Marriage Partition: The State Should Butt Out of Marriage and Stay Out!

The Marriage (Same-Sex Couples) Bill, published on 25 January 2013, is to be debated and approved by a free vote of MPs next Tuesday, 5 February 2013. Same-sex marriage will be lawful by ceremony, or conversion of a civil partnership, but excluding consummation, annulment, adultery and divorce, seen by many as integral to what constitutes marriage. The Bill partitions marriage into ‘same-sex’ marriage and ‘opposite sex’ marriage, the latter remaining otherwise unaffected. The history of western state imposed partitions in other contexts, such as Ireland, Palestine, Germany and Yugoslavia, has had dire consequences for freedom and this one, although cultural, not geographic, is likely to be no different.

So, the new definition of marriage is potentially very divisive. Gay couples are exempted from those parts of marriage that ‘opposite sex’ couples have to follow, such as consummation and adultery, so there will now be one form of legal marriage for heterosexuals and another for homosexuals. Traditionalists will oppose having their view of marriage partitioned to include same-sex couples, and most gay organisations will claim the proposals do not go far enough to give gay couples exactly the same status, due to the differences in forms of legal marriage. Conflicting ideas and beliefs on marriage will be locked together in this formal fudge, that will set groups, religious and sexual, at each others’ throats. In partitioning marriage, the state puts conflicting interests and differences in marriage views to the fore, rather than what could be shared and commonly experienced.

The Christian view of marriage has held sway in western societies for many centuries. Marriage behaviour and beliefs have changed over time and laws generally have followed these changes. At both individual and social levels, marriage is inherently exclusive. Regulations have developed over the centuries, although surprisingly few, to set boundaries to marriage to exclude many people and groups, including any third parties, children, bigamists, close blood relatives, those with STD, those incapable of making a free decision and people of the same sex. The evolution of this body of law, in response to changes in social behaviour, is qualitatively different from the UK and other governments now seeking to impose a statutory redefinition of marriage, where none currently exists, under the banner of injustice to gay people. For example, a member of a married same-sex couple may have sex with a third party, but this would not be adulterous as with a heterosexual marriage and same-sex couples need not consummate their marriage. I predict the main winners of the Bill will be lawyers and counsellors. The very act of Government in distinguishing between religious/traditional/opposite sex and civil (to be state) same sex marriage interferes with individuals’ beliefs, behaviour and freedoms. People getting married may feel obliged to have their lawyer present to help interpret and guide compliance with the regulations. Busy registrars and state sponsored mediators, such as RELATE, will find their workloads intensify, as they will be called in much more often to negotiate individual marriage expectations and behaviours.

And this is the problem. If the state can start to dictate, in a much more intrusive manner, how we relate to each other in marriage, our most intimate and intense of personal relationships, then it will extends its moral authority over much wider areas of our lives. As ‘freedom is indivisible’ (John F Kennedy and many others), these restrictions to individual freedoms have a direct link to potential attacks on religious freedom. The Bill allows religious organisations to hold same-sex marriages on their premises, if approved by their governing body, with the exception of the Churches of England and of Wales, where Government proposes to continue to exclude gay marriage from these established churches. The Coalition for Marriage is already planning to go to the European Court on this latter point, despite Government claims that it has ‘quadruple locked’ religious organisations against legal challenge. Maria Miller, Culture Secretary, stated, ‘as freedom of religion is important, no church or religious organisation will be required to hold same-sex marriage ceremonies, but those who want to should be able to’. But she has also told teachers on Radio 4 Today that they will be able to tell their students that different religions have different beliefs when it comes to same-sex marriage, but they still must teach same-sex marriage in a “balanced way,” regardless of their beliefs’ – So the battle lines on the cultural war launched by the state partitioning of marriage are already being drawn up.

An old friend of mine, Kenan Malik, and I have been in a debate on his blog site about the relationship between gay marriage and religious freedom. We’ve both come a long way since the ‘eighties, when we used to run around the East End of London, demanding an end to all immigration controls and fighting racist thugs off the streets. Society and politics have changed, but my suspicion of state power remains. In those days, the state made racism one of the the issues upon which we defined ourselves, individually and collectively, in relation to it. Today, such defining issues usually take the form of cultural wars whereby the state asserts its moral authority and control over all of us.

The UK and other western governments have made marriage and the demand for same-sex marriage one such defining issue. Kenan Malik, in his recent blog ( acknowledges concern for attacks on religious freedom, as ‘there may well be grounds for such fears’. And: ‘If it turns out that Catholics, or anyone else, are prevented from teaching what they consider to be the ‘truth’, either in public or within their own institutions or places of worship, such restraints should be robustly challenged’. But ‘the remedy for possible injustice to one group in the future cannot be the insistence on injustice to another group today’ and he believes the call to legalise same-sex marriage is ‘to oppose the right of the state to tell gays that they cannot get married is to recognize the Government’s ‘moral authority to define and so direct our marriage behaviour’. He argues that governments have always legislated for marriage and ‘the fact that abortion, contraception, homosexuality and divorce are all legal in Britain has not prevented Catholic priests or teachers from asserting their ’truth’ on these issues, or barred them from entering any profession’. He concludes there is no direct link between legalising same sex marriage and curtailing religious freedom.

This is all to deny that, at a time when narrow political elites and western states are demanding to stamp their moral authority on our most intimate and intense of relationships, we should resist. The UK government made clear in its March 2012 ‘consultation’ that it is seeking a legal definition of marriage, where none previously existed in statute. The state has never prescribed by law what constitutes marriage, nor should it now, or in the future. We now face the partitioning of marriage that will stir up trouble for many people and so should strongly oppose it. Kenan likes to use analogies so I will use one. Just because states curtailed freedom of movement over centuries past does not make state imposed immigration controls any the more acceptable or authoritative. Believers in freedom support open borders for all, and not just for one group in favour of another.

Abortion, homosexuality and divorce were legalised following popular based campaigns that wrought concessions from recalcitrant governments. Contraception was legalised after many people took matters, literally, into their own hands. These hard won victories were progressive extensions of freedom for all concerned, pushing back the limits on state interference in our individual and social lives. Being progressive, they had no negative impact on religious freedoms. That is the very opposite to the same sex marriage debate, where support for legalising same sex marriage can only lead to state restrictions on our freedom in some form or another. Partitioning marriage instills and legitimises cultural divisions, pitting supporters of different forms of marriage against each other.

However, although very concerned about the contents of these proposals, what scares me much more is the wide recognition, including that of an intellectual iconoclast such as Kenan Malik, that the Government has the moral authority to control our marriage behaviour. With his, and others’, support for the right of government to prescribe and proscribe marriage, and so our personal beliefs, serious attacks on religious beliefs will not be far behind.

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