A busy day has meant I’m somewhat late to the party on the Government’s Response to same-sex marriage. Twitter and the blogs are awash with some really thoughtful and interesting responses. That said, you didn’t think I’d let today go by without comment did you?
Well, let’s firstly be clear what we’ve not seen today. We haven’t seen draft legislation. We don’t know what the bill will look like. We don’t know how these measures will be drafted and the potential problems/issues that will be raised or solved by such legislation.
What we do have is a Government response to a consultation. That consultation – the Government reports – received the largest ever response to any consultation by the UK Government. They received 228,000 responses (I was one) and 19 petitions (I signed one). So, some folks may count multiple times within these stats but it’s nonetheless impressive going.
Let’s get down to the substance of the response. The aspect that’s grabbing the attention of the media is the so-called ‘quadruple lock’. The BBC reports that:
- No religious organisation or individual minister being compelled to marry same-sex couples or to permit this to happen on their premises
- Making it unlawful for religious organisations or their ministers to marry same-sex couples unless their organisation’s governing body has expressly opted in to provisions for doing so
- Amending the 2010 Equality Act to ensure no discrimination claim can be brought against religious organisations or individual ministers for refusing to marry a same-sex couple
- The legislation explicitly stating that it will be illegal for the Church of England and the Church in Wales to marry same-sex couples and that Canon Law, which bans same-sex weddings, will continue to apply
These seems pretty solid and certainly addresses the worries of the religious lobby. Well, so you might have thought until the Church of Wales helpfully waded in after the announcement to say “sorry chaps, we’re not so sure about this” (or words to that effect).
Others have raised the issue of Civil Partnerships (see for example) and these proposals. The Government seems to have made a bit of a fudge of this aspect of reform, and to my mind clearly set up a legal challenge. At page 21, the Government states:
‘5.6 Having taken the range of views into account, we intend to proceed with the proposals in the consultation document to retain civil partnerships for same-sex couples only, including continuing to allow civil partnerships on religious premises. This is because we acknowledge the important role that these unions play in the lives of many couples. Civil partnerships are a well understood union, which have been become part of people’s everyday lives and society in general. We see little benefit from removing them.
5.7 Civil partnership formation will continue with exactly the same administrative processes and rules as currently exist. This includes current rules around notice periods, parental consent, age and witnesses.
5.8 We have always been clear that the aim of this consultation and subsequent legislation is to enable same-sex couples to get married, rather than wider reform, and therefore there is no need to remove civil partnerships to fulfil this aim.
5.9 While we will recognise marriages between same-sex couples formed abroad as marriages, the retention of civil partnerships will enable us to recognise same-sex civil unions (that are not marriages) to be recognised as civil partnerships in the UK.’
So, Civil Partnerships stay for same-sex couples alongside new rights of same-sex marriage but different-sex couples who already (obviously) can enter into marriage will not be able to enter into Civil partnerships. The careful logic for such obvious discrimination? They didn’t intend wider reform in this legislation. Well, they might not have intended it but that’ surely the inevitable consequence.
I’m genuinely at a loss that the Government have chosen at this point to not extend Civil Partnerships to different-sex couples. There is however an opportunity for Labour (or indeed someone else) to introduce an amendment introducing such a measure as part of the legislative process, and then campaign to secure cross-bench support. I hope they show some real leadership on this.
Whether they do or not, the stage looks set for a legal challenge on this – and I’m sure that at some point such a case will succeed. The Government can’t even be bothered rationalising the discrimination.
They state at 7.10 (page 26): ‘This consultation was not aimed at being a wider process of reform of marriage and civil partnership legislation and therefore we do not consider that it is necessary to open up civil partnerships to opposite sex couples in order to enable same-sex couples to get married.’ This is also arguably further fuels the Equal Love Campaign.
A welcome aspect of the report is an apparent understanding of the complexities that arise with the intersection of the current Civil Partnership Act and Gender Recognition Act.
The Government states (page 28) that: ‘8.12 The Government remains committed to enabling someone to change their legal gender while remaining in their marriage. Those in a civil partnership registered in England or Wales would have the option to convert their civil partnership without being seen as legally ending that union and rights accrued within the civil partnership would remain.’
So, if you are in a marriage and become legally defined as same-sex, you will have a choice of continuing to be married or entering into a Civil Partnership (although the document doesn’t seem to specify, so you could potentially have an action from someone saying they should have the same choice as someone entering into a partnership contract for the first time) . If you are different-sex, you have no choice, you must be married. Thus, a same-sex couple in a Civil Partnership becoming a different-sex couple for the purposes of the GRA must convert their same-sex Civil Partnership to a marriage or dissolve the CP in order to achieve a Gender Recognition Certificate.
If that doesn’t have legal challenge written all over it, I don’t know what does. The Equal Love Campaign could therefore be plausibly joined/extended by a challenge to the Civil Partnership law via a Trans case.
Let’s not talk about sex
The issue that first emerged from this report (or rather, first leaked) was the idea that the Civil Servants were rather baffled as to what to do about consummation (see my previous post here). What, one was therefore left wondering, would the Government’s response offer by way of resolution. Here’s what they say on page 31: ‘9.10 Therefore, in respect of non-consummation, we are proposing to create an exception for same-sex couples in a marriage, meaning that they would not be able cite non-consummation as a basis for annulling their marriage. Same-sex couples cannot currently annul their civil partnership on the basis of non-consummation. Opposite sex couples will continue to be able to annul their marriage on the grounds of non-consummation. By maintaining this position, we are not altering the legal position unnecessarily.’
To put it another way: Crikey, this one stumped us. We’ve therefore decided to pretend it doesn’t matter for the purposes of gay people. Now, can I stop thinking about gay sex? Thanks.
Far better to have gone further and stripped out the requirement for all marriages but the Government seem keen to only change the minimal possible sections of legislation to introduce same-sex marriage. However, given the fudge on consummation, these poor Civil Servants then faced the question of adultery, which does involve the ‘S’ word. Yes, more bewildering bonking and a legal question of what amounts to adultery. The report comments:
‘9.11 We are proposing to maintain the current position with regards to adultery in marriage. This means that anyone, including same-sex couples, will be able to cite adultery to end their marriage if the behaviours currently defined in case law are exhibited. ‘
This statement has the following footnote:
Adultery is currently defined as follows: there must be at least partial penetration of the female by the male for the act of adultery to be proved. The attempt to commit adultery must not be confused with the act itself, and if there is no such penetration, some lesser act of sexual gratification does not amount to adultery (c.f. Dennis v Dennis  2 ALL ER 51 2WLR 817).
So, funnily enough we’re back at the question of penetration and how gay people have sex. The Government try and resolve things a different way this time (page 31-32):
‘In practice this would mean for a same-sex married couple that, where one partner had sexual intercourse (within the meaning of the law for these purposes) with someone of the opposite sex, the other partner could cite adultery as grounds for divorce. If the behaviour exhibited fell short of the current legal definition of adultery, it would remain the case that this could be cited as unreasonable behaviour, as is the case with civil partnerships. In this way we believe that the current legal position on the meaning of adultery need not be changed. It will remain the case that a same-sex couple in a civil partnership will not be able to cite adultery to end their civil partnership.’
So, we’re not sure what would be adultery in these circumstances but it doesn’t matter anyway as you could use unreasonable behaviour in these circumstances anyway.
It’s a fudge but it works.
One of the issues that has seemingly pre-occupied some Tory backbenchers is what teachers will be forced to teach. Worry ye not bigoted Tory. Help is on hand via page 34:
‘9.27 Every school is required to ensure pupils are not taught anything that is inappropriate to their age, religious or cultural background. This will not change and pupils will continue to receive broad and balanced advice on marriage.
9.28 In addition, teachers, particularly in a faith school, will be able to continue to describe their belief that marriage is between a man and a woman whilst acknowledging and acting within the new legislative position which enables same-sex couples to get married. They must continue to act within the current parameters of legislation on hate speech and discrimination law.’
Yes folks, it’s still perfectly possible for a gay kid attending a Church of England School to be told that marriage means marriage between a man and a woman. This truly breaks my heart. It’s a back way in for prejudice, and raises serious questions about the continued freedom that religious schools have in England and Wales.
So, there we go. Lots of issues for further exploration and in need of resolution. Bring on the Bill.