Marriage (Same Sex Couples)

Memorandum submitted by the Gay and Lesbian Humanist Association (Galha LGBT Humanists) (MB 96)

1. About Galha LGBT Humanists

2. Founded in 1979, Galha LGBT Humanists is a democratic, membership organisation based in the UK with members worldwide, promoting Humanism and LGBT equality. Galha LGBT Humanists promotes Humanism and LGBT equality, working to combat prejudice and discrimination against humanists and lesbians, gay men, bisexuals and trans people. Since 2012 Galha LGBT Humanists has formed the LGBT Humanist division of the British Humanist Association.

3. The GALHA website is at www.galha.org

4. The Humanist Philosophy and Marriage

5. Humanism is a broadly based belief system grounded in the notion that our values and our actions should be guided by human experience, human empathy and human reason. It attaches particular value to promoting human happiness and human freedom. Equality is also a key underlying humanist principle, in that by default all humans should enjoy equal rights and responsibilities except where there is some very strong clear and justifiable reason to treat them differently.

6. Humanists consider institutions like marriage primarily in terms of how far they contribute to the welfare of the couple marrying, to their family and to wider society. Given the central position of marriage as a social institution, and its influence on our lives, it is not surprising that different humanists have taken different views as to its significance and merits.

7. Many humanists value marriage for the love it can foster and the happiness and stability that it can bring, especially but not only where a married couple are raising children. Others see marriage as carrying a cultural and historical legacy, including pronounced religious overtones, and a tradition where wives were long considered subordinate to their husbands, making it less attractive in an increasingly secular and egalitarian society. Other humanists are more sceptical about how far the state ought to get actively involved in promoting particular types of relationships in preference to others, and place particular value on adults’ freedom to decide the shape and terms of our own relationships.

8. The Central Role of Equality

9. All of the above strands of humanism are united in believing that, given that marriage does carry particular status and legal rights and responsibilities, then all sections of society should have access to marriage on equal terms, unless there is some clear and overriding reason for excluding them. For gay, lesbian, bisexual and transgender people to enjoy the full protection and benefits of marriage, and to be able to take on its responsibilities, this entails making marriage available to same sex couples, as far as possible on the same terms as for opposite sex couples.

10. Galha LGBT Humanists therefore greatly welcomes the introduction of the Marriage (Same Sex Couples Bill) and the overwhelming vote in favour of a Second Reading by the House of Commons. We strongly support the main principles of the bill, but believe that there are a number of areas where it needs to be improved. We recognise that there is a general desire from those promoting the bill not to alter the status or rights of opposite sex married couples, and our comments reflect this, and therefore do not address any areas in which opposite sex marriage might be improved or altered.

11. The Status of Civil Partnerships

12. Galha LGBT Humanists welcomed the advent of Civil Partnerships as a huge step forward in securing more equal rights and more equal recognition for same sex couples. It was also welcomed specifically by those people, both humanist and non-humanists, who wanted protection under the law but who did not identify with marriage and its cultural legacy. Given that many people, both gay and straight, came to see Civil Partnerships as "not quite equal" to marriage, the introduction of marriage for same sex couples is a further important step forward, but raises the question as to what if any should be the role of Civil Partnerships in future.

13. The proposal to retain civil partnerships for same sex couples only, while continuing to deny them to straight couples will perversely replace a situation where gay people suffer discrimination with one which arguably discriminates unfairly against straight couples.

14. There is a case for making both marriage and civil partnerships available to both gay and straight couples alike, as has been done in, for example, The Netherlands. This provides full equality of choices, and also means that straight couples who do not identify with marriage could still gain the legal protections of a civil partnership. It would also enable an opposite sex couple to be protected in a non-sexual relationship. There might be fewer marriages in future, and yet more couples overall in legally committed relationships.

15. The other option would be to replace same sex civil partnerships with marriage, while allowing existing civil partnerships to remain in place if the couple so chose, as has been done in, for example Sweden and Denmark. That would ensure full equality, and would probably be the most attractive option for those who believe that the state should be proactively promoting marriage, but would mean that neither gay or straight couples who did not wish to marry could gain legal protection for their relationships.

16. We believe that the government’s proposed option is intellectually and morally indefensible and likely ironically to lead to resentment from some straight couples, and potential legal challenges on the basis of discrimination which would be hard to refute.

17. Religious and Humanist Ceremonies

18. Galha LGBT Humanists welcomes the Bill’s broad provision that religious bodies will be entitled, but not compelled to carry out same sex weddings as being the best way to balance equality for LGBT people with religious freedom. We believe that the provisions making it illegal for the Church of England or the Church of Wales to carry out such weddings is clumsy and raises further questions about the Church of England’s status as the established church in England. One option would be to have a provision in the law which would automatically lift the ban as and when the Church of England or the Church of Wales voted in favour of performing weddings for same sex couples.

19. We also believe that the law in England should enable Humanist marriage ceremonies to be legally recognised, both for same sex and opposite sex couples, as already happens in Scotland.

20. Other areas of Equality

21. Given the central importance of the principle of equality in making marriage available to same sex couples, we believe that every effort should be made to iron out inequalities where practically possible.

22. The principle of consummation, while hardly ever referenced in modern society – except oddly enough when talking about same sex marriage - does reflect the principle that a marriage has been presumed to be centred on a sexual relationship. One by-product of civil partnerships is that while two people of the same sex can enjoy legal protection in a purely platonic relationship, an opposite sex couple, at least in theory, cannot.

23. However given that there is no single act, or even range of acts that could count as necessary and sufficient to "consummate" a sexual relationship between two men or two women, and given the impossibility of verifying this – and indeed given the fact that it is not actually verified in practice in many opposite sex marriages, we believe that it makes pragmatic sense to omit this for same sex marriages.

24. The principle of adultery is more problematic in that as currently defined it is limited to a form of intercourse that is physically impossible for a same sex couple. Nonetheless it does seem somewhat perverse that the only situation in which a same-sex husband or wife could sue on grounds of adultery would be where their husband or wife had intercourse with someone of the opposite sex. The absence of a provision for adultery does create a lingering impression that a same sex marriage is in some sense less ‘serious" and committed than an opposite sex one and this goes against one of the key aspirations of the bill.

25. A more egalitarian approach would be for a husband or wife to be able to sue for adultery where any act of a sexual nature was committed by someone other than the spouse. While there are of course, and always have been "open" marriages, in a situation where both spouses accepted this then the principle of adultery would never be invoked. (Indeed even in Victorian times a husband who knowingly went along with his wife’s adultery could not then use it as grounds for divorce).

26. Converting a Civil Partnership to a Marriage

27. Galha LGBT Humanists sees it as entirely logical and reasonable that civil partners should be able to convert their civil partnership to a marriage, either with or without a marriage ceremony. However, given that many of the existing 100,000 or so people in civil partnerships would presumably have chosen marriage in preference to a civil partnership had the option been available, we believe that the conversion should either be free of charge or for a purely nominal fee, rather than the sum proposed. Again this is natural justice.

28. Summary

29. In sum Galha LGBT Humanists sees the bill as a further extremely important step forward towards creating a fairer and happier society. We believe that the changes suggested will make the bill even better: to allow Humanist celebrants to carry out legally-valid marriage ceremonies; to eliminate the unequal availability of civil partnership by opening it up to heterosexuals; and to leave the decision on conducting same-sex marriages directly up to the Church of England rather than legislating on their behalf. We are also very keen that there is no exception available to those employed by the state to conduct marriage ceremonies that might allow them to refuse that service to same-sex couples.

March 2013

Prepared 6th March 2013