Marriage (Same Sex Couples)

Memorandum submitted by Nicholas Townsend (MB 120)

SUMMARY

I am glad to take the opportunity to make a submission to the Public Bill Committee. The aim of the submission is modest, to appeal for greater rigour in the way arguments for the central provision of the Bill, to introduce same-sex marriage, are made. I focus on two prominent arguments:

· the argument from unjust discrimination

· the argument from equality.

I show (section 2), in a clear way I hope, that the first of these is logically fallacious and should not carry weight in the case for same-sex marriage.

I show (section 3) that an argument from the principle of equality alone is insufficient to justify a change to same-sex marriage.

I then consider (section 4) another argument from equality, namely that, at present, equality contingently requires sameness as a means. This argument requires an assessment of likely consequences and faces an objection that it is unlikely to lead to its intended outcome.

I have long identified with the liberal political tradition and conclude (section 5) with a point that arises from this. Having shown that neither the argument from unjust discrimination nor that from the principle of equality alone justifies same-sex marriage, the question arises: what is this legislation doing? It is using state power to change what words mean, although there is nothing wrong with their existing meanings. This is a real concern.

1. Introduction

1.1 I am grateful that Parliament offers the opportunity for citizens to make submissions to this Public Bill Committee.

1.2 I respond to this opportunity in the light of two decades experience of teaching in Higher Education in areas including political theory, the history of political thought and Christian ethics.

1.3 I have also written a briefing on this Bill, specifically for Christian Parliamentarians, published last month. [1] However this submission to the Public Bill Committee is intended for all members of the Committee.

1.4 This submission focuses on some of the central issues at stake in the Bill’s main provision, namely to introduce same-sex marriage. I am well aware that, after the Second Reading, the House of Commons voted by a large majority for the principles of the Bill. However the Government’s unexplained rush to legislate, as well as the lack of normal pre-legislative governmental process (no enquiry, no Green Paper, no White Paper), means that it surely remains legitimate for citizens to scrutinise the basic arguments to which MPs appeal in supporting this Bill.

2. The Argument from Unjust Discrimination

2.1 In its simplest form, this argument can be put briefly. In law, gay couples can’t get married, which shows that the law discriminates against them, so the law should be changed so that they can marry.

2.2 Especially as this argument is so prominent in advocacy of same-sex marriage it should be scrutinised carefully. Anticipating what this section of the submission sets out, the problem with this argument is that its conclusion is assumed in one of its premises, which makes it logically fallacious. It assumes the view of what marriage is that it needs to demonstrate.

2.3 One way in which this argument can be examined carefully is by setting it out in the form of a series of syllogisms, as follows. The conclusion of each forms the first premise of the next. [2]

A. (i) In law, the good called ‘marriage’ is the union of a man and a woman.

(ii) Same-sex couples do not comprise a man and woman.

Therefore, in law same-sex couples cannot have the good called ‘marriage’.

B. (i) In law same-sex couples cannot have the good called ‘marriage’.

(ii) The law is wrong, not truthful, in saying that same-sex couples cannot have the good of marriage.

Therefore a different law could enable same-sex couples to have the good of marriage.

C. (i) A different law could enable same sex couples to have the good of ‘marriage’.

(ii) A law that deprives someone of a good that a different law could enable them to have unjustly discriminates against them.

Therefore the current law on marriage unjustly discriminates against gay couples.

2.3 Each of these three arguments is logically valid, I think. Therefore the argument that the three make together is equally valid.

2.4 In logic, ‘validity’ is not the same thing as ‘soundness’ or ‘truth’. Whether each of the syllogisms is also a ‘sound’ argument, i.e. whether it reaches a conclusion that is true, depends on whether its premises are true.

2.5 Both the premises of the first argument are true (all would agree). As the conclusion of this argument is the first premise of the second, this is true also.

2.6 However the second premise of the second argument, B(ii) (italicised above), is open to dispute. Whether it is true depends precisely on what ‘marriage’ is, i.e. on what this word is being used to refer to.

2.7 Summarised below are two different conceptions of what marriage is. There may well be more than two such conceptions at stake in public debate about this Bill. For simplicity I focus on two.

2.8 ‘Marriage A’

In this conception ‘marriage’ names a male-female sexual relationship of a certain kind, one in which both partners have committed to being faithful, sexually and in love and care for each other, while they are both alive. Such marriage is constituted by two things (corresponding respectively to the words ‘committed’ and ‘male-female sexual’ in the last two sentences):

· the unambiguously voluntary or free consent of both partners to be united in marriage (given in the vows)

· actual consummation of this union in full heterosexual intercourse.

This conception of marriage, ‘Marriage A’, can reasonably be called ‘traditional’.

2.9 ‘Marriage B’

‘Marriage’ names the kind of relationship referred to in the following quotation: "If two people love each other we should celebrate that and let them get married if they want to – love is love. We should celebrate it if people want to make commitments to one another…." [3]

I am not quoting this for a polemical purpose. Rather, this statement expresses well the second conception of marriage. In this, marriage is a relationship between any two people (who are adults and not close blood relatives) in which both partners have committed to love and care for each other while they are both alive. Such a relationship may be sexually expressed but there is no particular act of sexual intercourse which is needed to make it marriage. ‘Marriage B’ is constituted, then, by one of the two things that constitute ‘Marriage A’:

· the unambiguously voluntary or free consent of both partners to be united in marriage (given in the vows).

This second conception of marriage, ‘Marriage B’, can reasonably be called ‘voluntarist’. This label is not perfect, but it fits to the extent that such marriage has the single constitutive element of voluntariness or free will (voluntas, Latin: will).

2.10 Here is the second premise in the second syllogism set out above:

(ii) The law is wrong, not truthful, in saying that same-sex couples cannot have the good of marriage.

2.11 In terms of Marriage A, this premise is not true. This is simply because ‘marriage’ labels a certain kind of male-female sexual relationship. This means the premise is self-contradictory.

2.12 In terms of Marriage B, this premise is true because whether a couple is male-female or same-sex is irrelevant to what marriage is understood to be.

2.13 From this it follows that the argument from unjust discrimination for same-sex marriage has no bearing on Marriage A, the traditional conception of marriage. It is not a sound argument against this conception, because anyone who holds to this conception believes that one of its premises is false.

2.14 The argument from unjust discrimination holds only if Marriage B, the voluntarist conception, of marriage is already accepted.

2.15 But the Bill’s provision to introduce marriage for same-sex couples obviously rests on a conception of marriage that corresponds with Marriage B, in which sexual difference is not relevant.

2.16 This means that the argument from unjust discrimination is not logically sound as an argument against traditional marriage and for the Bill’s provision. This is because it assumes its conclusion in its premises, namely that ‘marriage’ is not necessarily a heterosexual relationship. The argument from unjust discrimination is convincing only for those who already assume what it is seeking to demonstrate.

2.17 Therefore it is not true that Marriage A, traditional marriage, discriminates against gay couples. To claim this rests on a category mistake.

2.18 Rather, in this conception, ‘marriage’ is simply the word that refers to a certain kind of male-female relationship. That there is a word in English (or any language) with this meaning in fact says nothing about same-sex relationships, whether positively, neutrally or negatively. That a word exists with this meaning is not discriminatory against anyone. It is simply referring to one particular, real category of relationships.

2.19 In deliberation about the current Bill, the argument from unjust discrimination cannot carry weight as an argument against traditional marriage and for the Bill’s provision for same-sex marriage.

2.20 It is really important that legislative change is not proposed or defended on the basis of logically fallacious arguments. I would like to ask, therefore, that Members of Parliament don’t appeal to this anti-discrimination argument in debate about same-sex marriage.

3. The Argument from the Principle of Equality

3.1 Also very prominent in the case for the Bill’s main provision is appeal to equality as a principle, as though this principle alone requires same-sex marriage.

3.2 The logical problem with the argument from equality can be put briefly. Appeal to equality is insufficient to justify support for same-sex marriage because equality doesn’t justify sameness – but sameness is what the proposal requires, namely, use in law of the same word. The argument from equality is like having a train ticket from London that will take you as far as Manchester when you want to get to Edinburgh.

3.3 Appeal to equality takes you as far as equal provision of justiciable rights for other-sex and same-sex couples, that is, to civil partnerships (regardless of whether this particular label is used).

3.4 But equality under the law does not require the same word to be used to refer to those who are thereby equal. The law can provide equally for men and women without requiring that they are all called ‘men’. The law can require that black and white people are treated equally even if they are not all called ‘black’.

3.5 Therefore, appeal to equality alone simply cannot carry weight in argument for the Bill’s provision that the same word, ‘marriage’ will be used for both straight and gay committed relationships.

3.6 I would like to ask Members of Parliament to avoid appealing only to equality in arguing for same-sex marriage, as the case for this requires a convincing argument for sameness. Thank you.

4. An Argument that Equality Contingently Requires Sameness as a Means

4.1 I have argued that appeal to equality is not a sufficient ground for support for same-sex marriage. However, there is a possible response. Accepting that appeal to equality alone can’t generate a cogent argument for sameness, the claim could be made that, on this issue at the present time, equality contingently requires sameness as a means. In other words, using the word ‘marriage’ for committed two-person relationships (regardless of gender) is, at the moment, an effective means of bringing about equality in practice.

4.2 The argument could go like this. The basic problem facing same-sex couples now (since 2005) is not inequality of justiciable rights but a difference in perceptions of the status, in law and culturally, of civil partnerships and marriage. Thus, civil partnerships are regarded, both by (some) people in them and many others, as of lower status than marriage, a kind of ‘second best’. [4] Even if the legal provisions for civil partnerships and marriage are as equivalent as the law can make them, the injustice for gay couples of being able to enjoy only a lower status relationship can be removed by making the same legal status, ‘marriage’, available to both other-sex and same-sex couples. In short: in current circumstances, equality requires sameness as a means.

4.3 This line of argument from equality is coherent in a way that an appeal that equality in principle requires same-sex marriage is not. However it faces a number of hurdles, among which I shall refer only to one, perhaps the highest. Before doing so, it is worth noting that, as this is an argument about means to achieve an end, it makes a claim about consequences. It rests on it being reasonable to judge that there’s a good prospect that acting on it will actually achieve the end of equal status.

4.4 Perhaps the highest hurdle this argument faces is, again, a logical problem, although not one that is decisive (unlike those outlined earlier). To show what this is, I need to refer back to the two conceptions of marriage distinguished earlier, Marriage A or traditional marriage, and Marriage B or voluntarist marriage. As traditional marriage is by definition heterosexual, the Bill’s provision for same-sex marriage must be premised on a voluntarist conception of marriage. This shows that the Bill will, in effect, change how the law conceives of marriage from a traditional to a voluntarist view.

4.5 This is a major change and, incidentally, I appeal to members of the Committee to acknowledge this.

4.6 The significance of this point for the argument just outlined – that equality requires the sameness of ‘marriage’ as a means – is this. While the Bill’s provision will achieve such sameness, i.e. in the word used, this will have been possible only by changing marriage into something different from what it has been until now. What the law will recognise will no longer be the traditional conception but will be the voluntarist conception of marriage.

4.7 The problem of logic here is this. Whereas the objective was to overcome a difference in perceptions of the status, in law and culturally, of civil partnerships and marriage by making the higher-status word ‘marriage’ usable in law for same-sex as well as other-sex partnerships, what this word will now refer to will have changed. It will not be marriage as traditionally understood. Given that what it will refer to will be different – voluntarist marriage – it is unknown whether, in the medium and long term, it will have the same status as it had before. In principle it could have higher, the same or lower status. But we don’t know.

4.8 However, as there is nothing inherently discriminatory, or wrong in other ways, with a language having a word for the category of relationship which ‘marriage’ has traditionally named, it is overwhelmingly likely that English will generate a substitute for this word. (One or two already exist, e.g. matrimony.) Given this, it is unlikely that changing what marriage refers to, in order to use sameness as a means of achieving equality, will prove to have this outcome.

5. Conclusion

5.1 The aim of this submission is limited. It is to appeal for logical rigour in the way arguments for same-sex marriage are made. In particular, it seeks to show that two of the most prominent lines of argument for the Bill, those from unjust discrimination and from the principle of equality, are, at least in the way many make them, logically flawed.

5.2 There are some other arguments for same-sex marriage. There is what is seen as the distinctively Conservative argument, an argument from social stability. I don’t comment on this, partly as I am not a Conservative and partly for lack of space. But I’d like to comment on an irony. The great insight that there is in (small ‘c’) conservatism is to do with political method. So far as possible, change – even radical change – should be made slowly and carefully, both so that we inadvertently avoid losing more than we gain, and so that people who are resistant to change can come to understand, or at least accept, it to some extent, so reducing the risks of cultural fragmentation and conflict (even ‘culture war’). It is partly in order to enable us to reap the benefits of conservative method that there are time-honoured processes of government, such as enquiries into fraught and divisive issues, green papers, white papers, etc. It is ironic that a Conservative-led government is handling the introduction of same-sex marriage in a way that is the opposite of conservative in method – simply passing over those normal parts of pre-legislative, governmental process and now rushing the Parliamentary process.

5.3 The issue of same-sex marriage is complex and difficult. In this submission I have touched on only a few of the issues it raises. To conclude I would like to make one more point.

5.4 I have shown that same-sex marriage is not required on the basis that traditional marriage is discriminatory against gay couples, or to achieve equality in law for gay couples. Granted these points, what is the Bill doing? It is legislation to change the meaning of a word – when there is nothing wrong with the existing meaning, nothing wrong with the fact that English has a word that refers to what ‘marriage’ has referred to. The Bill will alter the meanings of other words too, notably ‘wife’ and ‘husband’, which have until now always been correlative, like left and right, or heads and tails. For someone who identifies with the liberal political tradition, the use of State power to change what words with acceptable meanings refer to is very disturbing. This is illiberal legislation. Isn’t this clear?

5.5 Thank you for considering this submission.

March 2013


[1] This was published by the Kirby Laing Institute for Christian Ethics in Cambridge and can be accessed here: http://klice.co.uk/index.php/news (under ‘February).

[2] As these three syllogisms are formulated in the text, they assume that marriage is a ‘good’, something that benefits people. This would of course be challenged by some. But advocates of same-sex marriage tend to emphasise strongly what a good thing marriage is.

[3] Nick Clegg, at Nottingham Trent University, 13 Sep. 2012, accessed 29 Jan. 2013 at http://www.thisisnottingham.co.uk/s-question-time-Nick-Clegg-drops-meet-public/story-16902285-detail/story.html

[4] There are differences among advocates of same-sex marriage in Parliament on whether a claim that civil partnerships are currently perceived to be, in some sense, a second-best should have any place in argument for same-sex marriage. Nick Herbert MP has appealed to it in advocacy of same-sex marriage (see inter alia an interview in the London Evening Standard, 31 May 2012, in which he referred to civil partnerships as a ‘second order institution’). Chris Bryant MP appears to reject this line of argument (see exchange with Maria Miller MP in Public Bill Committee, 12 Feb. 2013).

Prepared 13th March 2013