At the time of writing, a determination in the case of Ferguson & Others v United Kingdom (App. No. 8254/11) in the European Court of Human Rights (ECtHR) is awaited. The claim is the joint action of four heterosexual couples who wished to enter into a civil partnership and four same sex couples who wished to enter into marriage.
The issue to be determined is whether the introduction of two separate systems (ie, civil marriage and civil partnership) constitutes discrimination contrary to art 14 (in conjunction with arts 8 and 12), or amounts to a violation of the art 12 right to marry and the art 8 right to private and family life. It was submitted that by
“segregating couples according to their sexual orientations” into separate but substantively similar institutions, the UK is using the law to stigmatise: “to mark same sex couples as inferior, and different sex couples as superior”. We respectfully agree. (Ferguson and Others v UK, application available online:
Twelve countries including Spain, Mexico, Argentina and some states of the US have introduced same sex marriage. A further 28 countries have introduced same sex unions. On 9 May 2012, President Obama announced his support for same sex marriage, a significant constitutional and political move for the US. Never before has such a leading political figure made such a clear statement in support of equality for same sex couples. It is now time for the UK to play catch up.
Civil partnership v civil marriage: so close yet so far
There are similarities between civil partnership and civil marriage, although they are separate entities created by different legislation. The rights and responsibilities each confers are similar. There are, however, some minor differences. Civil partnerships can only be dissolved on the grounds of unreasonable behaviour and currently there is a prohibition on the use of religious language during a civil partnership, although conversely, some religious words may be used in a civil marriage ceremony.
The fundamental difference between civil partnership and civil marriage is the name. Many same sex couples would have preferred to have entered into a civil marriage at the time civil partnerships were introduced, given that the latter are viewed as the poor relation to marriage. Saying “I am civil partnered” invokes the cumbersome label attached to a minority group. To say “I am married” however, is to use the language of equality and dignity. We do not suggest that the word marriage should provide a veil behind which same sex couples should hide, rather we contend that any distinction between same sex and opposite sex couples should be removed.
The case for reform
The government’s proposals are an important move towards equal status for same sex couples and are very much welcomed. Key to the principle of equality, in our view, is the freedom to exercise the same choices as might be available to any other individual. The proposals reflect this in that they provide same sex couples with the choice to enter into a legally binding commitment with one another by way of marriage. Contrary to the perceptions of certain sectors of the apparently learned legal community, the commitment made by same sex partners to one another is no less genuine, enduring, secure or monogamous than that made by opposite sex partners.
Similarly, same sex couples are not rendered any less fit by reason of their sexuality to raise children whether they choose to be civil partnered, married or indeed remain cohabiting.
We provide some food for thought by raising two questions: (i) do the government’s proposals go far enough for same sex couples?; and (ii) do the proposals create a new area of contention for opposite sex couples?
While same sex civil marriage provides parity among individuals who wish to enter a civil marriage, there remains a significant deficit. Same sex couples are unable to have a religious marriage even if a religious establishment permits it. Unfortunately, this issue is not on the government’s agenda. In what appears to be a compromise, the government proposes to permit same sex civil partnerships on religious premises if the religious organisation agrees. This scheme was introduced in December 2011, although it should be noted that the registration itself must remain secular.
Under the proposals, couples in a civil partnership will be given a choice to convert their partnership into a marriage. The benefit of this proposal is that those couples who wish their partnership to be reflected through the institution of marriage may do so, while leaving it open to those who do not, to retain their existing arrangement.
Opposite sex couples will not be able to enter into a civil partnership nor will they be able to convert their marriage into a civil partnership. We consider that there is a compelling case for both to be available to such couples. After all, not everyone is married to the idea of marriage. Of course for some, marriage may be seen as the “gold standard” and proponents of this argument may even be persuaded to the view that one system of marriage should be available for all couples, whether heterosexual or homosexual. Our preference however is for all couples to have the choice to enter into a civil partnership or a marriage, whether religious or otherwise. Legislation whether now or in the future could go further to allow religious organisations such as Quakers, Methodists and liberal Jews to marry same sex couples if they wish to do so.
Practical effect of the government’s proposals
The proposals mean that marriage and divorce laws would apply equally to same sex couples. Case law would need to develop concepts of same sex consummation and adultery. We hope with a little education and perhaps imagination this should not prove too arduous. The significant change would be definition of the word marriage, making it gender neutral. Anecdotally, many same sex couples and their friends refer to their partners as their “wife” or “husband” because they view the commitment they have made to each other as equal to that of opposite sex married couples. The argument that marriage is a religious or historical institution only between men and women is not reflective of today’s modern society. Far from diminishing the institution of marriage, the government reforms will improve and enrich the concept and may even improve the government’s statistics on the number of people entering it. We are confident that the broad-minded among us will consider same sex civil marriage as a positive step towards harmonisation of laws applicable to all couples.
The government’s proposals are a significant step towards achieving equality between same sex and opposite sex couples. However, they fall short of complete parity. One step towards parity would be simultaneously to introduce civil partnerships for opposite sex couples. To achieve full equality, religious marriages for same sex couples would need to be tackled. The authors do not contend that achieving this is an easy task, given the position adopted by the Church of England and other faith groups.
Each step in reducing public discrimination against same sex couples has been achieved against the fears that society would be harmed by such licence. Even today, some suggest that to redefine marriage is to encourage a move towards polygamy or worse. The reduction in the age of consent has not corrupted society; the lifting of the ban on gay soldiers has not corrupted or weakened the military; the introduction of civil partnerships has not undermined heterosexual relationships. Marriage equality does not lead to polygamy.
The government plans to give the proposed reforms its full support with a view to producing draft legislation by 2013/14. We hope therefore to celebrate the first same sex civil marriages by 2015. If this is achieved, the government will have remedied one of the mischiefs created by the introduction of civil partnerships; the name.
Hassan Khan, 4 Paper Buildings and Claire Fox, Renaissance Chambers, co-chairs of the Bar Lesbian and Gay Group.
Same sex marriage? Hang on a moment...
Paul Marshall considers the argument for change may be overstated and premature
A cynic might think that the proposed introduction into its legislative programme of same sex marriage is informed by government recognition of its impotence in other spheres; a failure to secure such strategic foreign policy objectives as might be identified and paralysis under economic permafrost. Commonly not much may be done, not even roads be prevented from being dug up. Better, not only is this something government can do, but the proposals appear liberal, enlightened, progressive and (best of all) nice. All these being agreeable responses which Daniel Kahneman would call “fast thinking” (often unreliable). “Caring coalition-dom”, if not quite St Albion. Criticism has the disadvantage of appearing illiberal, unenlightened, un-progressive, and ultimately nasty, if not outright homophobic. No stampede, then, to
express any alternative view.
However tentatively one must tread, there is room to pause for thought. Edmund Burke would have been appalled by the government’s proposals, not because he was unenlightened or notably nasty, but because he emphasised the importance, delicacy and complex interconnectedness of established public institutions. Where these are the product of slow, continuous and incremental development, and carry the patina of cultural accretions across generations, forming a bond with the past and link to the future, Burke warned of the risk and danger carried by their sudden radical change. Famously, Reflections on the revolution in France is a fierce fugue on the theme: “be careful what you wish for”. Ideals of liberté, égalité, fraternité sound admirable, eliciting as they do “fast thinking” responses. The Bourbons had striking shortcomings, though often good taste. But upon its promises the revolution delivered Napoleon Bonaparte and other unpleasantness. Connor Cruise O’Brien observed that Burke is the only English speaker among five non-francophones included among “historians and commentators” in the Critical dictionary of the French revolution published in 1988. His view there described as “d’une clairvoyance pénétrante”.
Radical change in the law on marriage may not presage a re-emergence of imperial rule, but will represent a de-anchoring of a fundamental western concept from assumptions long made about its characteristic content and nature that have remained approximately consistent since before Aristotle, though being subject to change and development. In 1509 Erasmus (no revolutionary) was provocative in the seminal idea that marriage was also for friendship, mutual comfort and companionship, not only procreation. But the irreducible core of marriage remains, for the time being, the permanent monogamous union of a male and female as the essential biological reproductive organism of society. At least historically, a key purpose has been the provision of a stable context in which children may be reared and socialised.
Predictable rules for succession have been at least as important. If historically this has been true, other than the continuing restriction to the union of one male and one female, each is now heavily qualified to the point where largely only theoretical. It may be simpler and more advantageous to get out of a marriage than to terminate a mobile phone contract. Thus a vow, oddly, may be less binding than a promise.
The reasons for radical change in the concept of marriage would appear to be limited to two: either the moral judgment underlying the concept of marriage, as confined to the union between a male and female, is wrong; or the existing position in relation to marriage is unjust. The first of these inescapably rests upon an alternative moral judgment considered to be better; the second raises the intractable question of the nature of justice in this context. One can but admire government insouciance in reducing an overwhelming question to a ball. But why delay if legislation can be enacted that appears progressive, liberal and nice, and at least something can be done?
Why is the state concerned with marriage at all? Implicit in its engagement is the proposition that marriage represents concurrently both a private and a public good. That says nothing about the content of the public good or the reason for the state’s engagement with it, nor the ranking of that good among others competing for protection. Put another way, why does the state salience the relationship that is marriage in a way that is different from other relationships?
To date, no one has suggested that the ideal is to privatise marriage completely, de-couple and disestablish the state from its present role and licence private operators, say Tesco, to officiate – though the parties would be cheaper – for a purely private arrangement.
The proposition that there is a moral content in marriage is irresistible. It might be said that the moral and ethical attributes of marriage are prior to those merely legal. Few would say of marriage, as can be said of companies, “all there is are the rules”. But moral value judgments are scarcely the concern of the state save where an identifiable public good is engaged that the state must act to protect. That is to beg the questions. But it is no function of the state to teach morality.
The issue of justice is different. On one view the absence of the availability of marriage to same sex partners represents a continuing injustice and affront. The essential argument being it represents an inequality of treatment, and thus discrimination, that is demeaning. Whether that is so depends upon the a priori assumption that, in this particular context, inequality of treatment and discrimination must be an injustice. Such a view imports either a libertarian or egalitarian distributive view of the nature of justice. That is the constitutional underpinning of the judgment of the great South African judge, Albie Sachs, in the 2005 constitutional court decision in Fourie v The Minister for Home Affairs. He concluded  that the failure of the common law and the Marriage Act to provide means whereby same sex couples can enjoy the same status accorded to heterosexual couples through marriage was an unjustifiable violation of their constitutional right to equal protection, their right not to be discriminated against unfairly, and an unjustifiable violation of their right to dignity. The judgment depends upon a reading of the South African constitution that is avowedly distributive and Rawlsian. That is understandable for historical reasons, and consciousness of the evil of miscegenation is not far from the judge’s reasoning or from the constitution.
But a distributive view of justice is not the only one. Further, if the essential issue is libertarian, viz freedom to choose who to marry, irrespective of their sex, and respect for the autonomy of the individual in exercising that choice, the state can have no obvious justification for limiting marriage to only two persons.
Logically if that ground is sufficient, polygamy and polyandry (apparently never popular anywhere) so long as consensual should be recognised. There are those who would contend for the right to polygamous marriages on cultural and religious grounds. There is no reason, on this analysis, for the state to be enthusiastic to accommodate some minorities and not others.
The question remains what it is in or about marriage that the state is concerned with. It is a question that government is singularly ill-suited to answer positively because doing so entails the programmatic making of moral judgments not its business. Michael Oakeshott, in his essay on conservatism as a disposition to limited government, like Burke, counselled: “modification of the rules should always reflect, and never impose, a change in the activities and beliefs of those who are subject to them, and should never on any occasion be so great as to destroy the ensemble.” He suggested that modification of the rules by which government holds the ring as neutral umpire be delayed “until it is clear the change of circumstances it is designed to reflect has come to stay for a while”. Poor Oscar Wilde, tragic Alan Turing.
The current proposals are, on one view, attractive, but these do not reflect a public change in perception that “has come to stay for a while”. There is no domestic or European consensus. On the contrary, the changes require fundamental change to a concept and meaning of a word that is of ancient provenance and association. Primitive societies limit multiple concepts to single words. Nuance in English is genius. When in 1876 Thomas Huxley wanted to describe his belief that neither affirmed nor denied the divine or the immortality of the soul, he did not shoehorn his idea or hijack the word “atheist”, which was different. He made good linguistic deficit by adding “agnostic” to the spectrum of belief.
Paul Marshall, No5 Chambers