Marriage a la mode - gay

Veteran gay rights campaigner Peter Tatchell has been chasing the government impishly on the issue of gay marriage.

Tatchell is not stupid; when he claims that there is a ban on gay civil marriage he must know he is talking bunk to make a political splash. First though, a recap of the legal and philosophical situation because to hear Tatchell - and a lot of other people - talk, you'd think it was banned. It isn't. The state doesn't have that power.

The state doesn't 'grant' marriages because that is wizarding, that is, and the state doesn't have a magic wand. All it can do is register them after the fact - and refuse to do so if it believes there is an impediment, such as one party being already married.

Marriage has its metaphysical underpinning in a consenting pledge between individuals, usually two but it can be more. Until recently it didn't make a lot of sense for people of the same sex to do it, but if Jack and John went off and pledged allegiance to each other, then there was nothing anyone could do to prevent that. If they came back and said they were married, then in their eyes, they were.

Of course, everyone would have laughed at them and told they they were not married, but that's a matter of opinion on a philosophical level. Jack and John believe they are cross-vowed, whereas other people believe a condition for the vow to be valid is that they have to be different sexes.

If Jack and John wanted to put some legal stiffening behind that to prevent bossy family and the intestacy law from frustrating their wishes, they had only to go down to the solicitor's and make a number of witnessed declarations, such as a pair of wills, clearly delineated property contracts, and make sure that they named each other as next-of-kin on health records, contacts on each other's passport, power of attorney, attitude to organ donation etc. The blood family may or may not have default rights but these collapse where there is a clear legal document telling administrators that default settings do not apply.

However several things could have been denied to Jack and John. They had no way of entering the relationship on a state-recognized register, short of forming a partnership under commercial law. They did not, until several test cases were brought, have a way of securing benefits from employers which were contingent on marriage which other married employees received. They could not rely on the default laws which normally govern marriage, nor the transfer of assets between the pair without tax. They could not force people in legal terms to recognize their binary relationship, but for all that, in their own eyes they were still married.

Various test cases and subsequent legislation dealt with the issue of partners being eligible for benefits on a non-discriminatory basis. A way to register a partnership and the remaining legal benefits was made, and called civil partnership. The naming was tactful; it was so that legislation could be got through without arguing about the label on the outside of the box for the next squillion years.

Inside the box, it is a civil marriage. Inside the box, all civil marriage is, is a publicly witnessed and registered mutual recognition of wishing to be accorded a particular status which then attracts certain legal rights, such as transfer of assets between partners without taxation.

Thus the benefits of same-sex marriage were secured for the people who wanted it. The paltry price for this was the name. Bargain. Register the civil partnership in the office, then, afterwards, hold what ever kind of celebration you damn well like. Get someone dressed up as Gandalf to muck about with a staff, a book and a ring. You either believe in magic, or you don't.

If you go down to the register office and comply with the requirements such as residency and capacity to consent, not being legally contracted to anyone already, not being within the degrees of family between which marriage or civil partnership are prohibited, etc, then you can have your civil marriage or civil partnership "solemnized" which means it will be contracted in front of witnesses and the presiding official will make sure as far as possible everyone is who they say they are, that they know what they are saying, and that the consent to what they are saying.

Your religious friends may pull faces and say you aren't married in the eyes of God, to which the answer is either "We'll just have to manage " or "She was there, She saw, and She approves".

There is one thing which was prohibited in civil weddings and civil partnerships. Religious symbolism and language. A church is a church and a state office is a state office. The state doesn't have the authority to do God, any god, and for once in the history of state arrogance it refused to be drawn in to this one.

So keen was the state not to blur this distinction that when in 1994 it allowed registration of civil marriages to happen in licenced locations which were not register offices, it maintained the prohibition on religious ceremonies. Section 46B(4)

"No religious service shall be used at a marriage on approved premises in pursuance of section 26(1)(bb) of this Act.”

Unfortunately, this sensible distinction was eroded in 2005 by people who were ignorant of the basis of religion and who cared nothing for constitutional arrangements, and who have been squaring up for a long time to try to force religious people to perform ceremonies they are simply not going to do.

As the Telegraph put it:

"readings such as Elizabeth Barrett Browning's How do I Love Thee and popular love songs such as Robbie Williams' Angels and Aretha Franklin's I Say a Little Prayer can be used during civil marriages. Readings from sacred texts, including the Bible, the Koran and the Torah, hymns or religious chants will still be barred."

(Note to the Telegraph: "Angels" is for funerals.)

The point here is was demarcation, an exquisite balance whereby the church accepted that the state could register marriages, while the secular state didn't step on its religious toes by claiming to have any priestly authority. "Blow that" said people who failed to grasp that this opens the door to a return to theocracy.

Technically, the use of self-chosen quasi-religious texts is more like the pagan practice of the contracting parties invoking divine blessings, so the official isn't really claiming to be a priest or shaman or rabbi, but it will have added to the confusion in some people's minds.

The Islington registrar Ms Ladele thought she was doing something religious and 'making' a marriage, like a vicar does, which was bunk from the beginning and the clue was in her job title: "registrar". Her role was to check the details and write down what she was told, and ensure they made the declaration with the approved wording. The case was legally about employment discrimination against her (she is thinking about taking the case to the ECHR), but most of the commentariat got to the nub of it; if your job is registering things for the state, such as civil partnerships and mixed-race babies, it isn't up to you to refuse to do the job just because you disapprove of either. What discrimination? Get on with your job.

As for the civil partners, if the name bothers you, the just describe yourself as 'married'. You can't be prevented from doing so.

In some people's eyes you aren't married but they probably won't accept that you are civilly partnered anyway. The law simply has no traction over that. So What? Nothing follows from this, except if they try to deny you rights to which you are legally entitled, in which case you can take legal action.