Marriage (Same Sex Couples)

Memorandum submitted by Canon Nicholas Anthony Turner (MB 64)

SUMMARY

Uniformity between opposite-sex and same-sex couples is at the heart of what is meant by Equal Marriage. Schedule 4, however, acknowledges legal distinctions between the two types. These in time will have to be removed by legislation. This inevitable revision will undermine the assurances given to churches and religious groups. In other words, the good intentions of the Bill will be undermined by the unintended consequences of Schedule 4.

AUTHOR

I am a Church of England Rector, and Canon Theologian of St Helena. I have studied closely all the relevant legislation, from the Civil Partnership Act through the Gender Recognition Act to the Equality Act, and have written at some length on these subjects in various national and regional magazines.

I have expressed in print my support for gay marriage since 2004, but I have had many concerns with the unintended consequences of the actual pieces of legislation. If the Civil Partnership Bill was too detailed [e.g. 50.1.c], this Bill is not detailed enough. I do not speak on behalf of anyone else, but I do hope that my suggestions are helpful.

SUBMISSION

1 The purpose of the Bill is to make marriage equal between opposite-sex and same-sex couples; i.e. not to introduce a separate and distinct form of same-sex marriage.

2 The need for uniformity has been increased by the rejection of civil partnerships for opposite-sex couples (not part of this Bill, but part of the consultation leading up to it). This means that any rights and advantages available to civil partners should, as a matter of equality, also be available to opposite-sex equal-marriage couples.

3 Equal-marriage for same-sex couples should offer the same rights and advantages as do civil partnerships. Just as equal-marriage for opposite-sex couples should offer the same rights and advantages as equal-marriage for same-sex couples. In a few small but significant instances, this does not appear to be the case.

4 Schedule 4 takes account of the legal differences between opposite-sex and same-sex equal marriages. In particular, adultery and consummation will continue to be understood only in their current legal forms. The ‘common law presumption’ seems to me a more interesting distinction, as it has consequences for a third party, namely the child, but I confess I have insufficient understanding of this particular point.

5 Therefore, it is inevitable that further legislation will be needed fully to establish the central purpose of this Bill, namely the uniformity of equal-marriage. It is not complete in itself, but only a (major) stage in a longer process of legislation.

6 The present Bill, in other words, presupposes [the term is a little loaded, but I cannot think of a better one] a further Bill to remove the precisely sexual elements embedded in the current understanding of marriage – adultery and consummation (and the implications of common law presumption?) – which separate opposite-sex from same-sex unions.

7 Even if no problems reveal themselves in the Courts (to whom the Government has left the responsibility for dealing with the implications of Schedule 4) this formal legal distinction between the two forms of equal-marriage is an impediment to the full expression of the proposed new law.

8 The principal and unintended consequence, of the fact that this Bill is not the last word, is that the promise of protection to religious groups becomes merely temporary. Most of the Bill is taken up with providing the ‘quadruple locks’ and other protections of conscience. Much of the protection is, necessarily, by way of ad hoc exceptions – Clause 1.3 and 2.5, to take two obvious examples. They are not general principles but specific exceptions.

9 Specific exceptions, especially when expressed in complex legal language and by reference to other Parliamentary Acts, are not as secure in the long term, as general principles which can be understood in broad and popular terms.

10 An appeal to natural justice can survive over decades, even centuries, long after the precise wording has become redundant or obscure. An appeal to a precise exception to a particular part of another Act simply does not carry the same long-term moral weight.

11 Put in other terms: the necessary uniformity expressed in the term Equal Marriage is left incomplete by the existence of Schedule 4. The subsequent legislative revision of the content of this Schedule undermines, I would argue, the protections provided for churches and other religious groups.

12 My own suggestion would be to remove at this stage, from Schedule 4, at least Parts Two and Three so as to establish manifest equality as soon as possible, and thus to pass on as few anomalies as possible to future sessions of Parliament.

13 There is one other anomaly that should be considered along with those above, relating to Clause 9. [I am relying on the Government Response of December 2012 as well as the Bill itself.] An opposite-sex couple cannot establish their marriage except by performative utterances, i.e. using words provided by the State. In popular terms they must make precise and public vows.

14 Same-sex couples can be married without having to exchange any vows at all: they can be married, in other words, without any content being imposed upon them from outside. Though not specified in the Bill, the conversion process from civil partnership to marriage does not require the use of words – any vows are entirely optional [6.13 Response].

15 Whether couples should or should not avail themselves of this option is not the point. The fact is same-sex couples will have this right in equal-marriage and opposite-sex couples will not.

February 2013

Prepared 27th February 2013