Marriage (Same Sex Couples)

Memorandum submitted by Donald Fleming

(MB 135)

I respond to this Bill as an individual. Please note the following points:

1. Historic change to a socially vital institution

Marriage has been defined as being between a man and a woman since time immemorial. Therefore to redefine this institution is a historic step and requires to be approached in a democratic and thoughtful manner, mindful of implications for the nation as a whole. Sadly, this is not reflected in the way the Marriage (Same Sex Couples) Bill has been introduced.

2. No democratic mandate

The way that the Bill has been introduced has no regard for the democratic process. There was no manifesto commitment to redefine marriage. The Conservative Contract for Equalities refers to same-sex marriage but does not hold to the idea of introducing it.1 Moreover, the Conservative Contract for Equalities was published well after postal voting had begun and does not amount to a manifesto commitment. Furthermore, the Government’s proposals were not laid down in a Green Paper or a White Paper. Neither were they included in the Queen’s Speech. Thus, even someone who supports the concept of same-sex marriage should vote against this Bill on the grounds that it breaches this nation’s democratic traditions. There is no reason why it could not be included in in one of the main parties’ manifesto at the next General Election.

3. False reasoning that same sex marriage will benefit society

The reasoning behind redefining marriage is based on two assumptions: 1) Research suggests that marriage benefits both adults and children; and 2) If marriage is redefined to expand the number of married couples, logically, this should increase the benefit to society.

4. The first assumption is true. However, the second is false in that it is based on the reasoning that if the nature of marriage is radically altered, the existing benefits will remain unaltered. This is contradicted by practical experience: In the Netherlands and Spain, since same-sex marriage was introduced, marriage rates across these countries’ populations has fallen.2&3

5. False reasoning that marriage must be redefined to ensure equality

In civil partnerships, Gay couples already have, in legal terms, equal rights compared to married couples; therefore, it is completely unnecessary to take risks with a socially vital institution – i.e., marriage – by redefining it.

6. Same-sex marriage is not equal-marriage

The Bill proposes that the law of adultery will apply to different-sex couples but not to same-sex couples. Thus a situation will be created in which the faithfulness and commitment obligations of a marriage between a man and a woman would be greater than in a marriage between a same-sex

couple. It, therefore, follows that if the marriage relationship obligations are different then the relationship is different and must logically be categorised differently. It has been suggested that this is unsustainable and that adultery will – in practice – cease to inform marriage for heterosexual couples. This demonstrates how redefining marriage for a few has the effect of redefining it for the many, and crucially, with respect to its central faithfulness and commitment characteristic. 4

7. Financial Implications deriving from the Bill

The Bi l l pr o p o s es t h a t c i vil p a r t ne r s h i ps s h o u l d o n l y b e m a d e a vai l a b le t o s a m e - s e x c o u p le s . Th i s is c o m p l e t e l y u ns u s t a i n a b l e. Given the recent history of heterosexual couples going to court seeking civil partnerships, this will result in further litigation, which in terms of the concept of equality is likely to be successful – and expensive. In 2 01 0 Sto newa l l es t i m a t ed t h a t o v er a t en y e a r pe r i o d t he fi n a n c i a l c o s t t o t h e t ax p a y e r o f rede f i n i n g m a rri ag e a n d c i v i l p a r t n e r s h i ps w o u l d be £5 billion.5 Although the Government maintains that legislating same-sex marriage will be relatively inexpensive, when legal challenges under equality laws necessitate the introduction of heterosexual civil partnerships, the costs deriving from the Bill will significantly increase. This is important at a time when we all face Government cutbacks.

8. Churches

Ai d an O’Nei l l QC a d vi s es t h a t t he p a rt o f t he Bi l l t h a t e n s ures t h a t An g l i c a n Ch u rc h es s h o u l d n o t h a ve t o m ar r y s a m e s ex c o u p les wi l l be c h a l le ng eab l e a n d a lmos t cert a i n ly le g a l ly u n s u s t a i n a b l e in l ig ht o f t he f a ct t h a t t he An g l i c a n Ch u rch h a s an o b l i g a t i o n t o m ar r y a n y p r esen t i n g c o u p le. W i t h res p ect t o n o n - An g l i c a n c h urc h es, he s u gg es t s t h a t t he i r p o s i t i o n in rela t i o n t o t he Euro p e a n C o urt o f Hu m a n Ri g h t s is a b i t mo re s ecu r e n o w b u t m ay n o t be f o r m u ch l o n g er if ot h e r c o u nt ries i n t r o d u ce s a m e - s ex m a r ri ag e . He s u gg es t s t h a t t he i r mo r e i mm ed i a t e p r o b l em is t h a t t hey a re at ri s k o f l os i n g t he i r l i c en s e t o m a r r y , as l o c a l a ut h o ri t ies c o n c l u de t h at l i cen s i n g c h urc h es t o m ar r y t h a t wi l l n o t m ar r y s a m e - s ex c o u p les is n o t t he be s t way o f d is c h ar g i n g t heir P u b l ic S ec to r Du t y and S ec t i o n 1 4 9 Equ a l it y A ct 2 01 0 o b l i g a t i o n s . 6

9. Employment

The G o v e r n m ent h a s s u gg e s t ed t h a t t he r e a r e no em p l o yment c o n c e rns a n d m a d e m u c h o f t he fact t h a t A d ri a n Sm i t h, who was de mot ed by T r aff o rd Ho us i n g T r u s t for e x p res s i n g c o n c e r ns a bo ut t he re d e f i n i t i o n o f m ar r i ag e o n a priva t e F a c eb oo k p ag e, a c t u a l l y w o n h i s c as e. As t he Ai d an O’Nei l l Q C le g al o p i n io n m akes p l a i n, h o we v e r , t he c as e was b as ed o n a ‘c om m o n l a w brea c h o f c o n t ra ct c l a i m a n d T r a f ford Ho us i n g T ru s t is n o t a p u b l i c a ut h o ri t y, s u b ject t o t he P u b l i c S ec to r D ut y o r S ec t i o n 1 4 9 o f t he E q u a l i t y Ac t . W h a t is a ct u a l l y s i g n i fi c a n t a bo ut t h i s c as e is t h a t it was br o u g ht e v en b e fore t he l a w was c h a ng ed a nd t h a t de s p it e t he d ist ress c a u s ed he was o n l y a war de d £100 compensation.7

U n d er t he M a rri a g e ( S a m e S ex C o u p le s ) Bi l l t he r e is no em p l o yment pr ot ec t i o n for army c h a p l a i n s a n d N H S chaplains . I f a chaplai n w a s t o p r e ac h o n ma rr iag e an d s a y tha t sam e se x ma rr iag e w a s cont r a r y t o sc r iptu re a n d t he p u b l ic a ut h o ri t y em p l o yi n g t hem d is c o v e red t h i s t hen t he p u b l ic a ut h o ri t y, m i n d ful o f t he p u b l ic s ec to r d ut y , c o u l d dec i de t o s a c k t he m .8 A s i m i l ar s i t u at i o n w o u l d a p p l y for t eac h e r s . The D a i l y T ele g r a ph rep o r t s t h a t a s en io r so urce in t he Dep a r tm ent for Ed u c at i o n s a i d t h a t

t he U K G o v e r n m ent m ay be p o we r l ess t o s to p t eac h e r s a n d ot her st aff who h o ld t ra d i t i o n a l views o n m ar r i a g e g e tt i n g s a c ked for r e fu s i n g t o p r omot e s a m e - s ex m a rri ag e at w o rk. T h e so urce s a i d t h a t t he u lt i m a t e dec is i o n m i g ht "inevi t a b ly" b e t aken at t he Euro p ean C o urt o f Hu m a n Ri g h t s in S t ra s b o ur g . He ad d ed: " The s e a re a l l u n d er t he c o n t r o l o f n i ne g uys in St ra s b o ur g , it is ju s t f u n d am en t a l ly u n cert a in bec a u s e B ri t a i n is n’t in c o n t r o l o f t h is . "9

March 2013

1 http://www.conservatives.com/News/News_stories/2010/05/Our_contract_for_equality.asp

2 http://www.marriagedebate.com/pdf/iMAPP.May2011-rev.pdf

3 An Introductory Course in MATLAB, published by Universidad Carlos 11 De Madrid, September 2010, Alba, M. Franco - Pereira

4 http://www.telegraph.co.uk/news/politics/9827596/Gay-marriage-bill-opens-door-to-abolition-of-adultery.html

5 h t tp : / / w w w . p i n k n e w s .co. u k / 201 0 / 0 9/2 4 / 5 - b il l io n -m ar r ia g e -e qu ali t y - f igu r e - w a s - calc u la t e d - by -s t o n ew all/

6 Aidan O N e il Legal op i n ion p ara 5

7 I b id p ara 3.7.

8 I b id p ara 3.

9 h t tp : / / w w w .t e l e gra ph .co. u k / n ew s / p olitic s /98 2 534 1 / G o ve r n me n t - p o w e rl es s - t o - p r o tect - t e ac h e r s - f r o m -s ac k - o v e r- ga y -

m arriage. h t m l

Prepared 13th March 2013