Questions for the Same-Sex Marriage Debate
It strikes me that a number of questions need to be engaged with by those who advocate changing the definition of marriage in this country, so I want to start a list of issues that should be addressed. Feel free to add other suggestions below, but given the way we try to do things here, can we have sensible suggestions please?
Here goes.
We should stop talking about “gay marriage” or “same-sex marriage”. If all that is being proposed is this then we could simply rename Civil Partnerships as “Gay Marriage” and let “(traditional) marriage” carry on alongside it. What is actually being proposed is not “gay marriage” per se, but rather a redefinition of marriage to become “gender-neutral marriage”. The debate should be rephrased in these terms to accurately reflect what is being proposed. Let’s use this term here as GNM (gender-neutral marriage).- Under GNM what is the definition of consummation? It either needs to be defined in a manner that works for all three combinations of spouses (male-male, female-female and male-female) since if we define it in three separate ways we no longer have a gender-neutral institution. Can this redefinition be done?
- If this redefinition of consummation can’t be done, we need to remove references to consummation in legislation such as the Matrimonial Causes Act 1973. We will also need to go back through all the case law around consummation and change it to bring it in line with a Marriage Act that has no place for consummation. Has this work been done by the GNM advocates?
- If consummation is removed from the understanding of marriage in English Law, how will GNM be any different from how Civil Partnerships are now?
- If consummation is removed from the understanding of marriage in English Law, then the legislation around marriage will no longer have any references to sex (in a similar manner to the current Civil Partnership legislation). If this is so then have we addressed all the out-workings of this? For example, will there need to be legislative changes around the registering of child births (where currently only a biological father who is married to the mother can register the birth of his child on his own behalf). What about all the case law around sex in marriage? Can GNM advocates successfully show that they have addressed how this will be impacted?
- Although churches will (for the moment) be exempted from registering GNM of people of the same sex, what about other events run by the church? For example, will a “Marriage Enhancement Course” run by a church be allowed to exclude same-sex couples who have a GNM? What are the exact limits of religious exclusion (churches, para-church organisations, religious charities) and can these exclusions be explicitly defined in legislation rather than left to case law?
- What is the exact relationship between the Church of England marriage liturgy and the Marriage Act 1949 (as it will be amended) and how does this affect GNM? Specifically, will it be legal for the solemnization of marriage that occurs within a Church of England church to use language in the service that specifically rejects the notion of GNM?
That’s a few for now. Any more anybody?
Gender neutral marriage is the basic idea behind gay marriage. But it’s a bit clumsy to say it that way. Straights – whether they are for or against it – are the ones who say gay marriage. Gay people usually say just say marriage.
Who really cares about consummation? Would you object to the marriage of two elderly people on the grounds that they were unlikely to consummate the marriage? If two men cannot technically consummate a marriage, can they still have a wedding?
The CoE will have to lie back and think of England. They have no chance of keeping the equalities act at bay in the long run.
The issue is that the law as it stands currently considers consummation quite important even if the majority of the people don’t. Bit like speed limits really.
The “marriage of two elderly people” thing is a bit old hat and Girgis et al deal with it clearly here -Â https://www.peter-ould.net/2011/02/19/what-is-marriage/
Don’t popular debates shape the law? I’m 100% sure Cameron is a supporter of gay marriage because a few of his close friends are gay and they constantly remind him,Â
in nice middle class settings, of how unfair the law is. Dead in the water conversations about consummation won’t stop this kind of dinner party insurgency.
Can gay couples still have a wedding – and leave the consummation bit for the lawyers to fight over?
I don’t disagree that most people today don’t care about consummation. But the point is this – the concept does occur in law, it is significant for a number of issues and while most people might want to get rid of it (and having GNM will probably do exactly that), before we do so we need to be sure what all the implications will be.
‘Don’t popular debates shape the law? I’m 100% sure Cameron is a supporter of gay marriage because a few of his close friends are gay and they constantly remind him, in nice middle class settings, of how unfair the law is’.
Good points, Joe. Certainly popular debates are part of what shapes the law, although I would argue that the social contract between governing and governed is an even deeper force. I think that you’re also right that Cameron is clearly a social liberal and no doubt conversations with friends have had an impact.
But I think something more is going on here. Cameron is the ‘Son of Blair’ par excellence, the politician that is supposed to have a sure political touch for what the public want and will accept. He has already put significant political capital into his strong personal support for gay marriage, and we’ve barely got started on the real fight over the issue. Three points spring to mind:
1. From the high priority that they have attached to it, the Cameroon modernisers clearly feel that gay marriage is their ‘Clause 4’ moment. This is the point at which they demonstrate that the Tory party is all modern and touchy-feely and has ceased to be the ‘nasty party’. All the sounds coming out from key Cameron allies indicate that this is how it is seen – see Francis Maude’s intervention this week.
2. But this is not a government with a Blair uber majority 2001-05 during economic good times, where any measure personally supported by the PM can easily be pushed through. This is a very finely poised Coalition government with an economy that is likely to get even worse before it gets better. The Tories are partly going all socially liberal as a bridge to their LibDem allies to balance the Coalition’s very harsh public expenditure cuts. The LibDems are naturally a left-of-centre party and I think that the most likely issues to fracture the Coalition are deep differences over how to deal with the economic crisis.
3. So in many ways Cameron is picking the wrong issue at the wrong time. In this way he is being amazingly un-Blairite who, with the serious exception of Iraq, always knew when to bring the right issues before Parliament in terms of public opinion.
I genuinely believe that, outside metropolitan dinner tables and the religious, gay marriage is not an issue which to anyone gives much time. It certainly is not registered publically as a deep injustice of outrageous proportions at a time when thousands are losing their jobs. To date, this lack of public concern has benefited the pro-gay marriage lobby – the issue has so far been presented as a simple normalisation to provide ‘fairness’ to all people who love each other. It was clearly hoped that it could be slipped through more or less on the nod with nice vibes all round and feel-good gains for the Coalition.
But there are two effective strategies against which that are beginning to surface:
1. Strong emphasis is beginning to be put on the deep changes to marriage that are proposed. Gender neutral marriage breaks the link between marriage and families and marriage and natural birth. I think that people do have a ‘natural justice’ belief that any two consenting adults who love each other should be free to do so – and quite right too. People are however naturally protective towards children and families and are very wary about intefering with natural birth through surrogacy.
2. Why are the Tories investing so much time in the minor issue of gay marriage during a time of economic crisis? Economic conditions are going to get significantly more difficult this year and the effect of public expenditure cuts is starting to bite. The Coalition government’s economic policies are going to be shown to be deeply wrong-headed. As a result, political tensions and differences within the Coalition will only grow. Certainly the LibDems won’t be pressing the Tories to back down on gay marriage, but they’ll certainly be pressing them on lots of other issues. Politicians are not above using political tensions for their own advantage. I can see the space for a very effective campaign saying that the government has the wrong priorities.
As the Chinese proverb says: ‘May you live in interesting times’.
And even if you think it’s not important, you then have to answer points 3, 4 and 5 above!
Comments on each point, following your numbering:
1. I don’t see the problem with the usual terminology, as the proposal is indeed to allow, for the first time, marriage between people of the same sex. But “gender-neutral marriage” is no worse, and is an accurate description of the consequence of the proposal at hand.
2. I was a bit surprised at this paragraph until I read the next one, as I wasn’t aware that consummation had any significance in law. However, I now see that it does in English law. (In Scotland, where I live, a marriage is voidable on the grounds of impotence, but not of non-consummation). Assuming Parliament wants this to remain the case, I don’t see the problem here, as I think we all know what sexual intercourse means in the context of same-sex couples.
3. The easiest solution is to make consummation irrelevant altogether. It strikes me as a bit old fashioned anyway, and we in Scotland do fine without it. If the Marriage Act 1949 is to be amended, this would seem a good opportunity to delete the consummation provisions. Any complications in this regard arising from case law would then simply fall away.
4. Firstly, the name. This is symbolic, but symbolism matters to people. Many homosexuals want access to the time-honoured institution, not just the legal rights attaching to it. Secondly, we wouldn’t have to humiliate married transsexuals by forcing them to divorce and remarry again. Thirdly (although this is nothing to do with consummation), you can’t have Civil Partnerships in church, even if the church wants to do them.
5. This is a much better question, but I don’t think the solution is that difficult. In the case of two men married to each other, one may be the biological father, but he is not married to the mother, so the position is no different from that of an unmarried man who fathers a child. In the case of two women married to each other, the non-mother is married to the mother, but is not a biological parent and so has no rights in relation to the child – the position is no different from that of a man whose wife has a child by another man. In both cases, if the goal is to give parental rights and responsibilities to both parties of the marriage, adoption will be needed, which is exactly what we have done for years in relation to straight couples who could not conceive. I don’t see that the law needs to be changed at all.
6. This one is far more interesting. Any legislation is likely to say “No church has to perform a same-sex marriage”, but will it permit discriminatory treatment of same-sex couples who are already married? The Equality Act 2010 contains a large number of complex exceptions for religious bodies from the usual anti-discrimination provisions – would this already fall under one of those? Of all seven questions, I think this is the only one that needs to be debated in Parliament.
7. Probably none. If the Church of England is going to choose not to perform same-sex marriages, and can legally do so, why would it have to amend its liturgy? If it chooses to perform them, obviously there will be minor consequential changes, but I think it’ll be fairly obvious what these will be. Is the problem to do with how the liturgy of an established church can legally be changed? There must be some way, whether by Act of Parliament, Order-in-Council, or decision of General Synod; so whatever it is, do that, and the problem is solved.
 “I think we all know what sexual intercourse means in the context of same-sex couples.”
But that’s not the question; the question is what “consummation” is. In heterosexual intercourse, there are many things you may do, and then there is a specific act labelled “consummation”. One can perhaps imagine parallels for male gay couples, but I’m afraid you will need to be more specific about how you define “consummation” (as opposed to sexual intercourse) for female gay couples before you can wave the problem away.
As Peter points out, making consummation irrelevant has a number of repercussions in law. As I understand the argument, it would make all marriages into civil partnerships. If that is so, is it not reasonable for heterosexuals to object to the significant changes to _their_ marriages and how they are constituted and legally dealt with that this change would bring?
“If consummation is removed from the understanding of marriage in English Law, then the legislation around marriage will no longer have any references to sex (in a similar manner to the current Civil Partnership legislation).”
Same-sex couples CANNOT “consummate marriage” as a simple biological fact.
Men may perform anal penetration on each other. That isn’t “consummation”.
I don’t know how lesbians “consummate” – with a dildo, maybe?
The short and simple answer is to extend the right of Civil Partnerships to heterosexual couples, as in New Zealand.
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“Same-sex couples CANNOT “consummate marriage” as a simple biological fact.Â
Men may perform anal penetration on each other. That isn’t “consummation”.
I don’t know how lesbians “consummate” – with a dildo, maybe?”
This is the kind of mean-spirited statement that ends up with Christians being dismissed as ‘haters’. If you asked the man in the street to define ‘consummate’ he would probably say something like “have sex with someone”. The popular definition of the word has moved on and pointing to the ‘archaic’ dictionary definition doesn’t help you win the debate. Sprinkle a few Christian words into the mix as well and you WILL be dismissed as a cold-hearted Calvinist.
(BTW, I’m not in favour of gay marriage)
I agree completely – about to blog on another example of this “arguing the wrong thing” issue.
That’s all very well for straight couples who want to enter civil partnerships, but it doesn’t do much for gay couples who want to get married, which is the topic of discussion.
I like your formulation of ‘gender neutral marriage’, Peter, and I think that it’s a good term to start using. As I pointed out in my post on the marriage laws in South Africa a couple of weeks ago we have three types of legally registered partnerships:
1. Gender neutral marriage or civil unions.
2. Gendered marriage.
3. Customary law polygamous marriage.
A right mess it is too, as acknowledged by people on both sides of the debate!
Once marriage ceases to be gendered we break the strong link between marriage and families and marriage and our gendered existence. Marriage becomes justified based upon the love between people. As we’re also seeing on the ‘incest’ thread, access to marriage is then limited only by the types of love that society deems to be acceptable.
I think that problems of this kind arise from trying to
express homosexuality in heterosexual terms. We can’t do it successfully, and I
can’t see any reason why we should want to. I know that some gay activists
sneer at the concept of “equal but differentâ€, but I consider that a very
mistaken attitude: it seems to imply that your right to equality depends on not
being different from the majority, which I would certainly repudiate. The fact
remains that a gay relationship is different from a straight one, and vice
versa, so to try to manufacture exact correspondences between the one and the
other that don’t really exist is, in my opinion, a rather silly and pointless
exercise. It’s for that reason that I think that the idea of gay marriage is
best abandoned. Of course, people may still refer to a civil partnership as a marriage
in common parlance; you can’t prevent that.
In the book “Words fail me” written in 1980 by Times journalist Philip Howard, there is a chapter devoted to the lack of an English word to describe “a person of the opposite sex sharing living quarters” the acronym POOSSLQ, used by the US Census Bureau, not being widely adopted! How language has changed in only 40 years.
The issue seems to me to be mainly one of language and if we consider the number of possible relationships it is clear that to use one word to describe them all leads to a significant loss of clarity. A relationship can be informal, recognised by a civil registrar or religious, it can be between a male and female, 2 males or 2 females, it can be for the purpose of having children or not, it can involve a sexual element or not. That leads to 36 possible relationships. The issue here is which of these 36 should be called “Marriage” which are a “partnership” or some other term. To call them all a “Marriage” will probably lead to the invention of another term to describe the traditional arrangement. This will lead to all sorts of unnecessary legal problems if, what was then called a marriage is now called something else.
A friend pointed out to me that the U.S. States that have legalised GNM will surely have surmounted this hurdle of redefining consummation won’t they? Or is it a peculiarly English problem?Â
It varies from commonwealth to commonwealth. Some may simply have ignored the problem, hoping it would just go away…
Perhaps someone can help by explaining just what significance consummation has in English law and, more importantly, whether a court is now likely to take much notice of it given that marriage has changed significantly over the centuries from a man virtually owning his wife as he would own any other property to the present rather more equitable arrangements. As Echobeats says, Scottish law gets on very well without it and perhaps it is time that English law followed suit whatever the outcome of the present issue.
Peter, the consummation question only becomes relevant if it can be used to declare a marriage void. While gay people may not be able to consummate a marriage, an inability to do so does not bar people from getting married. Chronic impotency can be used to prove an inability to consummate a marriage in the US, but people can still get married despite their impotent status if they don’t actually apply for their marriage to be declared as void on those grounds. Likewise, in Australia, a marriage where a partner fails to declare their pre-existing ‘venereal disease’ can be declared void- however, plenty of people get married in Australia despite having gonorrhea or genital herpes, and don’t have a desire to exercise their right to have their marriage declared void…
I think you misunderstand the issue.
Jack and Brad get married. A month later Brad says he wants the marriage made void. Jack disagrees. Brad goes to a judge and says that the marriage was never consummated. Jack says it was. Brad says it wasn’t – he never inserted his erect penis into Jack’s vagina.
Solve the problem – who is correct?