Marriage (Same Sex Couples)

Memorandum submitted by Emeritus Professor James H. Grayson (MB 31)

1. Submitted by Emeritus Professor James H. Grayson, Ph.D.

2. Introduction

I write as an anthropologist, retired university lecturer, and an ordained minister of the Methodist Church in Britain. My comments are my own personal views and should not be construed to reflect the views of any organisation with which I am currently associated, or have been associated.

My concerns with the legislation as presently formulated are not principally concerned with its effects on the performance of religious rituals connected with marriage.

My concerns are principally about the effect of this legislation as presently formulated on society and free speech if it were to be made law without appropriate amendment.

3. Summary of Concerns

Examination of the proposed legislation indicates that the following three issues are not referred to in it:

a. Legal rationale. There is no legal rationale provided for extending the meaning of the term ‘marriage’ to encompass same-sex partners given the existence of ‘civil partnerships’ which confer the same legal rights and protections as marriage.

b. Definition of ‘marriage’. The proposed legislation as presently formulated does not provide any definition of ‘marriage’, yet it is clear that the inclusion of legalised same-sex relations within the definition of ‘marriage’ will alter profoundly the institution as it has been understood historically.

c. Legal Protection. Although the legislation as presently formulated spends considerable time on the issue of protecting the right of the Church of England not to perform ‘same-sex marriages’, there is no protection provided for persons in the public sphere to hold, affirm and teach the traditional understanding of marriage. This issue is closely connected with item 3.b. stated above.

The bill would appear essentially to be an emendation of the existing legislation on marriage which has not taken into appropriate consideration the implied change in the meaning of the term ‘marriage’, and its effect on people who hold a traditional understanding of marriage.

4. Definition of Marriage.

a. Universality of the Institution. Marriage is a world-wide, historic institution which has been imbedded in the social life of all cultures for millennia. It is not specifically a religious institution although all major religions support the institution by providing ritual formalisation of the practice, and a theological or religious understanding of it.

b. Character and Purpose of the Institution. Anthropologically, marriage has been defined as ‘a legally and socially sanctioned union between one or more husbands and one or more wives that accords status to their offspring and is regulated by laws, rules, customs, beliefs and attitudes that prescribe the rights and duties of the partners.’ (The New Encyclopeadia Britannica (1991), v 7, p. 871). This definition, which may be taken to be typical of the anthropological understanding of the nature of ‘marriage, indicates that the pan-human institution of marriage is founded upon a relationship between a man and a woman essentially for the procreation and upbringing of children within the context of a unit – the family – which is sanctioned by law and custom. Marriage is thus rooted in the family as the core institution of society.

Marriage exists in a wide range of forms – monogamy (single partners of each sex), polygamy (single husband, multiple wives), polyandry (single wife, multiple husbands), and is set within an equally wide range of family descent structures – patrilineal, matrilineal, bi-lateral, and so on. The key point is that whatever the specific features of marriage in different societies are, it is a physical and social union between male and female. No contemporary or historical society of which I am aware has or has had an institution of formalised same-sex relations which is or was seen to be equivalent to or part of the institution of marriage.

5. Effect of the Absence of a Definition of Marriage.

a. The absence of any definition of marriage in the proposed legislation implies that the inclusion of same-sex relations within ‘marriage’ is solely a matter of the extension of the use of the term to cover an equivalent institution or relationship. Clearly for a substantial number of people this would not be the case.

b. If this bill is passed without specific and precise legal protection being included for people who hold the view that marriage is only a relationship between a man and a woman, there is a clear possibility for people to be prosecuted, disciplined or stigmatised for holding this view.

As the bill would make it legal to say that same-sex unions are marriage, to say the opposite would be contrary to law. Anyone in a public office who continues to hold and state publicly the traditional and historic view of marriage as the definition of ‘marriage’ could be subject to punishment or harrassment.

c. Three Examples.

1) If after passage of the bill, a teacher in a sex education class were to state that it was his/her opinion that only male-female relations are the basis of a marriage, the new law would provide a legal basis for them to be disciplined by school authorities or perhaps even to be taken to court. The proposed legislation as presently formulated provides no protection for such a teacher.

2) If after the passage of the bill, a university lecturer in anthropology (as I was before retirement) states in classes on ‘Marriage and the Family’ that male-female relations are the basis of a marriage, the new law again would provide a legal basis for them to be disciplined by the university administration, or taken to court, or subject to a campaign against their ‘bigotry’. The proposed legislation as presently formulated provides no protection for such a lecturer.

3) If after the passage of the bill, a registrar refuses on reasons of conscience to conduct a same-sex marriage, the bill will provide a specific, legally sanctioned reason for dismissing them or subjecting them to some form of punishment. The proposed legislation as presently formulated provides no protection for such an official.

6. Effect on Terminology Associated with Marriage.

As a universal and historic social institution, a rich vocabulary associated with marriage has been developed in every society over many centuries. Inevitably and because of the changes in practice which will be made, this bill would force changes in the definition and use (social and legal) of this vocabulary. Currently the phrasing in the proposed legislation does not appear to be sufficiently strong enough in protecting traditional usage. Two examples are:

a) ‘Husband’ and ‘wife’. The latter term literally means ‘woman’, and the former is a metaphor for a male. If a law is passed recognising same-sex relations as ‘marriage’, will the use of these terms in formal records of birth, marriage and death be eliminated either by law or administrative fiat? It is important to preserve the universally accepted definitions of these terms in order to preserve continuity in understanding to what is being referred. Although this issue is a matter of general concern, it is a particular concern for scholars in the areas of law, history and anthropology.

b) ‘Father’ and ‘mother’. Again, these terms have always referred to male and female respectively, except when used in a metaphorical sense. If same-sex relations are recognised as ‘marriage’, will the use of these terms on formal documents such as birth and marriage records be forbidden or eliminated? Again, this issue is a particular concern for scholars in the areas of law, history and anthropology.

7. Objections Made by Proponents of the Bill

Proponents of the bill broadly have argued in its favour by saying that:

a) marital relations (marriage) are to be defined as ‘a loving sexual relation between partners’, and

b) objections to the bill are examples of ‘bigotry’.

8. Response to These Objections.

a) If marriage is to be defined solely or principally as ‘a loving sexual relation between partners’, such a definition could be used to promote or provide support for practices which have never been acceptable in Britain, such as polygamy, bigamy or incest.

Unless a strong definition of marriage is provided in the legislation, the un-amended law could undermine both the institution of monogamous marriage and intra-familial relationships. Marriage is the central building block of the family and legislation should not even inadvertently undermine it.

b) Some proponents of the bill have asserted that opposition to it is bigotry. It cannot be the case that the affirmation of the understanding of marriage as understood historically and universally can be the basis for legal prosecution, discipline in the work place, or social stigmatisation.

As there are strong views on both sides of this issue, it is imperative that those people (teachers, lecturers and others) who hold, affirm and teach the traditional understanding of marriage are not made subject to prosecution, discipline or harassment.

10. Suggestions for Emendations.

a) The legislation must be emended to include a clear definition of marriage.

b) Persons who hold, affirm and teach the traditional view of marriage as a formalised relationship between a man and a woman could be protected by the addition of a clause along the lines of:

‘Regarding the provisions of the law as laid out above, nothing in this law shall infringe on the right of persons in positions of public responsibility to express views contrary to it, nor shall such persons be subject to prosecution or persecution for holding such views’.

Protection of the right of free speech is the cornerstone of a free and democratic society. Unless the proposed legislation includes protection for persons to hold and teach views supporting traditional concepts of marriage, it will undermine this basic freedom.

February 2013

Prepared 27th February 2013