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Lord Lester of Herne Hill moved Amendment No. 87:

"United States of America:Massachusettssame sex marriage or civilunion, as the case may be"

The noble Lord said: My Lords, Amendment No. 87 is tabled in my name and that of my noble friend Lord Goodhart. It is an example of the Gilbert and Sullivan situation which the House has been put into today that the position is now as follows. Had not the Bill been wrecked, making pointless Schedule 20 to it, the Government would have moved Amendment No. 86. I am delighted that they would have done because they have decided to include the two Canadian provinces of Quebec and Nova Scotia in the schedule because each of the registered partnership schemes satisfies the Bill's criteria.

Amendment No. 87 seeks to include the Commonwealth of Massachusetts in Schedule 20. Certainly this would not be pleasing to the President of the United States, but it would be pleasing to many other people in Massachusetts and beyond. I shall explain. The Bill contains a power to specify jurisdictions which have schemes that fulfil the requirements to be recognised as civil partnerships in the UK. At present the only United States jurisdiction specified is Vermont. I and others hope to persuade the Government—and certainly when the Bill reaches the other place—that it would be right to include Massachusetts in the specified list. That is because, as the Government fairly concede, its gay marriage provisions fully meet the prescribed criteria in the Bill.

I thank the noble Baroness, Lady Crawley, for her letter to me of 10 June that was copied to all Peers who spoke in Grand Committee. I do not agree that the law in Massachusetts is subject to what is referred to as,

As regards the Commonwealth of Massachusetts, the legal position is clearly set out in the first judgments of the Supreme Court of Massachusetts in the Goodridge case where Chief Justice Margaret Marshall, who I had the pleasure of meeting again the other day, conveniently summarised the relevant provisions for registration of marriages under Massachusetts state law. As the Government concede, it is quite clear that they fully satisfy the general requirements and conditions in the Bill.

I can say with the authority of others that there is no prospect of the decisions of the Massachusetts Supreme Court being challenged or reversed between now and the coming into force of the Bill. I understand that in May the Supreme Court of the United States rejected an attempt to prevent gay marriages being registered. To amend the Massachusetts state constitution, there would have to be a referendum in two years' time. Even if that were successful in amending the law, it could not take effect for a further two years. Moreover, if it were
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successful, it would turn gay marriages into civil unions, which would equally satisfy the matching requirements of the Bill.

I suggest that it is unfair and unnecessary for gay and lesbian partners who have registered lawfully under the prevailing Massachusetts legislation which meets the requirements of the Bill to be left in doubt about what will happen once it comes into force at some point next year, particularly given that the content of the Massachusetts law would not be altered, if at all, for at least two years and, if altered, would still fully meet the requirements of this Bill.

I know that the Government have received representations from the General Court of Massachusetts and from 24 or 25 state senators. Perhaps I may refer to the letter that they sent to the noble Baroness, Lady Scotland. They said:

They then explain that only Vermont is covered in the specified list and hope that the Government will include Massachusetts. The letter continues:

The letter is signed by state senator Barrios of Cambridge, Massachusetts, and 24 or 25 other state senators.

Why does it matter? It matters because there will be, let us say, middle-aged same sex couples who are married now under Massachusetts law. Like everyone everywhere in the world, they know that the law could be changed in Massachusetts. But they are there now and they need to know what their legal position is.

If the Minister were to reply to the amendment—I am not requesting that she should—she would confirm, I am sure, that such people will have no problem because they will satisfy the general conditions in the Bill. But how will they know that on the basis of a Pepper v Hart statement made by the Minister today? They will know it if Massachusetts goes into the schedule.

What possible reason could there be for not putting Massachusetts into the schedule? I am sorry to say that the only one I can think of is entirely political. We have a coalition government in some areas between this Government and the Government of the United States. We do not wish to offend the President of the United States, who went on record as soon as the court
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in Massachusetts made its decision. While the President was in London, he denounced the decision and said that he would seek to reverse it.

Any reversal using the federal constitution would probably take about 20 years. As the Minister knows—because she and I both had the privilege of a graduate education in the United States—it is extremely difficult to carry a constitutional amendment requiring the approval of all the states. It is ridiculous and unfair for gay and lesbian couples to be left in a position of legal uncertainty for reasons that do not pass muster. For example, in Canada, the law can equally be changed, and it can be changed in any of the other jurisdictions listed in the schedule.

I do not expect the Government to say today that they accept the amendment—I expect them to stick to the line that they have taken—but I have no doubt this issue will be raised in the other place. It might be better to raise the issue in the other place, where parliamentarians who are elected can listen to parliamentarians who are elected in Massachusetts and in the US Congress.

I have sufficient optimism in the Government, who have been splendid in the way in which they have approached the Bill. This is one of my only two rubbing points; otherwise the Bill is extremely welcome in all other respects. It would be very sad if the Government were, in that well-known cliché, to spoil the ship for a ha'porth of tar.

I very much hope that, even though the amendment will not be acceptable today, the mind of the Government will be sufficiently ajar for them to look more closely at the legal situation in Massachusetts. My amendment gives same-sex marriage or civil union as the two alternatives, which would deal with the situation should the law change. I hope that the Government will be sympathetic to what I am seeking to do with the object of explaining to the citizens of Massachusetts what the implications would be if they changed residence and came to this country. I beg to move.

Lord Alli: My Lords, I support the noble Lord, Lord Lester, on this particular amendment. I believe that the Government's position, as outlined in Grand Committee, is wholly inconsistent. If the state of Massachusetts has made gay marriage legal, then until an appeal is successful, those citizens should be treated as having a civil partnership in terms of recognition under the Bill.

I would push the Minister to look at the issue again but I suspect, on a non-party political point, that I will get the same response as the noble Duke, the Duke of Montrose, the noble Baroness, Lady Wilcox, and the noble Lords, Lord Higgins and Lord Lester. I suspect that she may not be tempted to go into this matter, even if it is put to her from this side of the House, but at least all parties will suffer.

The Lord Bishop of Winchester: My Lords, while I regret the character of the Massachusetts legislation, as the noble Lord, Lord Lester, will understand, that
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does not seem the point at the moment. What he has proposed seems entirely in line with the Bill as it is, in my view—as it was, in the view of the noble Lord and the Government. I believe the proposal is entirely in line with the Bill as it is, although the Government and the noble Lord, Lord Lester, think that it has been more radically changed than I think it has been. However, that is not the point at issue.

I thought there was not a leaf to be put between the Front Bench and the noble Lord. It is not possible to do business with the Bill now and the Government have been refusing to move their amendments, but the noble Lord has moved his amendment. The craziness of the situation seems a few notches crazier as a result of the noble Lord's latest intervention.

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