Marriage (Same Sex Couples)

Submitted by Mr Stuart William Ramsay BA Hons (Oxon) (MB 78)

I am a student of moral philosophy, political science, political philosophy, and theological ethics, currently involved in Parliamentary politics.

1. Case law (Hyde v Hyde 1866) has defined marriage previously as the "voluntary union for life of one man and one woman to the exclusion of all"

2. Though the Bill before the Committee does not include within in it a substantive definition of marriage, it implicitly rejects the existing definition of marriage by the inclusion of same-sex couples. The statements made by the Secretary of State at Second Reading and in her Statement to the House suggest that the new definition is approximate to a declaration of love and commitment (c.f. "The depth of feeling, love and commitment between same-sex couples is no different from that depth of feeling between opposite-sex couples. The Bill enables society to recognise that commitment in the same way, too, through marriage." Rt Hon Maria Miller MP, Official Record, 5 Feb 2013 : Column 125)

3. I submit that conservative institutionalism suggests that marriage as it stands in law ought not to be altered.

4. Let us understand "conservative institutionalism" to be the claim that institutions matter, because (a) whilst we shape our institutions, they also shape us, through social norms and cues; and (b) much learning is (unconsciously) stored in institutions over time. Both sides of this debate accept the basic claim that institutions matter, because access to the legal and fiscal benefits of marriage, as well as the expression of commitment through civil partnerships, is seen to be insufficient. This can only be because marriage matters as an institution.

5. Conservative institutionalism (thus defined as the recognition of unconscious learning and cues stored in institutions) suggests that we ought to be attentive to how the the legal institution of marriage as it stands both grounds and encourages the norms which make it of value, such as fidelity, complementarity, and exclusivity.

6. The relevant social cues are expectations that the norms of marriage (such as fidelity, exclusivity, and having and raising children) will be fulfilled, and processes to facilitate such norms such as marriage preparation classes and marriage counselling.

7. There is good reason to suppose that the current norms and social cues surrounding the institution of marriage are a result of a number of factors including: (a) its theological underpinnings, which have heavily shaped the English law; and (b) the natural features of the current legal conception of marriage, such as sexual union and procreative-orientation.

8. The Bill recognises that, of necessity, concepts of adultery and consummation cannot apply to same-sex couples. Sexual fidelity and consummation arise as norms due to the natural features of marriage; however, the Bill recognises, in disapplying these concepts for same-sex couples, that these norms cannot apply without the presence of the natural features which underpin it. Moreover, the Bill therefore implies that these norms are not essential to the concept of marriage.

9. It is part of the nature of institutions that changing their essential features (what makes the institution what it is) will change the norms and social cues which surround it. Conservative institutionalism therefore suggests that the change in conception within law of what marriage is could alter the social cues and norms that currently underpin marriage as an institution.

10. The consequences of this could be reasonably expected to include the rejection of the norms of sexual fidelity and consummation as essential or important to marriage, and lack of support from social cues (e.g. within marriage preparation or marriage counselling) for such norms. In the long run, marriage could lose its social value and esteem as a result of the loss of these norms and social cues.

11. The reason for wishing to conserve marriage as a legal institution in its current form need not be conservation for its own sake. Rather, if the conception of marriage as it stands in law is (implicitly or explictly) redefined, we may lose the norms and social cues that assure its importance and value as an institution, and which are the very reasons for which the Secretary of State wishes to see marriage extended to same-sex couples.

February 2013

Prepared 4th March 2013