I did promise myself that I would steer clear of the gay marriage debate, but after reading the submission of the Catholic Bishops of England and Wales (there is a link to it here ), I find myself driven to comment once more.
The first point the Bishops make is an excellent one:
6. The burden of proof for serious changes to the law falls to those proposing the innovations. The radical change in social policy being proposed by the government requires very careful thought and analysis. The government’s proposals for such change and innovation in marriage should be open to extensive discussion and debated thoroughly, prior to the announcement of its determination to instigate legislative change.
7. It is of serious concern to the Bishops therefore that this proposal, which has the potential to impact so immensely on the social stability of our society and which has significant implications for the unique institution of marriage and of family life, appears not to have been subject to such careful study and analysis. The proposal for same-sex marriage legislation is based only on two very brief Party Conference announcements. There has been no Royal Commission, no manifesto commitment, no Green Paper and no White Paper.
Quite so. The Bishops also point out that the consultation is quite bogus, though they are too polite to say so in such direct language. The Government has already decided that change must happen, and the consultation is merely about how the change happens. The exercise is called “the Equal Civil Marriage Consultation”. That title presupposes only one possible answer. No one could be against equality, could they?
Most of what the Bishops have to say on this matter has been gone over before, and will, I fear, make little impact. The government has made up its mind, and the legislation will pass the House of Commons with little difficulty: there will be some opposition from the Conservative benches, and some from the Labour ones, but not enough to stop it. Or so I am told.
Only one passage made me sit up, and it was this:
37. Men and women are different physically, mentally, and spiritually. They are, in all respects, complementary, both designed and suited for the task of begetting and raising children over a sustained period. Marriage is the legal recognition of this, and without the physical consummation of marriage, where that complementarity is most fully expressed, a marriage is voidable under English law.
38. The consultation document makes clear (para. 2.16) that the concepts of consummation and adultery would apply equally to same-sex marriage. But instead of considering how the law should define these issues for same-sex couples, it simply abandons the matter to future case law. But the common law method proceeds by dealing with the real and difficult cases before the court. The scope for expansion through precedent of what kinds of relationships are covered by marriage or civil partnerships is very real unless there is legislative clarity at the outset defining these issues.
This is all very straightforward, and it calls to mind those court cases, thankfully rather rare, but always notorious, where a court is called on to hear evidence as to whether consummation has taken place or not, and whether adultery has taken place or not. We all know, or ought to know, what constitutes consummation, and what does not, though most of us are, thankfully, completely in the dark about what is meant by “Hunnish practices”. But the sting is in the tail. The courts will decide what constitutes consummation for same sex couples, and the Bishops say “the scope for expansion through precedent of what kinds of relationships are covered by marriage or civil partnerships is very real”.
What on earth does this mean? They cannot possibly mean polygamy, can they? I am really in the dark as to this one, and I wish it were clearer.
The Anglican Bishops have the following to say on the same matter, to be found at paragraph 19 of their document :
We note that in paragraphs 2.14—2.16, the consultation document leaves the complex question of defining adultery, non-consummation etc. to be determined by case law. The stated objective of having identical reasons for ending both a same-sex and a heterosexual marriage is problematic and does not seem to be achievable given that the existing definitions of adultery and non-consummation cannot be applied to the case of a same-sex marriage. The proposed reliance on case law to sort out these points is unsatisfactory. More fundamentally the analysis fails to take account of the fact that consummation has always been an integral part of the common understanding of marriage between church and state, with annulment possible where consummation does not occur.
One notes here no concern about case law and “the scope for expansion”. The Church of England document is very well argued and makes some excellent points about the law as it currently stands, and the way new legislation will bring challenges in its wake. In other words, this is a document that has been thought through (as has the Catholic one). How one wishes one could say the same of anything our Prime Minister has come up with of late: his sudden championing of gay marriage is as problematic as the pasty tax, the granny tax and all the other ill-conceived recent initiatives of the Government. But in this case, a U-turn, though desirable, does not at this stage seem possible. As both documents point out, the government has little understanding of marriage itself. It is no surprise then that this proposed legislation – the modification of something that they do not understand – is so deeply flawed.
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