Gay Marriage – what’s next for Scotland?

Same Sex Marriage

Same Sex Marriage (Photo credit: Wikipedia)

Game, set and match to the equal marriage campaign – no?  Now that Obama has come out in favour of gay marriage in the USA, the liberal democracies of the western world (including Scotland) must surely follow?

As you will be aware, the Scottish Government are consulting on whether to open up marriage to same sex couples.  It strikes me that having a consultation is opening up the opportunity for people to complain about one side or other (or both) of the argument not being listened to – but there we are.

To summarise: the current position is that only male/female couples may marry – and that marriage may be civil or religious.  Only same sex couples may enter a civil partnership – which may not be religious.  The rights and responsibilities of couples within a marriage and a civil partnership are almost entirely the same.  In terms of the Equality Act 2010, it is unlawful for service providers to discriminate between the two in terms of service delivery etc.

Those in favour of same sex marriage argue that such discrepancies that do exist amount to discrimination and that equality in this field is nothing short of a human right.  Those arguing against say that there is already equality between marriage and civil partnership and that marriage is a religious estate which should not be redefined by the state – having been a mixed sex institution for some time now.

Regular readers of the blog will be aware of my church membership and fervent disestablishmentarianism, and it occurs to me that some of the difficulties arising could be resolved on both sides by insisting on a more rigorous separation of Church and State.

Why not, as the French do, make the whole thing a more prosaic matter of civil law?  Allow any two people (of whatever gender) to exchange promises and adopt standard rights and responsibilities towards and in respect of each other on a strictly civil matter.  We could call it a “civil union” or a “civil wedding” or – my personal favourite – a “state approved contract of mutual obligations”.  Strip out some of the weird historical anomalies – the State has no business insisting that any couple must have sex to remain a legal “item”!  Hey presto – equality for all.

Thereafter, if any given couple wish to celebrate their contract of obligations with a religious ceremony of some sort, then they are free to do so (assuming that they can find a willing religious body) and can call that part of it whatever they like.  In one fell swoop, the separation of Church and State is achieved – no more priests or rabbis or imams acting as agents of the Government in achieving social policy.

I like this as a solution, what do you think?

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7 Responses to Gay Marriage – what’s next for Scotland?

  1. Tim Macdonald says:

    It’s a commonly espoused solution (no pun intended), and it has a logical neatness of the sort that appeals to jurists and the more academic side of the human rights lobby, but I think it’s a bad idea in practice for a simple reason. People want to get married in church. Even not particularly religious people, and even a few determined atheists (like me). Your proposal would force such people to shell out extra money (at the same time as the most expensive party they’ll ever host in their lives) and time (when they’ve never been busier) for a second ceremony which they don’t really want. What exactly is the problem with the current system, whereby the state’s power to join two people together is delegated to religious leaders, who are available to those who want a legally binding religious ceremony?

    I can also provide an ideological objection and an academic objection, if such be your preference. (1) It accepts as correct the view that marriage as it now is belongs to religions, as though they had invented it and it didn’t predate all religions now existing. (2) If the legal ceremony is seen as meaningless by the couple, and the religious ceremony is seen as meaningless by the law, then have the couple actually consented to marry at the necessary moment?

    • It probably is a bit academic as a solution, you’re right! I suppose I would see the State delegating functions to religious bodies as a “bad thing” and something to avoid.

      The thing is that “marriage” isn’t just one thing. Yes, there is a religious heritage – but not solely that. Biblically, it included multiple wives (plus several concubines on the side) and in more recent history it has been essentially a property transaction.

      My marriage is something to do with my notions of romantic love, something to do with my Christian beliefs and something to do with being a context for my kids to grow up in. But that’s just me …

      And isn’t that the point? The State should stick to the bits which it needs to – the property and family law consequences. That may be sufficient for some – others may want a party, or a ceremony (with or without cake). For some a blessing or public commitment may be fine, without the need for a legal contract.

      Might avoid the whole thing becoming some kind of turf war, and all that unpleasantness, no?

      • Tim Macdonald says:

        You’re right that marriage has changed quite a bit throughout history, but I don’t see how that makes it “not just one thing” today, or indeed what that has to do with the discussion. Have I missed something?

        As far as I can see, the state does stick to the bits it needs to. That’s why there are no religious trappings at civil ceremonies. Do you perhaps mean that religions should stick to the bits that are important to them, namely solemnising a union in the eyes of God/gods/godesses, and that the power to create legally binding unions should be reserved to secular registrars alone?

        My point is that separating the two aspects (legal and spiritual) of religious ceremonies, and forcing people who want a religious marriage to go through both, will only be a hindrance. If the point of the exercise is to increase people’s freedom to have a marriage that’s appropriate for them, why would we take away a choice they currently have, namely to have their legally effective ceremony in religious premises or secular premises?

        Furthermore, I don’t think it will appease the anti-gay-marriage campaigners a jot. So its only perceived advantage would not (I think) actually be achieved.

      • Tim – you’re right that no solution is going to please everyone. But the principal benefit is not that it is acceptable to people, but that it achieves the proper separation of Church and State.

        You say that people have a choice to have their legally effective ceremony in religious premises. However, that’s only if you happen to belong to a religion which is approved for such purposes by the state. My friend Jen got married a few years back, but because her Church was a small groovy one, and not a big institutional one, she had to do the signing the papers bit the day before and the big Church wedding the next day. I don’t think that it’s a good idea to have the State approving religions for carrying out state social policy.

        I’d prefer a simply contractual agreement for the legalities – which can be a short and sweet as you like. Then complete freedom to celebrate the marriage in whatever venue or fashion you like (without the need for State approval).

        As for the State sticking to the bits it needs to – it insists that a wedding be consummated to be legal! I’d say that oversteps the boundaries by quite a bit!!

        Those are my views, but I appreciate not everybody’s. Any other viewpoints?

      • Tim Macdonald says:

        I think I understand you a bit better now: you’re saying we should be able to get legally married by signing a document without a state-authorised official having to interpone his or her authority, in the same way as we make any other contract? It’s certainly a radical solution. I can see its merits, but the implications would be far-reaching and probably unpalatable to most people for a variety of reasons. Will there still be publicity? If not, how is bigamy prevented (or is that to be legalised)? How free will couples be to decide what legal obligations will or won’t arise between them on marriage? Will deciding a person’s marital status (for the purpose of court proceedings) become as complex and fact-dependant as employment status? Or will marital status cease to matter? If so, expect your proposal to be perceived as abolishing marriage altogether.

        It’s unfortunate that a minority (like your friend Jen) don’t benefit from the “two for the price of one” deal that most of us get, but surely the solution is to extend that deal, not abolish it. Do you know whether her church had applied for its ministers to be authorised to conduct weddings? Not all religious bodies make that choice, after all.

        Can you provide legal authority for the contention that a marriage is not legal unless consummated? If that were so, I would agree with you; but I don’t believe it is. I have recently been involved in a debate about gay marriage with some Church of England folk, and learned that Doon Sooth a marriage is voidable on the grounds of non-consummation. The issue was that HMG doesn’t appear to have considered what “consummation” would mean in a same-sex marriage context. However, I have no knowledge of such a rule in Scotland. Impotence is indeed a ground (in fact the only ground) which makes a marriage voidable, but I don’t believe consummation (or lack thereof) has any legal significance, other than as one of an infinite variety of things that could establish that “the pursuer cannot reasonably be expected to cohabit with the defender” (Divorce (S) Act 1976, s1(2)(b)) and therefore be a ground for divorce. Can you enlighten me?

  2. Lazarus says:

    From a Catholic point of view, turning marriage (for the non-religious) into a mere form filling exercise would undermine its role as an institution ensuring stability for child rearing. In essence, the State needs to encourage people to take it as seriously as possible, and that means using all the anthropological tools of ritual etc to back it up.

    And on your comment ‘I don’t think that it’s a good idea to have the State approving religions for carrying out state social policy’, I’d completely disagree! The churches are, from the State’s point of view, one of those ‘small platoons’ that bind us together: supporting them in their function of encouraging responsible child rearing which benefits us all is precisely what the State should be doing.

  3. Tim – you’re quite right (again) – the whole consummating the marriage thing is more an England and Wales thing. It’s been a while since I studied family law! As you note it is potential grounds for divorce for one party to refuse to consummate or be unable to – but that’s a different case.

    Any future contract type marriages would have to be registered in some way of course, since the deal is you enter into this prescribed relationship in exchange for various tax and family law benefits!

    Lazarus – I’m not sure the ritual part of it is necessarily an attraction for everyone and might even put some folk off. And, it would still be available for religious and non-religious alike, but without any restrictions on what form it took. The State should stick to financial and other legal incentives to encourage marriage – if that’s what it wants to do. Religious bodies can encourage or exhort the flock using other means.

    Re: state approved religions carrying out social policy – I am of the view that such a relationship is bad news for the Church (and probably society as well). Strict separation should be constitutionally guaranteed.

    So far the headcount on my idea is 2 opposed (1 catholic and 1 atheist) and 0 in favour. I’m doing better on the facebook page – just waiting for a tie-breaker from a cat!

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