Marriage (Same Sex Couples)

Memorandum submitted by Family Education Trust (MB 91)

Summary

· We are not persuaded that the Bill achieves the government’s objective of putting same-sex marriage ‘on an equal footing with opposite sex marriage’.

· The fact that the Bill views consummation and adultery as exclusively heterosexual concepts is a tacit recognition of the fact that there is not, nor ever can be, parity between the marriage of a man and woman on the one hand and same-sex partnerships on the other.

· Under the government’s proposals, opposite sex couples would be deprived of an institution that has belonged exclusively to them from time immemorial , while same-sex couples who want to signify their commitment w ould be able to choose between a marriage or a civil partnership.

· The Bill provides no protection for a wide range of individual service providers and charitable organisations which could not in good conscience treat same-sex marriage on a par with marriage between a man and a woman.

· There are legitimate concerns that the present legislative proposals to redefine marriage could logically lead to further redefinition.

· The Bill reflects the government’s failure to adequately consider the meaning and purpose of marriage and the reasons for which the state has a legitimate interest in the institution.

· The effect of the Bill would be to enshrine in law a view of marriage that threatens to reduce it to an emotional bond and erode the norms of permanence and sexual exclusivity.

· The Bill carries serious and far-reaching implications for the school curriculum and for teaching staff in both primary and secondary schools.

· Teachers with a conscientious objection to same-sex marriage would not be in a position to teach ‘the nature’ of same-sex marriage, nor that it were equal to opposite sex marriage in terms of its ‘importance for family life’.

· The public bill committee should give careful consideration to the advice provided to the Coalition for Marriage by John Bowers QC.

1. Introduction

1.1 For over forty years, Family Education Trust has conducted research into the causes and consequences of family breakdown. By means of its publications and conferences, and through its media profile, the Trust seeks to stimulate informed public debate on matters affecting the family and the welfare of children and young people, based on reputable research findings.

1.2 Family Education Trust is a registered charity and has no religious or political affiliations.

2. The question of equality

2.1 According to the explanatory notes attached to the Marriage (Same Sex Couples) Bill, the government’s overriding motivation is ‘to put same sex marriage on an equal footing with opposite sex marriage’. [1] However, we are not persuaded that the Bill achieves this objective and, in view of the fundamental differences between same-sex and opposite-sex relationships, we question whether the government’s objectives are achievable.

2.2 Quite apart from the biological inequity that prevents two men or two women from producing a child, the legislative proposals highlight several other key differences between marriage as we know it and the institution the government plans to put in place for same-sex couples. F or example , u nder section 12 of the Matrimonial Causes Act 1973, a marriage is voidable if it has not been consummated either due to incapacity or wilful refusal. However, the present Bill states that these provisions do ‘not apply to the marriage of a same sex couple’. [2]

2.3 The proposed law also recognises a significant difference between opposite sex marriage and same-sex unions when it comes to adultery. According to the Bill, only conduct with ‘a person of the opposite sex may constitute adultery’ in divorce proceedings. [3] In other words, adultery is a purely heterosexual concept and the government proposes to exclude from the law the very possibility of committing adultery with someone of the same sex.

2.4 Under the government’s proposals, same-sex couples who want to signify their commitment would have a choice: they could enter a newly-created genderless version of marriage or they could register a civil partnership, which would remain available exclusively to same-sex couples. But for opposite sex couples – the overwhelming majority of couples – there would no longer be an exclusive institution.

2.5 The effect of this would be to rob opposite sex couples of an institution that has belonged exclusively to them from time immemorial, while preserving for same-sex couples an institution that is uniquely their own in the form of civil partnerships.

2.6 T he government states that the purpose of th e Bill is to remove the so-called ‘unfairness of same-sex couples being excluded from marriage’ [4] . However, t he government appears indifferent to the fact that its proposals result in the unfairness’ of preserving an institution solely for same-sex couples.

2.7 T he amount of space the Bill devote s to the ‘quadruple lock’ suggests that the government views marriage as no more than a ceremony and imagines that, provided safeguards are in place to prevent ministers of religion being forced to conduct same-sex weddings in their places of worship, then every possible objection will evaporate. This, however, would be naïve . M arriage is far more than a ceremony and the implications of what the government is proposing extend far beyond the doors of any place of religious worship.

2.8 We are concerned that i n its pursuit of a misguided notion of equality for the relatively small number of same-sex couples who want to marry, the government risks creating a whole host of real inequalities that would threaten the liberties and livelihoods of others.

2.9 Major doubts remain concerning the validity of the government’s assurances to faith groups, [5] but even if we could have cast-iron guarantees that the promised protections are watertight, they provide no comfort at all to ordinary people in the course of their everyday lives.

2.10 A priest, minister, rabbi or imam may be able to refuse a marriage ceremony to a same-sex couple in a church, synagogue or mosque, but the Bill offers no protection to a civil registrar or other service providers (photographers or chauffeurs, for example) who cannot, on grounds of conscience, agree to be involved in a same-sex wedding.

2.11 There are also no protections in the Bill for individuals and charities that provide marriage courses or offer an advice and counselling service to married couples, who could not in good conscience provide the same service to same-sex couples.

2.12 In spite of repeated government assurances that teachers who believe that marriage can only be between and man and a woman have nothing to fear, a senior source in the Department for Education has referred to an ‘inherent uncertainty’ about the implications of the proposals for teachers and schools. [6] We shall further address the implications of the Bill for teachers and schools in a separate section below.

2.13 We share the concerns of those who have warned that redefining marriage to accommodate same-sex couples and transsexuals will lead to calls to recognise those who identify as bisexual and wish to be married to a person of each sex simultaneously. While we recognise that the government has stated : ‘We have absolutely no plans to amend the law of marriage in any other area , [7] we note that the Labour government offered similar assurances when it legislated for civil partnerships less than a decade ago.

2.14 At that time, the minister for constitutional affairs, Lord Filkin , told the House of Lords: ‘The concept of homosexual marriage is a contradiction in terms, which is why our position is utterly clear: we are against it and do not intend to promote it or allow it to take place.’ [8] While we accept that no government can be bound by promises and assurances given by a previous administration, we mention this to illustrate the speed with which an idea which is rejected out of hand one year can be embraced and pursued with vigour and, as in this case, without an electoral mandate, just a few years later.

2.15 Strongly c ommitted as it is to creating legal parity between opposite sex and same-sex relationships, in drafting the legislation the government has been unable to escape the fact that they are fundamentally different. No amount of rhetoric or manipulation of language will ever be able to make them the same. The whole notion of ‘equal marriage’ for same-sex couples is flawed.

2.16 We are concerned that, in pursuing something which does not and cannot exist out of a desire to accommodate the wishes of the few, the government will inevitably create a whole host of injustices and inequalities for the many.

3 . The meaning and purpose of marriage

3.1 In opting to consult on ‘how, not whether’ to legislate for same-sex marriage and in subsequently electing to rush the Bill through Parliament, the government has not permitted time for a considered and measured debate on the meaning and purpose of marriage and the reasons for which the state has a legitimate interest in the institution.

3.2 We are not persuaded that the government has honestly faced up to these foundational questions.

3.3 In response to a question about the meaning and purpose of marriage, the Secretary of State for Culture, Media and Sport told the public bill committee: ‘I see marriage very simply as an ability for two people to come together and stay together, and to pledge their commitment to stay together for life.’[9] Unlike the Shadow Minister for Women and Equalities, the Secretary of State at least recognises that marriage is a lifelong as opposed to a ‘longterm’ commitment. Nevertheless, her definition is inadequate and demonstrates how the government is proposing to fundamentally change the meaning of marriage in order to make it ‘fit’ same-sex couples.

3.4 Marriage is defined in law as ‘ the voluntary union for life of one man and one woman to the exclusion of all others’. There are four key components in this definition: marriage is voluntary, heterosexual, monogamous and lifelong. These four elements belong together. If any one of them were to be amended or removed, it would change the definition of marriage and the meaning attached to marriage in society.

3.5 The government claims that the purpose of the Bill is to ‘extend’ marriage to same-sex couples, but since heterosexuality is one of the defining characteristics of marriage, in order to accommodate same-sex couples, it needs to redefine the terms of marriage so that marriage ‘fits’ both same-sex and opposite-sex couples. This necessarily involves reducing the meaning of marriage to a lowest common denominator.

3.6 If, as the Secretary of State suggests, marriage is to be reduced to no more than ‘an ability for two people to come together and stay together, and to pledge their commitment to stay together for life’, it is difficult to see any logical objection to permitting two close family members to marry.

3.7 In its proposals to redefine marriage, the government appears to have lost sight of the reason for which marriage has merited legal recognition historically. The law does not normally interest itself in the formation of close friendships and other emotional bonds, but it does recognise marriage because of its potential to produce children, because of the proven benefits it brings both to children and to society, and because of the web of intergenerational support it provides.

3.8 As the authors of a recent book on this topic have noted, the same-sex marriage debate represents a pivotal stage in a decades-long struggle between two views of the meaning of marriage: the conjugal and the revisionist. [10] The conjugal view defines marriage as a physical as well as an emotional and spiritual bond, distinguished by its comprehensiveness. It is a union inherently ordered to procreation and family life, and marked by lifelong fidelity. By contrast, according to the revisionist view , marriage is reduced to a loving emotional bond in which fidelity and longevity are ultimately subject to the desires of the individual.

3.9 If marriage is redefined to include same-sex partnerships, there is the danger that it will come to be seen as essentially an emotional bond rather than as a comprehensive union, and the norms of permanence and sexual exclusivity will be eroded. Indeed , there is no reason why a purely emotional union should be permanent or limited to two people. Since a strong marriage culture is good for children, spouses and for the economy, such an outcome would not serve the best interests of society.

3.10 If it is the intention of the government to replace the conjugal view of marriage in law with the revisionist view, it ought to be honest about what it is seeking to do. Rather than subject marriage to a hastily-formulated modernising agenda, the government should be willing to take time to subject its proposals to consultation on whether the public supports such a radical cultural change. Particular note should be taken of the views of married couples to ascertain whether they wish parliament to change the legal meaning of marriage.

4 . Implications for teachers and schools

4.1 If the government succeeds in its attempt to redefine marriage, there could be serious and far-reaching implications for the school curriculum and for teaching staff in both primary and secondary schools.

4.2 According to a legal opinion prepared by John Bowers QC on behalf of the Coalition for Marriage (C4M), schools could be required to teach pupils about the importance of same-sex marriage and teachers could face disciplinary action for refusing to use materials endorsing marriage between two men or two women.[11]

Implications for the curriculum

4.3 Section 403 of the Education Act 1996 requires the Secretary of State for Education to ‘issue guidance designed to secure that when sex education is given to registered pupils at maintained schools…they learn the nature of marriage and its importance for family life and the bringing up of children’.

4.4 If marriage were to be redefined, however, learning about ‘the nature of marriage’ and about ‘its importance for family life’ would take on a new meaning. It would involve subjecting pupils to teaching about same-sex marriage on the same basis as marriage between a man and a woman, and it would involve teaching them that each type of marriage is of equal importance to family life and the bringing up of children.

4.5 The claim has been made in the public bill committee that teachers who do not agree with same-sex marriage would be in a comparable position to teachers who do not agree with other sensitive issues such as abortion or divorce – i.e. they would be able to refer to it as a legal reality without personally endorsing it. However, there is a significant difference in relation to same-sex marriage. Sex education teachers are required to teach about ‘the nature of marriage’ and about ‘its importance for family life and the bringing up of children’ in a way that they are not required to teach about abortion or divorce.

4.6 While a teacher with a conscientious objection to same-sex marriage may be able to refer to it as a matter of law, he or she may not be willing to teach about ‘the nature’ of same-sex marriage nor teach that it was of equal importance for family life to marriage between a man and a woman.

4.7 Although primary school governing bodies have discretion as to whether or not they provide sex education, most do. Unless the law covering sex education is amended, primary schools that provide sex education will be obliged to give positive and non-discriminatory instruction about same-sex marriage in the context of teaching ‘the nature of marriage and its importance for family life and the bringing up of children’.

4.8 John Bowers QC is not convinced that opting out of teaching sex education would provide an adequate safeguard for primary schools that did not wish to broach the subject of same-sex marriage. Quite apart from the law on sex education, he writes:

‘In my view the Public Sector Equality Duty imposed under Equality Act 2010 would provide a legitimate basis for including not just the fact of same sex marriage but also an endorsement of it as part of the curriculum.’

Implications for teachers

4.9 While the government has repeatedly insisted that, ‘No teacher will be required to promote or endorse views that go against their beliefs’ if marriage is redefined, both Aidan O’Neill QC and John Bowers QC are not so confident. According to Aidan O’Neill, a teacher could be dismissed for refusing to comply with a headteacher’s request to use a book such as King & King because it went against her Christian convictions about marriage.[12]

4.10 In the view of John Bowers, as the law stands, there would be a duty placed on teachers to promote the new definition of marriage if the Marriage (Same Sex Couples) Bill receives parliamentary approval in its present form. He writes:

‘The stark position in my view is that a Christian teacher (or indeed any teacher with a conscientious objection) may have to teach about (and positively portray) a notion of marriage (and its importance for family life) which they may find deeply offensive.’

4.11 According to Mr Bowers’ advice, schools would no longer be free to present ‘marriage between people of the opposite sex as positive and marriage between people of the same sex as less positive or negative’. In fact, they would have a legal duty to ‘positively promote same-sex marriage within sex and relationships education’ and no sex education teacher would have the right to refuse to teach about the ‘importance’ of same-sex marriage.

4.12 In Mr Bowers’ judgment, ‘Elevating one kind of marriage over another is likely to amount to indirect or direct discrimination.’ In short, he writes that: ‘The position of the teacher who manifests a conscientious objection to [using materials endorsing same-sex marriage] is not enviable.’

4.13 According to a ComRes poll of teachers, 61 per cent of primary school teachers are concerned that expressing support for traditional marriage could damage a teacher’s career if marriage is redefined, while 19 per cent of teachers think that it is right that a teacher face disciplinary action for refusing to teach about same-sex marriage.[13]

4.14 We have been dismayed by the manner in which the Secretary of State for Education brushed aside questions about the implication of the Bill for schools during his evidence session and by the manner in which the Minister has dismissed concerns subsequently. We would urge the public bill committee to give careful consideration to the advice provided by John Bowers QC.

March 2013

References

1. Marriage (Same Sex Couples) Bill, Explanatory Notes, para 101.

2. Marriage (Same Sex Couples) Bill, Schedule 4, Part 3, s4.

3. Marriage (Same Sex Couples) Bill, Schedule 4, Part 3, s3.

4. Department for Culture, Media and Sport, ‘Myths about equal marriage - Setting out the truth’, January 2013.

5. At Second Reading, the Second Church Estates Commissioner stated: ‘[A]s many other commentators have made clear, there is an inevitable degree of risk in all this, given that it would ultimately be for the courts, and in particular the Strasbourg court, to decide whether provisions in the legislation are compatible with the European convention on human rights. There is absolutely no doubt that once marriage is redefined in this very fundamental way, a number of new legal questions will arise and no one can be sure what the eventual outcome will be… On the specific protections that the Government are seeking to give to Churches that do not wish to perform same-sex marriages, I believe that they are being done in the best of faith and as robustly as the Government feel able, but I simply reiterate that there is no way in which any of us can know just how robust these protections will be until they are tested in the courts.’ House of Commons Hansard, 5 February 2013, cols 144-145.

6. John Bingham and Tim Ross, ‘Government "powerless to protect teachers from sack over gay marriage"’, Daily Telegraph, 25 January 2013.

7. Department for Culture, Media and Sport, ‘Myths about equal marriage - Setting out the truth’, January 2013.

8. House of Lords, Hansard, 11 February 2004, col 1094-1095.

9. Marriage (Same Sex Couples) Bill, Public Bill Committee, 12 February 2013, col 5, question 6.

10. Sherif Girgis , Ryan T Anderson, Robert P George, What is Marriage? Man and Woman: A Defense , Encounter Books, 2012.

11. Quotations in the paragraphs that follow are taken from the advice on the Marriage (Same Sex Couples) Bill provided by John Bowers QC to the Coalition for Marriage, 1 February 2013. http://c4m.org.uk/downloads/johnbowersadvice.pdf

12. Aidan O’Neill QC, Advice Re The implications for freedom of conscience and religious liberty arising from redefining marriage in England and Wales, 17 December 2012.

13. ComRes, Teacher Poll: Same Sex Marriage, January 2013.

Prepared 6th March 2013