« Jill Kirby: Vince Cable's choice for university access tsar shows why Gove should be given control of higher education | Main | Bruce Anderson: David Cameron's speech yesterday was the best he has yet delivered. The Unionist fightback has begun. »

Andrew Lilico

Andrew Lilico: "Civil partnership" vs "gay marriage" - Why does it matter what you call it?

Unlike many Conservatives, my position on gay marriage hasn't changed.  I've always been in favour of a legal form of gay marriage.  I've always regarded legal marriage as providing a convenient bundling of various contractual / legal arrangements - inheritance in the event of the death of a partner, next of kin for medical consultation, joint guardianship of children, and so on.  All that legal marriage does is to bundle together various contracts that one could make separately into one overall comprehensive (and thus more secure) contract.  I've never been able to fathom what good reason anyone supposed there was for denying homosexuals the legal right to bundle their contracts in exactly the same way heterosexuals have always been able to.  Indeed, since the giving and keeping of promises is one of the essential building-blocks of human society, it goes further than simplly being a matter of freedom for homosexuals - facilitating such promise-exchanges has always seemed to me to be one of the things society exists for.

Actually, my own view goes further and I don't see any good reason for preventing polygamists from entering into similar contractual arrangements.  People say that polygamous relationships intrinsically involve one-sided power relationships and are immoral and all kinds of virtually exact repetitions of the arguments people made against homosexual marriages.  If that's your opinion, then don't enter into a polygamous marriage!  But the issue isn't whether they are right - legal marriage has absolutely nothing at all to do with right and wrong (otherwise we would not marry adulterers).  Being legally married does not imply that the state approves of your relationship, declares you morally upright or something - any more than the state approves of your 125% mortgage or your pornographic magazine business partnership.  Being legally married simply means that the state recognises and stands behind your promise exchange, just as it stands behind other sorts of contract.

I find it a bit odd, frankly, having to write such things.  I thought we'd had this debate some time ago, and those on my side of the debate had won.  What are we debating about now?  Don't we already have a legal form of homosexual marriage - civil partnership?

For some reason that escapes me, some people seem to want civil partnership legally re-named "gay marriage", even though it's socially called that anyway.  And for some other reason beyond human ken, some other people seem to object.  I've tried to understand why - and am about to give you my pitiful efforts to make sense of the debate - but the truth is that I really don't get it.

The argument in favour appears to be that some people don't think a civil partnership is a "real" marriage.  And for some reason the people that worry about this think more people will regard gay marriages as real marriages if they are called "marriages".  But how will that change anything?  A marriage between a man and a woman is traditionally understood as a particular kind of relationship.  And, without getting too gory, to be a "marriage" that relationship has to be consummated in a very mechanically specific way (case law is quite clear about this; Bill Clinton would doubtless approve).  That particular form of consummation is, by definition, not available to homosexual couples.  So they can't have consummated "marriages" in the traditional sense.  It doesn't follow that their relationships are bad - any more than the fact that a woman isn't a man makes her bad.  If you're a woman, you're a woman.  And if you are a homosexual couple, your marriages cannot be "consummated" in the technical sense traditionally understood.  That's not an ethical point - it's a purely mechanical one.

So, no matter what you call it, a gay marriage will always be a "gay marriage" and a straight marriage will always be something different.  We can call them the same thing, if you like, but that doesn't change the substance of the matter any more than if we insisted that men and women should always be referred to as "persons" meant there ceased to be a difference between being a male person and a female person.

This is obvious - so obvious it's barely worth saying.  So given that gay marriages and straight marriages are mechanically different (and cannot be otherwise), why would it matter if they had slightly different names?

And on the other side, why would it matter if they had the same name?  Some people seem to imagine that there is some special religious content to the word "marriage", but I just can't see that.  We called it a marriage when Elizabeth Taylor was on her eighth - hardly "until death do us part"!  Most people called it a "marriage" when Britney Spears was "married" for 55 hours in 2004.  So it's not as though we are desperately protective of the term!

I can see two very marginal concerns.  One is that Anglican Churchmen are entitled to conduct legal weddings.  The state traditionally claimed that that implied that any couple legally entitled to marry was legally entitled to demand of an Anglican minister that he / she married them.  The church has always denied that the state had such legal jurisdiction - this goes back to one of those ancient and arcane church-state demarcation disputes.  Notionally, the state traditionally claims that a couple including a divorcee is entitled to demand that an Anglican minister marry them.  The Church's position has always officially been that divorcees may not remarry.  (Indeed, I even once attended a church in which the minister even objected to reading out the bans of marriage for divorcees, and did so with the preamble "Under protest, and only because it is required of me by law, I publish the bans of marriage of...")  The Church, though, has left it to the conscience of the vicar whether he / she would conduct such marriages.

Presumably there is some chance that, if there were one legal form of marriage including for homosexuals, some gay couple would seek to have a minister marry them, and when he or she refused, there would be a attempt to bring a court case - much as has in fact happened for registrars.  But why couldn't this be dealt with just as the divorcee issue has been - by sweeping it under the carpet; by the police refusing to bring the case or the courts refusing to hear it?  The Church, remember, denies even that the state has the legal authority to make a law requiring marriage-overseeing by Anglican priests - that's surely not a can of worms the state needs to open again now, and without its being opened there cannot be the risk identified.

The second vague quibble one might have with calling gay marriages "marriages" for legal purposes goes back to this gory business of consummation.  If gay marriages are to be legal marriages, then we must either abandon the notion of consummation or have something that counted as "consummation" for gay couples.

Abandoning consummation would obviously involve re-writing quite a lot of case law.  It could also be a problem for anyone that wanted to restrict consummating behaviour to after the marriage ritual.  Those believing in consummation following the marriage ritual might want a clear line not to cross beforehand.

The latter path would be tricky for (again skating over gory matters) homosexual relationships are physically / mechanically diverse (and why shouldn't they be?) in ways that would inevitably make defining a precise "consummation" problematic.

These quibbles seem minor to me - the number of cases likely to arise in which the issue of consummation is at stake today must be tiny.  Why couldn't we have a new category of legal contract called something else - say a "justice-based partnership" or a "covenant partnership" for those that wanted classical consummation to be part of the legal structure of their relationships and leave the word "marriage" to the rest?  The consummation issue shouldn't really be a bar to legally terming gay marriages "marriages" if anyone really wants that.

But on the other side, there seems so little point to me in renaming the gay marriages legally termed "civil partnership" anything else that even the tiniest quibble is probably sufficient to make it not worth doing.

Didn't we win?  There is now a legal form of gay marriage - it's called "civil partnership", legally, but there's nothing to stop homosexual couples saying "You're invited to my marriage" or "it's exciting to be getting married" or referring to their legal civil partner as "my spouse".  Can't we just declare victory and move on?


You must be logged in using Intense Debate, Wordpress, Twitter or Facebook to comment.