A commentary and resource on Law and Sexuality by Professor Chris Ashford and guests
The Marriage (Same Sex Couples) Bill cleared the House of Commons this week and it now heads to the House of Lords. The final debate saw a number of Conservatives speak out against the legislation in colourful terms. A small number of MPs from other parties were left having to explain their own opposition to the legislation, which was passed with an overwhelming majority.
There was also an attempt to ‘wreck’ the Bill with the extension of Civil Partnerships to different-sex couples. This extension is something that I and many others have called for but it appeared to be more about strategy and gearing up the damage the Bill in the Lords than genuine progressive politics from the Tory backbencher (Tim Loughton) behind the measure. The amendment was defeated. However, not before extracting a pledge of a review of civil partnerships by the Government. This may actually prove rather disastrous for those (like myself) who want to see greater plurality in partnership rights, institutions and frameworks.
Rather than the preferable situation of having two (or more) civil institutions operating (civil partnerships and marriage) a review by the present government – led by “I’m a marriage man myself” David Cameron- might lead to the Government simply abolishing all civil partnerships as a way of avoiding legal challenges (which I predict will ultimately be successful) for the extension of civil partnerships to different-sex couples. It would arguably be “full equality” and thus prove hard for those that have campaigned for equality – such as (albeit late to the marriage cause) Stonewall – to oppose the move. You wanted “real” marriage, so why cling to the institution you defined as inferior?
Then there is the question of whether to close civil partnerships to ‘new entrants’, thus creating a legal anomaly and a bureaucratic costs burden as processes and forms would have to still be provided for a diminishing percentage of the population, or to abolish the institution completely and automatically ‘upgrade’ couples unless they object (costly to the State), or to compulsorily abolish existing civil partnerships and require couples to apply to be married of they wish to continue such rights/obligations (politically impossible). The complexity of these outcomes point any review towards simply maintaining the status quo regarding civil partnerships. However, as I note above, this is illusionary as a legal challenge would ultimately change the law (so why not extend it pre-emptively?). Perhaps the Lords will have a go at introducing a sensible amendment that digs the Government out of this mess, but I wouldn’t hold my breath.
Aggressive homosexual community
The aspect of the recent Parliamentary debate on the Bill that received the most attention was a remark by Conservative MP, Sir Gerald Howarth who – in responding to an intervention from fellow Conservative MP, the openly gay Margot James – made reference to an “aggressive homosexual community” immediately triggering a social media storm as the LGBTQ community began using the hashtag #aggressivehomosexuals and a spate of blogs and media comment was thrown up in the wake of the comments. Here are the comments in full:
‘[…] Let me ask my hon. Friend this. Does he not think that some of the legislation that has been passed over the years and to which he seems to object, historically, has actually levelled the playing field rather than going too far in the opposite direction?
Sir Gerald Howarth: I greatly respect my hon. Friend, whom I consider to be a very decent person and who has expressed her view very courteously. However, I warn her, and Members in all parts of the House, that I fear that the playing field is not being levelled. I believe that the pendulum is now swinging too far in the opposite direction. There are plenty in the aggressive homosexual community who see this is as but a stepping stone to something even further.
I say to my hon. Friend that striking the right balance is, of course, important—[Interruption.] Now I am being shouted down for expressing a view in the House of Commons with which others do not agree.’
Who, social media asked, were these so-called aggressive homosexuals? Howarth was asked directly and his response was published on Facebook and then reported here. To say I was surprised to be one of the two people Howarth cited – the other being Peter Tatchell – as the basis for his remark would be something of an understatement.
Howarth quoted me directly as saying:
“There remain numerous sexual freedoms to campaign on – yes sexual – that’s what gay rights is about, not merely a civil rights campaign – and there are battles still to be won. Battles relating to pornography, the continued criminalisation of consensual sexual acts, re-constructing our ideas of relationships in relation to sex, monogamy and the illusion that only ‘couples’ might want to enter into a state-sanctioned partnership, are just a handful which spring to mind.
“The marriage bill should be welcomed, but it is not the end of the journey, or the final piece in a jigsaw. It is just another step – albeit a significant one- on a never-ending journey” (emphasis added).
All of which is true – I did say it. In fact, I said it here. The remarks were also reported in American Conservative magazine, US talk radio and a variety of right-wing blogs. It’s unclear from which source that Sir Gerald encountered the remarks.
I was motivated by a rather bland discussion of the Marriage (Same Sex Couples) Bill and a broader failure to engage with queer discussions of law. I was particularly irritated by the Stonewall idea that this was the ‘final piece in the Jigsaw’. Who decided what picture we were putting together? Why the assumption this was the end-point? How to answer those who were asking ‘what next’?
My remarks were not a statement of immediate intent, and were not bound by a particular time-framework. Rather, when one looks at history through the Foucauldian prism of understanding, we see our attitudes to, and regulation of sexual behaviour and the understanding and definition of identities has evolved over centuries raising questions about what is ‘good’ or ‘bad’. These cease to be absolutes but rather ideas that evolve.
In other words, what we regard as ‘wrong’ sexually today, might be fine in the future and vice versa. Moreover, history tells us that these ‘truths’ are subject to shifts in societal power and with that shift truth is re-made. Law seeks to ‘capture’, to define truth at a moment in (an unending) history. In doing so, it accords power to some, and limits the power and freedom of others. As power shifts, truth shifts, and so inevitably must law.
Of course, what I also did in that quote was to position the debate in sexual terms rather than the rights-based discourse that so dominates today. That rights framing has been very successful in terms of granting new legal rights, but it has also served to silence desire. Homosexuals can openly admit to anything it seems, except actually having sex. And then, on the rare occasion that sex might be discussed, it is against the standard of illusionary heterosexual norms of Gayle Rubin’s concept of a charmed charmed circle – monogamy, marriage-based, no kinks etc. This is absurd for both heterosexuals and homosexuals (and all those who identify by other labels) but can not be fully challenged from the narrow confines of a debate framed by equality and rights.
To say therefore that in the future we will re-examine the law in relation to pornography, consent, monogamy and forms of relationship recognition is accordingly to state the blindingly obvious. It is by extension only logical to advocate debating what form such changes might take. As an academic, that is arguably not merely my role but my obligation.
There are of course some who agree with me that further change will – and indeed should – come, but Sir Gerald should perhaps reflect on this: that just as the overwhelming majority of people are not ready for all the change that I advocate, they have also had enough of the status quo that he so desperately and fearfully sought to defend last week.
One thing does lead to another, but the world only spins forward.