Martin Sewell: Returning to "Gay Marriage" risks a meaningless argument about identicality

Martin Sewell is a family Solicitor and an Anglican Reader.

If I were to have made three predictions about David Cameron’s announcement that he would be reviewing the issue of “Gay Marriage” they would have been:

1. That it would provoke a swift response;
2. It would become a disproportionate distraction from other more pressing problems;
3. It would be made on the eve of a Liberal Democrat Conference

Roger Helmer MEP was quick out of the traps yesterday pointing out from a Libertarian Conservative standpoint that it is no part of a Government’s role to re-define a word of common language and universal culture, that society is a stakeholder in an institution that is the bedrock of all human societies with which we tamper at our peril, and that the proposal would both broaden marriage and at the same time render it more shallow.

Joseph Willits assisted by giving the provenance of the proposal and very usefully directed us to the pressure applied to the Prime Minister by “gay activists”, not least Peter Tatchell, who is behind a legal challenge to the European Court of Human Rights. Particularly helpful to an understanding of this aspect was a Telegraph story which assists Roger’s argument by highlighting that at the same time as supporting four gay couples to challenge what was intended to be the settlement of the Gay Marriage issue, the legal action is being brought by an additional four heterosexual anti-marriage campaigners who wish to contract Civil Partnerships to escape the “Patriarchal history of marriage.”

I suspect, however, that however much David Cameron tries to placate such new friends, he will never escape being the Bullingdon boy to them, because frankly Dave - “they are just not that into you”. If he wants to find support, he might have turned to Archbishop Cranmer, who did not take the point that the “Third Party” to marriage was God rather than Society, but usefully pointed out that Parliament has already legislated that marriage is the union between a Man and a Woman by its necessary endorsement of the marriage service of the Established Church. He also inevitably alludes to the fact that the assurance that any reform will be limited to secular marriage services is unreliable. Mr Tatchell, and his secular atheist friends, is not known for limiting the ambition of their reach or their sensitivity towards those of faith, and the Prime Minister already has a poor record of protecting Christians, whom he was happy to throw under the atheist bus on issues of the Catholic adoption agencies and Christian bed and breakfasts.

There is a great deal yet to be said. The relatively low take-up of the Civil Partnerships suggests that Gay Marriage is a less than pressing priority, even for a Prime Minister needing distraction from other woes, and I may have to return to argue that once marriage is re-defined/updated from “One Man to One Woman”, the incremental logic of Human Rights will inevitably lead some to assert the necessity of introducing options for polygamy, and polyandry, so that the dissolution of marriage as we know it will continue as Roger fears.

As one whose interests cover the point where politics, religion and law meet, however, my earliest contribution is best centred on the latter, and to review how we got where we are.

The Civil Partnership Act of 2004 was the end of a 40 year process of legally integrating the unmarried and the gay into mainstream society and stripping them of any taint of civil or criminal disability. Whilst this was being done, the traditional nature of marriage was re-affirmed in the Matrimonial Causes Act of 1973, but around that core of tradition, virtually everything else changed. Criminal sanction of the gay was rightly removed, the age of consent has been addressed, there has been Equality and Anti-Discriminatory legislation. That legislation has emboldened the activists who now use it as a sword (not a shield)  with which to "get even" with those of the most traditional religious belief. That aspect is not a pretty sight and the Prime Minister is being now caught up in just such an enterprise.

The Civil Partnership Act was intended to be the grand settlement of the issue. It was a flagship policy of the Labour Government and was commendably thorough. Hitherto, gay partners had had to imperfectly construct their legal affairs though a combination of agreements, practical, adjustments and wills, yet there were still major injustices that needed to be addressed to give them easy access to the kind of protections heterosexuals could easily access through marriage.

Parliament set about comprehensively and assiduously addressing those problems in a major and  complete piece of legislation. So successful was the enterprise that when the President of the Family Division, Sir Mark Potter, reviewed it in the case of Wilkinson v Kitzinger, he was able to describe the effects of the Act as conferring “the benefits of marriage in all but name”. That is no mean endorsement and, accordingly, calls into question the pressing need to revisit the subject for any real purpose outside of those who appear “intelligently designed” for discontent.

The Court of Appeal considered the issue of alleged residual discrimination. Its view is worth quoting at length:

“Parliament has taken steps by enacting the Civil Partnership Act to accord same sex relationships effectively all rights responsibilities benefits and advantages of civil marriage save the name, thereby to remove the legal social and economic disadvantages suffered by homosexuals who wish to join stable long term relationships. To the extent that by reason of that distinction it discriminates against same sex partners, such distinction has a legitimate aim, is reasonable, and proportionate and falls within the margin of appreciation accorded to Convention States”

The “proportionate aim” was to protect the societal value of the institution of marriage and to preserve it from the Prime Minister's would-be chums who are desperate to bang on about the “patriarchal history of marriage.” For those not satisfied with UK jurisprudence, the European Court of Human Rights considered the matter in the case of Schalke v Kopf, where it decided that the Austrian Government did not infringe the Article 12 Right to found a family by not allowing access to marriage to same sex couples.

It is worth reminding ourselves how the Civil Partnership Act was intended to be, and achieved, comprehensive equalisation. It contained 8 Parts, 264 Sections and no fewer than 30 Schedules. Those schedules addressed every reference to married persons in prior legislation and carefully amended each to ensure that it included Civil Partners. This was no slapdash, headline grabbing only, reform. When read alongside the Anti-Discriminatory and Equality legislation passed during the same era, it is impossible to disagree with the MP who referred to it during the Committee Stage as the “last piece in the equality jigsaw”.

So determined were the legislators to ensure a mirroring of marriage features, that it transposed the framework for both access and egress from divorce law to that Civil Partnership. Perhaps that care is best illustrated in the “cutting and pasting” of the prohibition of marriage within prohibited degrees of family. Given the genetic basis which underpins such a prohibition, it is arguably less valid where conception cannot be casual. It is thus interesting that Parliament still would not deviate from a determination to make the two jurisprudentially identical. Parliament also went to great pains to ensure that the mirroring was reflected in the Tax and Financial Codes.

At a late stage in the legislative process, Norman Tebbit sought to extend the ambit of the Act to apply it to others in a disadvantaged but non-sexual relationship of dependency. He proposed that it also apply to mothers cared for by spinster daughters, or siblings. This superficially attractive use of the legislative framework to “kill two birds with one stone” was was roundly rejected. The Act was intended to be, and did, stand as the comprehensive settlement. Its passage was to be the cathartic triumph of equalisation, the righting of historic wrong. Nothing was to rain on this gay parade - and we all cheered - well, most of us.

When you appreciate how comprehensive the Parliamentary care for gay equality was, it places into context the remarks of Peter Tatchell’s legal guide in this campaign as quoted in the Telegraph. Professor Robert Wintemute described the Civil Partnership Act as “discriminatory and obnoxious”. He likens the present position to Apartheid South Africa or 1940’s Alabama, where black people could not use the same drinking fountains or beaches. This is not only a risible comparison, a disgraceful and distorted argument given the above, but an insult to those who faced real discrimination.

You might wonder, given this history, why the P.M. might want to align himself with such campaigners. There is no substance in the complaints of the malcontents. They are rebels without a substantive cause,  save that of confronting the traditional on every conceivable occasion. Meanwhile there are many amongst the ranks of the Civilly Partnered who are content with the settlement and they are supported by those who love and respect them for who they are, rather than insisting upon a meaningless assertion of identicality.

As David Cameron continues to act as the support act to Peter Tatchell and Professor Wintemute, he attempts to strike a balance by limiting the change to the secular sphere only. If he thinks his new-found friends will long tolerate a religious exemption to what they assert as “true equality”, he is sadly mistaken.

I suspect he is banking on the fact that the Churches will “go quietly” in that eventuality. Maybe, but there is one thing I can tell him with confidence. The Imams won’t.