Marriage (Same Sex Couples)

Memorandum submitted by Daniel Moody (MB 87)

Summary: "Any redefinition of the legal institution of marriage will unavoidably entail a legal reconfiguration of what it means to be a parent. The legal understanding of parenthood will cease to have any link to the physical reality of parenthood. All children will lose the right to know their parents, and all parents will lose the right to know their children".

1. My name is Daniel Moody. I live in Dorset. I am a genius. As with all issues that I write about, I am happy for my statements on marriage to be judged according to their own internal logic. My statements can be misunderstood (and/or poorly articulated), but they cannot be refuted. My particular interest lies in revealing truth, in the nature of rights, and in the interplay between the natural world and the legal world.

2. I ask you kindly to observe that this submission makes appeal to neither religious belief nor moral evaluations of sexual behaviours. The marriage debate can be comprehensively understood in terms of a clash between the legal recognition of nature (harmony) and the legal denial of nature (legal fiction/disharmony).

3. This submission revolves around the issue of natural rights, and the fact that any redefinition of the legal institution of marriage necessarily entails changing the legal understanding of parenthood - away from a (passive) acceptance of parenthood (legal protection of biological parenthood), into an (active) assignation of parenthood (no legal protection of biological parenthood).

4. This change translates as a loss of legal protection of natural rights for all children and all parents. All biological parents will have their legal parental status downgraded to the level of foster parent. This phenomenon has been well explained and documented by – among others – Professor Margaret Somerville (McGill University, Montreal) (i) and Dr Jennifer Roback Morse (Ruth Institute, U.S) (ii). Both reach the (correct) conclusion that, where the legal institution of marriage is redefined, the exception (a legal assignation of parenthood [adoption]) becomes the legal norm for all children.

5. In order to become aware of the origins of this phenomenon, three things are required: a) an understanding of the nature of rights; b) an understanding of the nature of marriage; c) an awareness of international and domestic law, with regard to the rights applicable to a marriage.

6. a) Rights: the U.S. Declaration of Independence, the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR) were all written according to an understanding of rights usually known as Natural Law. This is the simple acceptance that, as humans, we have certain rights that reside at the level of our bodies. These rights are unalienable. The State can neither create them nor destroy them. Instead, the State can either protect them or deny them. Legal human rights are not active permissions granted by the State. Instead, they are passive protections guaranteed by the State. For instance, the right to own property does not translate as "we, the State, permit you to own property". Instead, it translates as "we, the State, will ensure that nobody prevents you from owning property".

7. b) Marriage: the definition of marriage represents three different things.

8. b1): natural marriage. We do not need State permission to form a life-long sexual union with one person of the equal and opposite sex. Men and women have been forming this relationship since men and women existed. The definition of a marriage accords with a natural state, and as such cannot be redefined. This is what people mean when they say that marriage is instituted by God. Substitute God for Evolution, and we have the same outcome: the fact that we have two sexes allows for the possibility of procreation and, in turn, parenthood. Marriage exists because men and women are physically different. The purpose of this natural relationship is to bind procreation to parenthood.

9. b2): natural parenthood. The human body is itself a union of two other bodies – one male and one female. When new life comes into the world, the two adults who create that new life not only become permanently and exclusively linked to the body of their child – they also become permanently and exclusively linked to each other, through the body of their child. The parameters of a marriage are identical to the parameters of the parenthood – permanence, heterosexuality (both sexes), and exclusivity (two people).

10. This phenomenon (of two different things sharing a common definition) is called Relationality - the state of existing in relation to a relationship. Marriage is "two adults in relation to one another", and parenthood is "those same two adults, but in relation to their children". Parenthood exists in relation to the relationship of marriage. Parenthood is a relationality of marriage. The reason the two different relationships have the same definition is that only one thing separates them – time. This is why international and domestic law gives marriage as a compound right: the right to marry and to found a family (see paragraph 13). As with natural marriage, parenthood is a natural state, and as such cannot be redefined.

11. b3): the legal institution of marriage. Unlike marriage and parenthood, the legal institution does not represent a physical reality. As a man-made construct, it can be redefined. The legal institution came into existence solely to allow for the legal recognition (protection), regulation and reward of natural marriages. The purpose of a natural marriage is to bind procreation to parenthood. The purpose of the legal institution of marriage is to protect the natural rights inherent to natural marriage. This can be illustrated quite clearly by observing the fact that, were the State to abolish the legal institution, men and women would continue to marry (form the relationship). Some say marriage cannot be redefined. Some say marriage can be redefined. Both are wrong, and both are right.

12. While not every natural marriage will produce children, all children produce parents – one man and one woman. Natural marriage is the only relationship that needs legal recognition, as it is the only relationship that can ever result in the creation of children (who then have natural rights in relation to their parents) and parents (who then have natural rights in relation to their children and to each other). The only legal definition that can protect these rights is the definition that accords with the physical realities of marriage and parenthood. A call to protect the rights is simultaneously a call to protect the definition.

13. c) Law: UDHR (article 16), the International Covenant on Civil and Political Rights (article 23) and ECHR (article 12) all give marriage as a compound right: the right to marry and to found a family (iii). We in England and Wales are tied to the ECHR via the Human Rights Act 1998. Understood as written (in terms of Natural Law), the legal protection of the right to marry and to found a family translates as "We, the State, will ensure that nobody prevents men and women from forming the relationship of marriage and, we, the State, will ensure that nobody prevents a marriage from founding a family". If, for whatever reason, a marriage cannot found a family, the State has no further obligation, since it has already protected the right of the particular man and woman to form the relationship of marriage.

14. Since physical reality can only ever be defined correctly in one way, any redefinition of the legal institution of marriage would necessarily leave a definition that does not accord with the natural definition of parenthood. But, crucially, we would be retaining the compound right to found a family. The new definition, in conjunction with the old context, results in a legal reconfiguration of what it means to be a parent. The only way to prevent the loss of legal protection of natural rights is to first amend the UDHR/ECHR, etc – something that nobody is seeking to do. I would not want them to, as the UDHR/ECHR already defines the rights of marriage correctly.

15. Where the definition of the legal institution of marriage no longer accords with the physical realities of marriage and parenthood, man-made law has a definition of parenthood that does not accord with nature. To grant the right to found a family to any combination of two adults is to create a right that does not occur in nature.

16. It is important to realise that this legal transformation of parental status flows directly from the redefinition of marriage. It is the one consequence that cannot not happen. The continuing legal protection of natural rights is MUTUALLY EXCLUSIVE to any redefinition of the legal institution of marriage. A good way to demonstrate this is to look at the other elements that make up the definition of a marriage, and to see that a change to any one of those elements would also result in the loss of natural rights. A natural marriage is sexual, permanent, heterosexual (containing both sexes) and exclusive (containing only two people). The debate wrongly focuses on the question of whether marriage is necessarily heterosexual. If the State were to propose, for example, three-person marriages (while retaining the right to found a family), the State would be talking about a form of legal parenthood that does not accord with biology. Equally, were the State to propose impermanent marriage (which is not the same as allowing divorce), the State would be declaring that parenthood was impermanent. This, too, would be a legal understanding of parenthood that does not accord with biology.

17. It is impossible to redefine the legal institution of marriage without redefining the legal understanding of parenthood. In doing so, we will be removing from all children and all parents – of this generation and all generations to come - the right to have the physical reality of their relationship respected (protected) in law. This is a peculiar concept to grasp, as it entails differentiating between the legal world and the natural world. In the legal world, every parent would have had their blood rights sold and exchanged for purely legal rights. But because the change takes place in the legal world, nobody feels a thing in the natural world. This is why the phenomenon has gone largely undetected.

18. To conclude by way of an analogy: imagine two stacks of house bricks – one four feet high, the other five feet high. In the context of their substance (bricks), the stacks are equal. In the context of their height, they are unequal. Since the four feet stack is not five feet high - but since the five feet stack is in fact also four feet high - the only way to declare them to be of equal height is to declare them both to be four feet high. By ignoring the superior foot, an illusion of equality has been created. The four feet high stack is still only four feet high, and is correctly regarded as being four feet high. The five feet high stack is still five feet high but is now incorrectly regarded as being four feet high. Nobody has gained anything, but the five feet stack is now regarded as being less than it actually is. The enterprise is wholly destructive.

19. In the context of their substance (people), all relationships are the same since all people are of equal dignity. In the context of founding a family (the context provided by international and domestic law) a natural marriage is "higher" than all other relationships, since it is the only combination of people who can be physically related to a child – one man and one woman. Since no other combination of two people can be physically related to a child, the only way to declare all combinations of two people to be of equal "height" is to declare them all to be physically unrelated to a child. Natural marriages (one man and one woman) are still physically related to their child, but are now incorrectly regarded as being less than they actually are. The enterprise is wholly destructive.

20. Where the legal institution of marriage has been redefined, the right to found a family has been granted to any two adults. This is not a right found in nature. Parenthood has been transformed, for everybody, into a purely legal concept. The cost of creating this legal fiction has been the legal denial of protection of natural right of all parents and all children. This is most clearly evident in Canada, where the phrase "Natural Parent" was previously in legal use. Upon redefining the legal institution, the phrase was replaced with the phrase "Legal Parent" (iv). Similarly, the legal redefinition of parenthood has made it possible to legally jettison the terms Father and Mother.

February 2013

For your reference:

(i) Professor Margaret Somerville - http://www.theaustralian.com.au/opinion/its-all-about-the-children-not-selfish-adults/story-e6frg6zo-1226099613917

(ii) Dr Jennifer Roback Morse –

http://www.marriagelibrary.org/2011/02/dr-morse%E2%80%99s-testimony-to-the-rhode-island-legislature-regarding-same-sex-marriage/

(iii) ECHR –

http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/Convention_ENG.pdf

(iv) Bill C-38 The Civil Marriage Act (Canada) - http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=c38&Parl=38&Ses=1

Prepared 6th March 2013