Marriage (Same Sex Couples)

Memorandum submitted by John Hudson (MB 48)

Submission for Marriage (Same Sex Couples) Bill 2012-13

I am writing as an individual who has been married for over 30 years. I do not represent an organisation , but have a special personal interest in encouraging and promoting marriage .

I am strongly opposed to marriage being redefined to include same sex couples. To be able to accommodate this Bill’s requirements, there needs to be massive changes in the way our society operates. Given the existing rights and responsibilities available with civil partnerships, this Bill is unnecessary and does little more than re-badge partnerships as marriage . Furthermore, the long held attributes of marriage, b oth in law and in tradition, will have to be radically altered. To accommodate the different requirements of same sex relationships, this Bill will dilute the whole raison d’être of marriage. Why should those who have already entered into the marriage covenant have their solemn commitment changed by this Bill?

I believe that the following matters should be taken into account by the Public Bill Committee in its detailed examination of the Bill :

1. This issue is about the long-held underlying principles of family, society and personal freedoms.  In this regard I should like to mention Wilkinson v Kitzinger (a Family Division Court case in 2006, EWHC 2022).  This was an application for a declaration of marital status under s55 of the Family Law Act where both parties were of the same sex and had been "married" under Canadian law. The petition was dismissed by Sir Mark Potter.

2. The unique capacity of a marriage of man and woman is to generate children. The possibility of children has long been the rationale for the state to support marriage. There are distinct advantages to the welfare of society and its individuals for children to be raised by their natural parents. If children are left out of the picture, is there a compelling reason for the state to support marriage? As Sir Mark Potter clearly stated, "the exercise of the right to marry gives rise to social, personal, and legal consequences."  From his judgement I think the following are particularly relevant in realising this Bill cannot work (all wording within quotation marks are taken from Sir Mark’s judgement):

2.1. "Marriage remains an institution which is widely accepted as conferring a particular status on those who enter it."

2.2. "It is apparent that the majority of people, or at least of governments, not only in England but Europe-wide, regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit (or "nuclear family") in which both maternal and paternal influences are available in respect of their nurture and upbringing."

2.3. "The belief that this form of relationship is the one which best encourages stability in a well regulated society is not a disreputable or outmoded notion based upon ideas of exclusivity, marginalisation, disapproval or discrimination against homosexuals or any other persons who by reason of their sexual orientation or for other reasons prefer to form a same-sex union."

2.4. Marriage has long been embedded in the common law.  Its definition of marriage is "the voluntary union for life of one man and one woman, to the exclusion of all others."  This definition has been consistently applied and acted upon by the courts.  "Marriage is an institution, or a relationship, deeply embedded in the religious and social culture of this country. It is deeply embedded as a relationship between two persons of the opposite sex."

2.5. Merely rebadging civil partnerships as marriage will not automatically give them the same potential attributes of fidelity and respect.  An individual civil partnership cannot become less transient or more permanent just because it is relabelled as a marriage.  As it already stands, civil partnerships have the potential of being just as economically secure and strong in relationship as marriage. "In 2004, in the course of the passage of the Civil Partnership Act, Parliament closely re-examined the complex problems involved if recognition were to be given to same-sex marriages. The solution which it reached was that there should be statutory recognition of a status and relationship closely modelled upon that of marriage which made available to civil partners essentially every material right and responsibility presently arising from marriage, with the exception of the form of ceremony and the actual name and status of marriage."

2.6. "Abiding single sex relationships are in no way inferior, nor does English law suggest that they are by according them recognition under the name of civil partnership. By passage of the CPA, United Kingdom law has moved to recognise the rights of individuals who wish to make a same sex commitment to one another. Parliament has not called partnerships between persons of the same-sex marriage, not because they are considered inferior to the institution of marriage but because, as a matter of objective fact and common understanding, as well as under the present definition of marriage in English law, and by recognition in European jurisprudence, they are indeed different."

2.7. Parliament decided that it was best to distinguish marriage and civil partnerships.  "There are express distinctions observed between the ceremonies and processes of the two institutions. In particular, civil partnership may not be effected on religious premises, or in a religious ceremony and civil partnership is an institution exclusively open to same-sex couples."

2.8. Sir Mark referred to a statement by Baroness Scotland, who, when introducing the second reading of the Civil Partnership Bill in the House of Lords, said that "it is important for us to be clear that we continue to support marriage and recognise that it is the surest foundation for opposite sex couples raising children…."

2.9. Introducing the concept of same-sex marriage would make Britain out of step with the rest of Europe.  This could create legal complications for the following reasons:

2.9.1. "To accord a same-sex relationship the title and status of marriage would be to fly in the face of the (European) Convention (of Human Rights) as well as to fail to recognise physical reality."

2.9.2. "Under the Strasbourg case law same-sex partners still do not fall within the scope of family life."

2.9.3. "The European Court of Human Rights has not yet recognised that the relationship between adult homosexuals amounts to family life. But then I know of no case in which it has recognised that the relationship between two unmarried adult heterosexuals amounts to family life. Family life has so far been confined to relationships between married couples and between parents or other relatives or carers and their children. "

3. Marriage is indeed the bedrock of our society, defined as it has been as the union of one man with one woman for life and is a concept understood by all.  I understand and agree with the creation of civil partnerships to give same sex couples legal rights and status in committed long term relationships.  What I do not agree with is to pretend that these are the same thing. Changing the definition of marriage is probably one the most significant decisions that a society can make. There would be a new legal culture that evolves over time that will have profound and incalculable consequences for family life and social relations in the UK. I am concerned that consequential changes will follow the redefinition of marriage that the Bill will either not foresee or do too little to protect:

4. There is a significant danger that same-sex marriage will complicate legal matters rather than simplify them.  Historically, UK law assumes the currently accepted definition of marriage.  As such, a marriage may end due to the unfaithfulness of either party. How can this Bill fully or practically define irretrievable break-down of a relationship, sexual union or adultery so that they apply to both same sex and heterosexual marriages?

5. What will be the impact of existing and future European legislation or courts?  For example, what has been described as a ‘quadruple lock' to ‘protect religious organisations' may not stand up in the European Court of Human Rights. One judgement of the European Court of Human Rights suggests that churches may be required to conduct same-sex marriages.  This case related to an adoption involving a lesbian couple from France, the Court confirmed that it was down to member states to determine marriage legislation – that same sex marriage is not a human right.  However, the judgement also noted that ‘where national legislation recognises registered partnerships between same sex, member states should aim to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a similar situation'.  This judgement is very significant as it suggests that, in a national legal context where heterosexual couples have the option of marrying in church, same-sex couples should be provided with a parallel opportunity.  Such rulings demonstrate that, if a member state decides to allow same-sex marriage, but treats homosexual married couples differently from heterosexual married couples, it could be challenged under European human rights law.  Legal experts have questioned the strength of the Government's assurance that with proper drafting ‘the chance of a successful legal challenge through domestic or European courts is negligible'.

6. In trying to be inclusive, how will this Bill protect the rights of those who could too easily be alienated and oppressed? Whilst I favour equal rights, there is the real, potential danger that a few aggrieved individuals get rights at the expense of others who wish to express their beliefs in a simple and unthreatening manner.

6.1. What safeguards will there be for the many faith groups, both Christian and otherwise, who do not support this Bill?  What will happen to those public servants or ministers of (any) religion who will not perform marriages for same sex couples?

6.2. What about implications that a redefinition may have for employers and employees, teachers and other public servants?  In recent years, there have been several legal cases that have put unhealthy restrictions on individuals expressing their right of real freedom of belief.

6.3. What will happen to the meaning of the words husband, wife, mother, father?  I understand that in Spain, following legislation, birth certificates now state the parents’ statuses as the equivalent of ‘progenitor 1’ and ‘progenitor 2’- how sad!

In conclusion, I believe there is no satisfactory way that this Bill can work to the overall benefit of our society. Therefore, it should be dropped.

February 2013

Prepared 27th February 2013