and I told them about our problem with language, and how we didn’t want to offend, &c &c, until a visibly refreshed Carol interrupted me:

“For —-‘s sake Graeme. You’re getting married. Why don’t you just say so?”

One word, just one word, and it changes everything. Of course gay people should get married.

Forgive the solipsism of this post; there’s no other way I can think of in which to talk about this matter. I’m about the most robust gay man you could meet – arrogantly proud of my imperviousness to the words or thoughts of the world, when it comes to the central fact of my existence. I honestly don’t care what you think of my life; your favourite theory to pathologise my sexual identity leaves me untouched. I know what I feel for Keith, and he for me. Fact trumps theory. I love him.

Of course I gave a speech at the wedding. And of course I talked about aliens. But not aliens arriving on Earth, perhaps wondering about the fuss we’d invented to explain the differences between same-sex and heterosexual bonding.

I told my friends that I was the alien. I had wandered through life, looking at other people and knowing the things they took for granted were unavailable to me, and so I assumed that the fact of this barrier meant I was unalterably different in some important way. And then I met Keith, and the fact of our love revealed to me a surprising thing: it turns out I’m not an alien after all. I’m just a human being, just like all the others, able to publicly declare his joy at the greatest capability that humans possess, the thing that real aliens would notice about us, the thing that marks our species out as unique. I love, and I am loved.

Love and be loved. Marry the man or woman that you love, and give your life to them. Nothing else is of the slightest importance. Love’s young dream isn’t alien, in the words of the pop song. It’s the whole point of being human. I wish we talked about it a little more often.

I want to use Graeme’s piece to begin this essay because he makes two vital points in the debate. The first is simply this – same-sex relationships are, typically, based on entirely the same bonds of companionship and emotional / sexual connections that heterosexual relationships are. There is too much talk in some conservative circles about how gay men and women do not “love” properly. Assumptions are made that since homosexuality is a “developmental issue”, what is experienced and exhibited as “love” is simply a form of narcissus or catharsis to handle deeper emotional wounds. However, even if one does take a position that some forms of homosexuality are developmentally based, it is clear that out of an experience of deficiency in one emotional area, it is perfectly possible still to love healthily in another. I write that not to argue that all gay men and women are somehow emotionally inferior to “straights” – far from it. Rather I do so to point out that every single human being is flawed and imperfect in some way or form, affected and adapted from sinful experiences and encounters that shape our past and present selves. If, as some would argue, Graeme is incapable of “loving” correctly because of whatever wound in his past, by definition none of us are able to love perfectly.

But of course, this is not the position I hold. I genuinely believe that Graeme and his partner Keith, and other couples (be they gay, straight or in-between) love each other in very much identical ways that I love my wife. Couples up and down this country build dynamic bonds of companionship and mutual support, of affection that goes far beyond simply erotic attraction and instead is built on a much deeper longing simply to share life together, to be cared for and to care, to be loved and to love. Indeed, whilst sex is the physical expression of such a relationship (and more on that later), it is often not the root or basis of the union. Sex is not love and when one strips away sexual activity so many gay and straight relationships are the same. They are love for the other.

So this I believe is Graeme’s first point, that his love for Keith is the same entity of human-kinship that is shared by couples up and down the country and who make such kinship formalised in the presence of others, the wider society (in the form of the State and the witnesses) and sometimes also in front of God. All very well and good. However, Graeme’s piece then presents us with another consideration to take with us – that the kinship of the two united is the very essence of marriage. Read again what he writes.

Love and be loved. Marry the man or woman that you love, and give your life to them. Nothing else is of the slightest importance. Love’s young dream isn’t alien, in the words of the pop song. It’s the whole point of being human. I wish we talked about it a little more often.

Graeme’s article makes the argument that the union of two people who love each other is marriage. Though they could not call it such, their Civil Partnership was in his (and others’) perspective identical to when two people of the opposite sex make similar vows (but not identical, for Civil Partnership does not formally have them) and are “married” by a registrar or religious celebrant.  It is, in his argument, just the same.

And so to my second piece for your consideration. This time from another Conservative activist, Martin Sewell. Martin writes from a religious perspective which wants to ask a number of questions of the position of Graeme Archer and others.

It is worth reminding ourselves how the Civil Partnership Act was intended to be, and achieved, comprehensive equalisation. It contained 8 Parts, 264 Sections and no fewer than 30 Schedules. Those schedules addressed every reference to married persons in prior legislation and carefully amended each to ensure that it included Civil Partners. This was no slapdash, headline grabbing only, reform. When read alongside the Anti-Discriminatory and Equality legislation passed during the same era, it is impossible to disagree with the MP who referred to it during the Committee Stage as the “last piece in the equality jigsaw”.

So determined were the legislators to ensure a mirroring of marriage features, that it transposed the framework for both access and egress from divorce law to that Civil Partnership. Perhaps that care is best illustrated in the “cutting and pasting” of the prohibition of marriage within prohibited degrees of family. Given the genetic basis which underpins such a prohibition, it is arguably less valid where conception cannot be casual. It is thus interesting that Parliament still would not deviate from a determination to make the two jurisprudentially identical. Parliament also went to great pains to ensure that the mirroring was reflected in the Tax and Financial Codes.

At a late stage in the legislative process, Norman Tebbit sought to extend the ambit of the Act to apply it to others in a disadvantaged but non-sexual relationship of dependency. He proposed that it also apply to mothers cared for by spinster daughters, or siblings. This superficially attractive use of the legislative framework to “kill two birds with one stone” was was roundly rejected. The Act was intended to be, and did, stand as the comprehensive settlement. Its passage was to be the cathartic triumph of equalisation, the righting of historic wrong. Nothing was to rain on this gay parade – and we all cheered – well, most of us.

When you appreciate how comprehensive the Parliamentary care for gay equality was, it places into context the remarks of Peter Tatchell’s legal guide in this campaign as quoted in the Telegraph. Professor Robert Wintemute described the Civil Partnership Act as “discriminatory and obnoxious”. He likens the present position to Apartheid South Africa or 1940’s Alabama, where black people could not use the same drinking fountains or beaches. This is not only a risible comparison, a disgraceful and distorted argument given the above, but an insult to those who faced real discrimination.

You might wonder, given this history, why the P.M. might want to align himself with such campaigners. There is no substance in the complaints of the malcontents. They are rebels without a substantive cause,  save that of confronting the traditional on every conceivable occasion. Meanwhile there are many amongst the ranks of the Civilly Partnered who are content with the settlement and they are supported by those who love and respect them for who they are, rather than insisting upon a meaningless assertion of identicality.

Martin’s case is this; Civil Partnerships provide same-sex couples with everything marriage provides other-sex couples with, bar the actual name “marriage”. This equality under the law is recognised all the way up to the European Courts, both in a positive fashion (Civil Partners cannot be discriminated against apropos married couples – eg the Cornwall B&B case earlier this year) and also in a negative manner (the ruling of the European Court of Human Rights that an Austrian gay couple were not being discriminated against by being refused the right to marry since the option open to them, Civil Union, provided every single benefit that mariage did).

No, for Sewell the obvious fact for all to see is that marriage and civil partnership in English and Welsh law are to all intents and purposes identical, save for the sexes that can enter into them. The Civil Partnership legislation was comprehensive and ensured that no loop-holes were left in pension rights or other situations of financial and legal equality. There is, for Sewell, no need to have same-sex marriage because to all intents and purposes it already exists. And indeed, this is the point made in the highlighted quote above from Graeme Archer, that his civil partnership to Keith was identical to the union of any two “straight” people who mary. Identical.

Or is it?

Marriage, Coitus and Procreation

A paper was published in the Harvard Journal of Law and Public Policy last autumn which made a very strong case for the biological component and consequence of coitus (i.e. penetrative sex) being an integral part of the definition of “marriage”.

Consider two competing views:

Conjugal View: Marriage is the union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the behavioral part of the process of reproduction, thus uniting them as a reproductive unit. Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it.

Revisionist View: Marriage is the union of two people (whether of the same sex or of opposite sexes) who commit to romantically loving and caring for each other and to sharing the burdens and benefits of domestic life. It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear.

…

Marriage is distinguished from every other form of friendship inasmuch as it is comprehensive. It involves a sharing of lives and resources, and a union of minds and wills—hence, among other things, the requirement of consent for forming a marriage. But on the conjugal view, it also includes organic bodily union. This is because the body is a real part of the person, not just his costume, vehicle, or property. Human beings are not properly understood as nonbodily persons—minds, ghosts, consciousnesses—that inhabit and use nonpersonal bodies. After all, if someone ruins your car, he vandalizes your property, but if he amputates your leg, he injures you. Because the body is an inherent part of the human person, there is a difference in kind between vandalism and violation; between destruction of property and mutilation of bodies. Likewise, because our bodies are truly aspects of us as persons, any union of two people that did not involve organic bodily union would not be comprehensive—it would leave out an important part of each person’s being. Because persons are body‐mind composites, a bodily union extends the relationship of two friends along an entirely new dimension of their being as persons. If two people want to unite in the comprehensive way proper to marriage, they must (among other things) unite organically—that is, in the bodily dimension of their being.

…

By extension, bodily union involves mutual coordination toward a bodily good—which is realized only through coitus. And this union occurs even when conception, the bodily good toward which sexual intercourse as a biological function is oriented, does not occur. In other words, organic bodily unity is achieved when a man and woman coordinate to perform an act of the kind that causes conception. This act is traditionally called the act of generation or the generative act; if (and only if) it is a free and loving expression of the spouses’ permanent and exclusive commitment, then it is also a marital act.
Because interpersonal unions are valuable in themselves, and not merely as means to other ends, a husband and wife’s loving bodily union in coitus and the special kind of relationship to which it is integral are valuable whether or not conception results and even when conception is not sought. But two men or two women cannot achieve organic bodily union since there is no bodily good or function toward which their bodies can coordinate, reproduction being the only candidate. This is a clear sense in which their union cannot be marital, if marital means comprehensive and comprehensive means, among other things, bodily.

…

Because bodies are integral parts of the personal reality of human beings, only coitus can truly unite persons organically and, thus, maritally. Hence, although the state can grant members of any household certain legal incidents, and should not prevent any from making certain private legal arrangements, it cannot give same‐sex unions what is truly distinctive of marriage—i.e., it cannot make them actually comprehensive, oriented by nature to children, or bound by the moral norms specific to marriage. At most the state can call such unions marital, but this would not— because, in moral truth, it cannot—make them so; and it would, to society’s detriment, obscure people’s understanding about what truly marital unions do involve. In this sense, it is not the state that keeps marriage from certain people, but their circumstances that unfortunately keep certain people from marriage (or at least make marrying much harder). This is so, not only for those with exclusively homosexual attractions, but also for people who cannot marry because of, for example, prior and pressing family obligations incompatible with marriage’s comprehensiveness and orientation to children, inability to find a mate, or any other cause.

Those who face such difficulties should in no way be marginalized or otherwise mistreated, and they deserve our support in the face of what are often considerable burdens. But none of this establishes the first mistaken assumption, that fulfillment is impossible without regular outlets for sexual release—an idea that devalues many people’s way of life. What we wish for people unable to marry because of a lack of any attraction to a member of the opposite sex is the same as what we wish for people who can not marry for any other reason: rich and fulfilling lives. In the splendor of human variety, these can take infinitely many forms. In any of them, energy that would otherwise go into marriage is channeled toward ennobling endeavors: deeper devotion to family or nation, service, adventure, art, or a thousand other things.

But most relevantly, this energy could be harnessed for deep friendship. Belief in the second hidden assumption, that meaningful intimacy is not possible without sex, may impoverish the friendships in which single people could find fulfillment— by making emotional, psychological, and dispositional intimacy seem inappropriate in nonsexual friendships. We must not conflate depth of friendship with the presence of sex. Doing so may stymie the connection between friends who feel that they must distance themselves from the possibility or appearance of a sexual relationship where none is wanted. By encouraging the myth that there can be no intimacy without romance, we deny people the wonder of knowing another as what Aristotle so aptly called a second self.

The third assumption is baffling (but not rare) to find in this context. Even granting the second point, legal recognition has nothing to do with whether homosexual acts should be banned or whether anyone should be prevented from living with anyone else. This debate is not about anyone’s private behavior. Instead, public recognition of certain relationships and the social effects of such recognition are at stake. Some have described the push for gay marriage as an effort to legalize or even to decriminalize such unions. But you can only decriminalize or legalize what has been banned, and these unions are not banned. (By contrast, bigamy really is banned; it is a crime.) Rather, same‐sex unions are simply not recognized as marriages or granted the benefits that we predicate on marriage. Indeed, recognizing same‐sex unions would limit freedom in an important sense: it would require everyone else to treat such unions as if they were marriages, which citizens and private institutions are free to do or not under traditional marriage laws. The fourth assumption draws an arbitrary distinction between homosexual and other sexual desires that do not call for the state’s specific attention and sanction. It often leads people to suppose that traditional morality unfairly singles out people who experience same‐sex attractions. Far from it. In everyone, traditional morality sees foremost a person of dignity whose welfare makes demands on every other being that can hear and answer them. In everyone, it sees some desires that cannot be integrated with the comprehensive union of marriage. In everyone, it sees the radical freedom to make choices that transcend those inclinations, heredity, and hormones; enabling men and women to become authors of their own character.

Now this is an argument that immediately raises questions and complaints. The most obvious concern raised is that the argument laid out by Girgis, George and Anderson in this paper seems to elevate sex and child-bearing to an artificial state of necessity for marriage to be valid. If procreation is a good of marriage, what about those marriages where procreation cannot occur? It is important to answer this by clarifying what Girgis et al are and are not saying. What they are not arguing is that marriage must include procreation, or at least the physical act of coitus which leads to procreation. Rather, marriage is a union of two people who, were they able to would choose to perform the act of coitus that led to procreation. This means that the example of an elderly couple who cannot perform coitus, or a couple where one or both are disabled and the same applies are still validly married if, were they able to, they would perform coitus.

The second thing to note about what Girgis et al are arguing is not that the coitus itself is the act that defines marriage, rather it is the thing that points towards the good of marriage (procreation) that society agrees is one of the functions of marriage. It does not require every single marriage to result in procreation for marriage itself to be an institution designed in part to provide for procreation within the most stable and nurturing environment possible for the offspring. For example, you do not need to catch a fish everytime you cast a rod for everytime you cast a rod to be understood as you angling. You do not need to win the match to have played successfully a game of tennis. For a marriage to be a valid marriage, the couple would have to want to perform coitus if they were able to. They do not necessarily have to procreate, but it is the willing performance of coitus that points towards procreation.

The argument of Girgis et al is that this has been the common understanding of marriage for generations. It is not a modern innovative interpretation of marriage to defend it from widening to include two people of the same sex, it is established in practice and law across Western Europe. For example, in England and Wales the law around registering child birth permits the married father of a child to register the birth but not an unmarried father. In doing so the birth registration law recognises that marriage has within it the good of procreation in a way that a non-married relationship does not.

Or take another example, and here we raise another issue for amending the marriage law in England and Wales. The Book of Common Prayer includes in its introduction to the marriage service the following statements.

[These are] the causes for which Matrimony was ordained.
First, It was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord, and to the praise of his holy Name.

Further on, the BCP marriage service prays the following prayer.

O Merciful Lord, and heavenly Father, by whose gracious gift mankind is increased: We beseech thee, assist with thy blessing these two persons, that they may both be fruitful in procreation of children, and also live together so long in godly love and honesty, that they may see their children Christianly and virtuously brought up, to thy praise and honour; through Jesus Christ our Lord. Amen.

The fact that procreation by coitus is considered a natural and expected aspect of marriage in the Book of Common Prayer is important since it demonstrates that this understanding of one of the goods of marriage is present in all aspects of the Marriage law in England and Wales. The law recognises both “Marriage according to Rites of the Church of England” and “Marriage under Superintendent Registrar’s Certificate”. It would be wrong however to see this as a strict separation between “religious marriage” and “civil marriage”. In the eyes of the law there is no distinction in the rights and obligations of marriage (and the goods thereof) whether the marriage is conducted according to the Rites of the Church of England or under a Superintendent Registrar’s Certificate. They are one and the same, simply conducted in different places. Yes, a Church of England priest has the right not to marry certain people (divorcees, those not meeting residential, familial residential or attendance criteria), but it is not the right to refuse “religious marriage”, rather the right to allow a marriage to be registered within a Church of England church.

How to Proceed

Where are we going with this? Well the understanding that marriage is not simply about the two people who marry, but also about their offspring, means that when Graeme makes his point that his and Keith’s kinship is identical to a heterosexual marriage, in some senses he is correct when he is describing the emotional, spiritual and sexual union of the two. However, he is incorrect when we come to see that marriage as it is currently constituted includes within it an implicit and explicit understanding that coitus will be involved as a sign of procreation. Two men, or two women for that matter, cannot perform coitus, even if they can perform sex. Given that they cannot perform coitus they cannot be “married” in the fullest sense that the current understanding of marriage as framed in English Law understands marriage to be (specifically including the reference to coitus and procreation). Remember, the Marriage Act does not distinguish between a “religious” and a “secular” marriage, rather it distinguishes between places that a marriage can be registered (and the context of that registration). The fact that a couple who marry in a registry office do NOT have a theological introduction referring to coitus read out or prayers said over them for the success of coitus and procreation does not mean that the Law does not recognise that coitus and procreation are integral parts of marriage. The Book of Common Prayer is still one of the authorised form of solemnizing marriages and it makes explicit references to coitus and procreation.

None of this is to say that in a same-sex union the relationship between the two spouses is in any way inferior to the relationship between two spouses in an other-sex union. The Civil Partnership legislation is framed in such a way as to lift from the marriage service in a registry office the rights and obligations of a married couple. The law already assumes (apart from the thorny question of how a Civil Partnership is “consummated”) that the inter-personal aspects of the two people being married or being civil partnered are identical. The one thing that is lacking though from a Civil Partnership that is present in marriage is the third party involved, namely the subsequence children of the coital union. This leads us to see marriage as not “better” than Civil Partnership but rather “different”, not in the inter-personal aspects but in the extra-personal aspects.

How then should the State proceed if it wishes to introduce same-sex marriage? It is not simply a case of a quick re-write of the law to amalgamate Civil Partnerships and marriage into one legal entity. There are greater problems that must be addressed.

To begin with, there would need to be a revision of the understanding of the place of coitus and procreation within marriage. It is all very well for revisionists to argue that marriage is not about or should not be about coitus and procreation, but the simple fact of the matter is that at the moment that understanding is implicit in English law, both within aspects of the Marriage Act itself and its references to Church of England liturgy and in other legislation (for example the understanding that coitus and procreation within marriage has a privileged position with the birth registration legislation). In order to change this either the law needs to change to understand that coitus and procreation are optional parts of marriage (so not necessary as a good of marriage) or it needs to excise any reference to it at all. The first option is tricky as it leads to a situation where two forms of marriage would exist – marriage that recognises coitus and procreation as a good and marriage that does not. On what basis should such a distinction be made? How would such a distinction affect other aspects of law such as the privilege of a married father to register the birth of his child? Would the distinction be made on the basis of the homosex or heterosex of the spouses involved in a marriage (which would lead to an understanding of different forms of marriage based on professed sexual identity which hardly seems to fit the aim of equality that is sought be introducing same-sex marriage) or could it be chosen at will by the spouses involved? Could such a decision ever be enforced in practice?

The second option (to excise all reference to coitus and procreation) would be even more tricky. At present, the two authorised forms of liturgy in the Church of England for marriage (BCP and Common Worship) both make explicit references to coitus and procreation. Such references would need to be removed in order to remove from marriage in general the understanding that coitus and procreation were an aspect of it. Without making too much of a song and dance about it, this is unlikely to happen. Without it though the State would continue to recognise the importance of coitus and procreation as a defining aspect of marriage (as explicitly specified in the introduction to both the BCP and the Common Worship marriage service).

This leads us though to a further and much more serious complication for the advocates of same-sex marriage, namely that the Church of England services referenced above not only make explicit mention of the good of coitus and procreation in their content but also declare without any ambiguity that marriage is the union of a man and a woman and cannot be the union of two people of the same sex. As long as the Marriage Act recognises Church of England marriages it could never declare that marriage could be solemnised between two people of the same-sex without producing a complete contradiction in its wording. As we noted above, English law does not recognise the distinction between “religious” marriage and “secular” marriage, rather it simply distinguishes between the places where marriage can be registered and the differing forms of words (forms of words that are themselves authoritative in defining the nature of all marriage under English law) that are used around the registration.

The solution to this of course is to repeal the right of Church of England churches to solemnise marriages, but that would be such a monumental decision that it would have to be accompanied by complete disestablishment. Your author does not see this as a likely option, so as long as there is a legal right to be married in a Church of England church it would be virtually impossible to widen the definition of marriage under English Law to include same-sex couples. It is a virtually insurmountable obstacle to the revisionist cause.

Summary

It strikes me that the current distinction between Civil Partnerships and Marriage is a useful one, for it recognises that there is an extra-personal aspect to the union of two people of the opposite sex (enacted in coitus and procreation) that cannot ever be realised by a union of two people of the same-sex. Civil Partnership provides for the two spouses all the inter-personal rights and benefits of marriage, but does not confuse them with the extra-personal aspects of marriage that currently exist as a consequence of the sexual reality of the spouses entering into marriage. An attempt to extend marriage to cover those of the same-sex would require not just a reassessment of those current  extra-personal aspects of marriage but also would necessitate either a complete revision of the liturgy of the Church of England or the removal altogether of the right of the Church of England to conduct marriages in England.