Friday, 1 October 2010

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.


JuliaM said...

"As for the civil partners, if the name bothers you, the just describe yourself as 'married'. "

Of the three gay couples I know who had civil ceremonies (and damn fine do's they were too!) not one describes their union as 'marriage'.

Because it isn't. And why should they do so, just to make a point?

Submariner said...


"Because it isn't". This cuts to the heart of the point I believe WoaR was making. On what definition isn't it? To put it another way, what aspect of their relationship differs from how it would be if they were married, apart from the word?

If the answer is "none" then the argument is purely semantic and has no practical meaning whatsoever.

Will Jones said...

Marriage is a religious rite. If your religion does not approve of homosexual union, then you can't be married. You can, as rightly point out, undergo civil union which is simply recognition by the state entitling you to all the associated benefits.

I can't believe that people get into a fuss about this; if they are devout and have a moral dilemma because of their religion's stance, either take it up with the clergy/organisation, leave the religion or conform. If you can't live by the rules, or think they're stupid, find another club; if the thought of salvation is important then keep them, especially since faith is supposed to be a struggle (though there may be some problems with this route).

If they're not relgious, then why do they care a damn what happens in a religious? Would an athiest/agnostic really want to get their union blessed and recongnised by a religion.

The whole thing is ridiculous especially as there now exists no legal impediments to civil (secular) recognition.

JuliaM said...

"To put it another way, what aspect of their relationship differs from how it would be if they were married, apart from the word?"

Because, as far as the zealots are concerned, they don't get to wave the term in the faces of their opponents, the ones who disapprove of their lifestyle, and scream 'Ha! We won!'...

"I can't believe that people get into a fuss about this"

I can.

SadButMadLad said...

Religion and the state are two totally seperate entities and they shouldn't be merged in any way. Marriage is a purely religous term in Islam, Judaism, and Christianity.

The state recognises these unions and gives them certain tax advantages but it does not make any pre conditions on these marriages.

If someone managed to create a new religion (not scientology) and this religion was recognised (unlike scientology) which requires a marriage to be between gay people then the state will have to recognise this union and give them the same tax advantages as married Christians or Muslims.

Some of my other thoughts on marriage and the state on my blog -

Ed Butt said...

I belive what that little turd Tachell is up to is he will try to bully the government into compelling by law churches that do not recognise homosexual unions to perform marriages between same sex couples by making it a 'right'.

That is what the gay community in California were and still are doing.

If the moves succeed governments will be seen to be placing the rights of one social group above the rights of another.

That would open a very big can of worms.

Woman on a Raft said...

"he will try to bully the government into compelling by law churches that do not recognise homosexual unions to perform marriages between same sex couples by making it a 'right'".

Indeed, that's the aim. The issue is not marriage in civil terms - that pass was already sold - it is whether people who don't recognize your union can be compelled to do so by the civil law under their religious rites and in defiance of their religious beliefs.

Good luck with that argument down the mosque, Mr Tatchell.

I await with a bag of popcorn the clashing arguments of freedom of religious expression and the primacy of civil rights law.

My general fear about the gay marriage - and gay clergyfolk - argument is that it comes when I would prefer the Christian church to be as united as possible. They fight like ferrets in a sack at the best of times and this is not the best of times. The Christian church has a powerful enemy towering over it and it needs all the members it can get.

Having said that, the bishop Gene Robinson is frightful and shouldn't be allowed in a church until he is a Christian and takes it seriously, which he's shown no sign of so far.

All Seeing Eye said...

I actually know two straight blokes who took a 'civil partnership' when they went into business together purely for the tax breaks and benefits - the arrangements suited their financial needs better than setting up a company.

But it's the militant requirement of homosexual activists to own the word which galls.

"Marriage" has been used for centuries to describe a religious union between an man and a woman. The effort to pervert the concept into something else is seen by the gay lobby as a huge 'victory' and by Christians as a potential 'defeat'.

A civil partnership is legally not fundamentally different to marriage, so why not accept the legal victory and just call the damn thing "Eric" instead? Because that wouldn't carry the boot-on-the-face mark of triumphalism.

What's in a word? In this case, everything. To both sides.

Woman on a Raft said...

two straight blokes who took a 'civil partnership' when they went into business together purely for the tax breaks and benefits

Oh soldier, soldier
Won't you marry me
With your musket, fife and drum.

Oh no sweet maid
I cannot marry thee
For I have a civil partnership
With another bloke already
Purely buisness you understand.

malpas said...

bring back 'droit de seigneur' that will sort things out.

killemallletgodsortemout said...



Tony Sidaway said...

Clever argument, but there's a name for this style: sophistry.

As recently as half a decade ago a marriage between two people of the same sex was one that couldn't be registered, had no weight in law, and probably wouldn't even be recognised far outside the immediate circle of friends, family and associates of the couple.

Well the Equality Act and other laws have done much to change that, to the extent that the outcome of the Cornish guest house case was not in serious doubt.

Could a couple in 2001, say, if determined enough, register something like a civil partnership? Only partly.

At best they'd still fail the Bull test, they could be kicked out of a guest house for being "unmarried". People they needed to depend on in their daily lives could still invoke arbitrary reasons to treat them as unequal to a married couple.
Above, some seem to have suggested that the goal of Tatchell is to compel ministers to perform rites they don't agree with. That's just paranoid nonsense.

Woman on a Raft said...

Apologies for the delayed appearance of the comment above. It was trapped by the spam filter but I've no idea why.

The spam filter seems to make things up as it goes along.