Driven by data; ridden with liberty.
The House of Commons has backed the extension of marriage to same-sex couples in England and Wales. Prime Minister David Cameron said the vote was “an important step forward”, and Leader of the Opposition Ed Miliband called it a “proud day”. The Marriage (Same Sex Couples) Bill received 400 votes in favour, with 175 MPs opposing the change, as part of a free vote, meaning MPs were not told which way to vote by party whips. Since the year 2000, eleven countries have allowed same-sex couples to marry: Argentina, Belgium, Canada, Denmark, Iceland, Netherlands, Portugal, Spain, South Africa and Sweden. Sub-national districts, such as many states in the United States of America, have also provided same-sex couples the freedom to marry.
Marriage is an evolving institution, having genesis before reliably recorded history, across a range of countries and cultures. In Britain, this evolution has been traceable through parliamentary legislation. Prior to Lord Hardwicke’s Marriage Act of 1753, marriages did not even require a formal ceremony, which had led to legal issues surrounding clandestine marriages. The 1753 Act had meant that the only recognised marriages in Britain, apart from those of Jews and Quakers, were those performed in a parish church by a clergyman of the Church of England. The Marriage Act of 1836 created civil marriages in England and Wales, which are performed by government officials rather than religious organisations. This change allowed non-Anglican Christians to be married according to their own rites and procedures. Further alterations occurred in 1949 and 1994, prohibiting marriages occurring the evening and night, and relaxing rules on where people could marry, respectively. The 1949 Act also set out that all marriages involving a person under the age of 16 were void, and all people wishing to marry under the age of 21 had to obtain permission of their parent or guardian. The restrictions on the hours of marriage solemnisation were later repealed by the Protection of Freedoms Act 2012.
A civil partnership, created by the Civil Partnership Act 2004, endows same-sex couples with rights and responsibilities identical to those found in civil marriages. The main distinction between civil partnerships and civil marriages is that marriages may take place in religious buildings, whilst civil partnerships are excluded from having religious ceremonies, even if religious organisations would consent to the use of their buildings.
Nor are all these changes to marriage minuscule – there have been some fundamental and radical reformations to the institution of marriage. The Church of England itself seceded from the Roman Catholic Church after a Papal refusal to annul Henry VIII’s marriage to Catherine of Aragon; thereby Henry VIII abolished marriage’s partial definition as a life-long commitment to the exclusion of all others. There were calls during the House of Commons debate to respect the ‘biblical definition of marriage’, with the speaker intending to mean the lifelong union between one man and one woman. However, Deuteronomy 22:13-21 specifies that the bride must be a virgin, and if she is not, “the men of her city shall stone her with stones that she die: because she hath wrought folly in Israel”. Clearly, these restrictions and punishments are no longer required.
Throughout history, marriages have neither been entirely monogamous and bilateral, nor have they have always been restricted to people of the opposite gender. Marriages have sometimes been egalitarian and complementary, and at other times hierarchical, with the wife being passed as if she was property of her father, to the property of her husband. On the same lines, marriage has never been strictly about raising children. Such arrangements are uncommon, especially in the modern day, but they cannot be considered excluded from marriage’s sole definition. These evolutions have occurred over centuries, finally resting at our current conception of marriage as a monogamous and complementary life-long relationship between a man and a woman, with the usual intention of raising children.
The main thrust of opposition to same-sex marriage is through religious freedom, the fear that churches and other religious institutions will be forced to provide same-sex ceremonies against their wishes and beliefs. Usually, the European Court of Human Rights (ECHR) will be cited as the power that will make Parliament change its laws, even if the legislation is designed to vanquish such a possibility. Equalities Minister Maria Miller forged a ‘quadruple lock’ for religious groups who oppose gay marriage, meaning that each group has to opt-in, and individual ministers can only perform same-sex marriage if their group has opted in. No discrimination claim can be brought against religious organisations or their ministers for refusing to conduct a same-sex marriage.
There does remain a scintilla of conceivable outcomes that involve the new legislation being challenged through our courts, but as Gavin Barwell MP elucidated in his speech, that could happen with current laws, and is not a credible risk. In British politics, the ECHR is a figure akin to Descartes’ Malicious Demon: omnipotent, ever watchful and never sleeping. The fact is that multiple signatories to the ECHR have introduced same-sex marriage, and no legal challenge has been brought to the ECHR. Denmark did write a law that made it mandatory for all churches to conduct same-sex marriages, but their parliament did so under its own volition.
Religious freedoms are strongly valued in Britain, but before this Bill receives Royal Assent and becomes law, it is illegal for churches that wish to marry same-sex couples to do so. This is a severe restriction on the liberty of consenting adults, religious and secular alike.
When distilled from declarations of love and commitment, marriage is the dispensation of special privileges by the state onto certain relationships. The state certification of relationships should end, and marriage become a truly social institution with the associated bundle of contractual and civil obligations decided by private religious groups and secular organisations. If the modern conception of marriage is ‘socially optimal’ and provides the best basis for stable life to succeed, then it will flourish through organic support, not through state elevation. However, political reality must creep in, and we should accept that this prospect is very unlikely. There are currently no major campaigns for the abolition of state certified marriage. Thus, we should seek to widen the franchise of marriage, and give gay couples the freedom to marry.