A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
There is a Yes Minister joke that the British Civil Service would take care of the hardest part of a proposal by putting it in the title. So seems to have been the case when it comes to the publication yesterday of the government consultation ‘Equal Civil Marriage: A Consultation’.
Many on the usual social media sites and LGB advocacy and campaign groups sprang to life seeking to motivate people into responding to the consultation. I deliberately held off. I wanted to see how the debate initially shaped up and – something I’m not convinced everyone who is commenting has done – read the actual consultation document.
Let’s deal with the politics of this first off. The Conservatives need this. Ever since Cameron announced he was in favour of ‘gay marriage’ at the Conservative Autumn conference last year, it’s been a done deal. It’s win-win for Cameron. He has a majority to pass a bill on same-sex marriage of some description. if the party does it with just one or two dissenters, he can claim it to be a further sign that the party has genuinely changed. Something that LGBTory – the LGB group of the party – has been keen to establish as a narrative.
On the other hand, he may have a fight on his hand. I don’t think this is likely but let’s explore the scenario. In this situation, the comments of Peter Bone (the MP famous for introducing Mrs Bone at PMQs and looking like a man who once ran a football team and slept with Ulrika Johnson) would gain wider support among MPs and party activists in the same way that the NHS Bill did for for LibDems. This would give Cameron a sort of ‘Clause IV moment‘, defeating his party and able to demonstrate he is a true reformer. Either of these scenarios also allow the Tories to knock on the head the developing narrative that the Lib Dems are a moderating influence on the coalition. Tory strategists know this is an effective line and this would go some way to neutralising it.
This brings us to the Liberal Democrats themselves. Long committed to this reform – and long before it was popular to be – this will probably appear on lots of LibDem election literature as an achievement. Unfortunately, it doesn’t take them any further forward in terms of support in off-setting tuition fees or NHS reforms, and the Tory strategy outlined above removes any possible ‘credit’ for the LibDems. The one plus is it does enable them to do is to say that a minister in government has achieved something. It’s a questionable narrative but the party needs every crumb of comfort they can get. The LGBT+ LibDems have however created a useful resource supporting the bill and telling people step-by-step how to respond to the consultation.
For the Labour Party, this is the natural extension of their reforms. That narrative – which has not yet been clearly articulated – enables them to reach out to the New Labour voters who have deserted the party since 2010 (arguably in stages since 2001).
So politically, everybody – more or less – backs the idea of same-sex civil marriage. It’s a done deal. The real politics and the real legal debate should therefore be about the nature of the law, and what it embraces.
Puzzlingly, few activists have engaged with this. Peter Tatchell has called the consultation out on this issue but seemingly everyone else – notably Stonewall – are fighting what I would describe as the ‘wrong war’, and seeking to argue for a law on civil marriage.
Every Government figure I’ve seen on and in the media since the consultation emphasises the same line – this is about ‘civil marriage’ and not ‘religious marriage’. This is a bid to neutralise the challenge from religious lobbies – notably the Catholic Church – to attack legal reform. Don’t be fooled by the media brouhaha, the Government need not cave in as dramatically as they have.
The proposals on the table – and this aspect is not up for debate as the consultation makes clear – prohibit religious same-sex marriages or to be more precise, do not change the present arrangements in that regard.
Let’s revisit the overall aims of the legal reform, as set out by the Government:
So, even if a religious institution wanted to solemise a same-sex marriage they would prevented from doing so by law. The Government had two alternative approaches. Firstly, they could have enabled religious institutions to choose not to conduct marriages. However, as the Church performs a combined civil and religious ceremony, LGB activists could have argued that it was discrimination that only they were begin rejected by a particular church as a class (expect a legal case revolving around comparison to divorcees and so on). So, the chance of a legal challenge down the line would be high and the churches would have seen this. Not an attractive option for anybody.
The second option I would suggest, would have been to remove civil marriage powers from churches. It avoids the discrimination both in the proposed provisions and the first option I just outlined. It would upset many in faith groups, and would be a more radical or complicated message to convey to the public. It would not stop churches performing religious ceremonies for whoever they wanted but the actual civil – legally binding – marriage would come into existence outside of a religious institution. Although the harder road, I believe this would have been the better solution.
|If it worked for them…|
If you want a model of how this would look in reality, just look at the marriage of Prince Charles and Camilla Parker Bowles. A ‘legal’ ceremony followed by a religious one. Legally, they became married in Windsor Registry Office but for the Queen and many, they became married in the Chapel at Windsor Castle. This would be genuinely equal under law and would also remove any potential legal challenges. I am sure that this is where we will eventually end up but it’s a shame that all three parties are running scared of religious groups this time around.
Thanks to the government proposals on transgender marriage, it is now possible for someone legally defined as a male and someone legally defined as a female to enter into a marriage in a religious building and then for one of those individuals to transition so that there will be some individuals who are legally a same-sex couple and who married in a combined religious/civil ceremony. Don’t be fooled, these proposals create as many legal anomalies as they remove.
Speaking of which, the proposals also contain a paragraph (2.16) which will long be a focus for family law student seminars and tutorials in the coming years. It states:
‘Specifically, non-consummation and adultery are currently concepts that are defined in case law and apply only to marriage law, not civil partnership law. However, with the removal of the ban on same-sex couples having a civil marriage, these concepts will apply equally to same-sex and opposite-sex couples and case law may need to develop, over time, a definition as to what constitutes same-sex consummation and same-sex adultery.’
This is a polite way of saying that the law tends to think of consummation in terms of penile/vaginal penetration (although no orgasm or ejaculation is needed). This paragraph in the consultation is the equivalent of lifting a giant rug, shoving half-baked proposals under it, and hoping that nobody will notice. We did. This could have significant implications for different-sex marriage and the Government knows that but doesn’t want to get into that debate. We should.
Adultery too will need to be re-visited and a sensible move would simply be to abolish it. Anything else, and the Government will be lost in the midst of another legal mess. Again, a potentially major reform for family law.
Speaking of half-baked botches, Let’s turn to civil partnerships. The proposals set out a way that people can ‘covert’ from a civil partnership to marriage and answers my question in previous posts about the continued presence of civil partnerships – they stay. Hurrah! Unfortunately, they remain for same-sex couples only, and in doing so fails to address the arguments of the ongoing Equal Love legal challenge. That legal challenge will come and I can’t understand why the Government isn’t pre-empting such a challenge.
Paragraph 2.20 sets out another wonderful fudge:
‘The Government is not considering opening up civil partnerships to opposite-sex couples because we have been unable to identify a need for this. However, we appreciate that there are a number of views on this issue.’
How have they explored this need? What constitutes a need? If civil partnership ceremonies for same-sex couples fall below some mystery figure as a result of these reforms, will they then be abolished as there is ‘no longer a need’? Big questions with potentially hugely significant answers, but who is asking them?
This consultation is a significant document but it’s formal questions are limited and fail to engage with the real difficulties. That should not stop the big campaign and advocacy groups from questioning the Government. Yet as things stand, we are failing to provide that scrutiny to these proposals. The legal community similarly needs to wake up to the potentially half-baked and wide-ranging reforms that could come through as a result of these reforms with historic implications for marriage.
Read the full consultation here.