The Other Pope

Pope Shenouda III, who died at the weekend, was leader of the X million strong Coptic Church of Egypt (X being a number anywhere between 7 and 13) and possessor of one of the most remarkable beards of any prelate, certainly putting our own dear Rowan Williams to shame. He was 88, to Rowan's 61. But Coptic Popes aren't allowed to retire. Indeed, Shenouda appears to still be in the job, his final duty being to appear, propped up and fully robed in his patriarchal throne in Cairo, looking it must be said livelier than John Paul II did during the last five or so years of his pontificate.

Shenouda's death has attracted warm tributes from, among others, the Archbishop of Canterbury who spoke of Shenouda's "exemplary and outstanding" leadership and his "depth of Christian love, welcome and wisdom." Less attention has been paid to his cosy relationship with Mubarak or his history of making nasty anti-semitic remarks.

The Coptic Pope rejoices in one of the most grandiose titles in the Christian world. So complex is it, indeed, that it's not entirely clear just what it is. But it goes something like this:

Pope and Lord Archbishop of the Great City of Alexandria and Patriarch of All Africa on the Holy Orthodox and Apostolic Throne of St Mark the Evangelist and Holy Apostle; Father of Fathers; Shepherd of Shepherds; Hierarch of all Hierarchs; Pillar and Defender of the Holy, Catholic, Apostolic Church and of the Orthodox faith; Dean of the Great Catechetical School of Alexadria; Ecumenical Judge of the Holy Apostolic and Catholic Church; Thirteenth among the Apostles.

Which is, I'm sure you'll agree, slightly over-the-top, even for a prelate so impressively bearded as the late Shenouda. The title "Pope", by the way, is older by a couple of centuries than that of his Roman equivalent. Strictly speaking, we should refer to the latter as "Pope of Rome" to avoid confusion.

Precisely where the Coptic Pope comes in the global Christian pecking order is complicated by the fact that (as a consequence of various splits and schisms down the centuries) there are both Greek Orthodox and Latin claimants to the Holy Throne of St Mark, though neither have large numbers of followers. But traditionally Alexandria ranks at number three after Rome and Constantinople. To complicate matters, although the head of the church is patriarch of Alexandria his cathedral, as well as his official residence, is in Cairo. And has been since the eleventh century. But I suppose that when you've got a title as long as that one you're better off leaving well alone.


In recent decades the Coptic Pope has been considered the top-ranking member of the Oriental Orthodox communion, a somewhat ad hoc group of churches that does not form a clade (not being descended from an exclusive common ancestor) but which is united by a reluctance to accept the conclusions of the Council of Chalcedon of 451 AD. It's a long story; let's just say that it had something to do with the vexed question of precisely how Christ could be both God and man. It was to the fifth century church what the argument over gay clergy is to the 21st: divisive, unresolveable and ultimately a bit daft. About twenty years ago a high-powered group of theologians came up with a form of words that seemed to satisfy everybody (except the few remaining Nestorians). But the fifteen hundred odd years of mutual anathemas should stand as a warning to anyone who thinks that the current rows over sexuality and gender will be patched up any time soon.

Perhaps the dispute would have been patched up earlier had Egypt not fallen to the Muslims in 639AD, an event positively welcomed by many Egyptians as it meant seeing the back of the hated Byzantines with their inaccurate Christology. The history of the church thereafter was one of slow decline, however, as the Egyptian population slowly went over to Islam. The process took centuries and (arguably) is still going on. Egypt probably had a Christian majority well into the thirteenth century, and in the eighteenth there were still parts of the country speaking Coptic (the language of the Pharaoahs and still of the church's liturgy). Many observers detect signs of revival in recent years - an increase in recruitment to the monasteries, for example. On the other hand, Copts have faced increasing discrimination, attacks on churches and rising hostility from Islamists. It's reported that hundreds of thousands are now considering emigration.

I was intrigued to learn about the process that will be used to select Shenouda's successor. In some ways it's more open and democratic than the system used to choose the Archbishop of Canterbury (though even the Roman conclave is more democratic, if not necessarily more open, than that) but is also satisfyingly weird. The Synod of the Coptic Church (which corresponds to the House of Bishops in the Church of England General Synod) and a body representing the laity both take part in elections to discover three potential candidates. But the final choice is made by a boy who is led blindfold to the altar and invited to pull one of the names out of a hat. Well probably not a hat, but the same principle applies.

I suppose this vaguely resembles the former system in the Church of England, where two candidates for a vacant bishopric were presented to the Prime Minister to choose between.
Read the rest of this article

Why there should be civil partnership for heterosexuals

After much pre-publicity from Cardinal O'Brien and others - so much that the debate now seems tired and not a little boring - the Home Office has today formally launched its consultation process on its proposal to bring in same-sex marriage. You can contribute to it here.

No surprises. Despite the best efforts and hopes of diehard definitionalists, who imagine that by clinging to a word they can alter the direction of society, there's no sign that the government is thinking of abandoning its proposals. Quite the reverse, with Lynne Featherstone giving the Independent a "cast-iron guarantee" that same sex marriage will come into law by 2015 at the latest. The consultation is mainly about how the change will introduced, and in common with most such exercises is largely cosmetic.

I'm all in favour of the change. Contrary to the fears of some religious groups, the document makes a very clear distinction between religious and civil marriage. Same-sex weddings will not be taking place in any church or synagogue, even if the clergy would like to perform them, even though such venues have now been opened to civil partnership ceremonies. That final anomaly will, I've no doubt, be addressed in time. More importantly, there's no question of religious denominations being required either to perform or to canonically recognise same-sex marriages, and no suggestion that they ever will be.

Churches can continue to insist that true marriage can only be between a man and a woman for as long as it makes them happy.

But the government proposals would correct one inequality -- the exclusion of gay couples from civil marriage -- by perpetuating and indeed creating a new one.

Civil partnerships will, it is envisaged, continue to be available to same-sex couples. But heterosexual couples will not be able to contract civil partnerships. This is plainly absurd, illogical and discriminatory. If the rationale for extending full civil marriage to gay couples is, as the government claims, one of equality, then this will not be achieved by allowing them a special legal status denied to straight people. On the contrary, it is likely to cause resentment and lead to costly and unnecessary lawsuits.

At present, there is inequality on both sides. If civil partnership is regarded as a half-way stage towards state recognition of same sex marriage, to be superseded in time by "full" marriage (although the distinction is largely a semantic one) then this double discrimination makes political sense. It enables religious traditionalists to kid themselves that the historic institution of marriage remains sacrosanct while extending the substance of marriage to all partnerships. But once you open marriage to same-sex couples this ceases to be the case. Instead of one institution masquerading under two names you have two distinct institutions operating side by side, one equally open to all, the other confined to members of a sexual minority. This cannot be fair.

The consultation claims that there is no identifiable "need" for heterosexual couples to be able to contract civil partnerships. Yet the need must be at least as great as that for gay couples to be able to contract marriages. It might be said that couples seeking to formalise their relationship can get married. But equally, gay couples seeking to formalise their relationship and gain the legal protections and rights afforded to registered couples can have a civil partnership. Even if the need for heterosexual civil partnerships did not already exist, extending marriage to gay couples will perforce create it.

If there is a distinction between the concepts of marriage and civil partnerships it is that the latter does not come with the historical, cultural and linguistic baggage of the former. This, of course, is why many religious traditionalists object to gay marriage. They believe it will dilute the brand, reduce marriage to a legal contract between two persons (and thus, as John Millbank argues in one of the more thoughtful pieces I've read in favour of the status quo, render all marriages "gay marriages"). But it is also why some heterosexual couples resist marriage. They might crave the legal protection of inheritance and property rights given to registered couples, but they associate "marriage" with a history of sexual inequality or with bourgeois conformism. Many such couples would surely welcome the opportunity to participate in the more neutral and up-to-date institution of civil partnership.

I assume that's the problem, incidentally. The government is afraid of being seen to "undermine marriage", even as it accepts the logic of campaigners who see the inability of gay couples to marry as proof of continuing inequality and discrimination. On the face of it, and despite the Pope's paranoia, allowing more people to get married will not undermine the institution. It will make it stronger. But allowing more people to not get married, yet escape the legal discrimination that still exists against informal cohabitation, might well undermine marriage. It would no longer have much attraction to those who lacked a religious or cultural commitment to it; it would have a powerful, and perhaps in time more popular, rival.

But if the state's desire is to encourage stable, committed relationships, whatever they may be called, as the governement claims, then this shouldn't matter. In the ministerial forward to today's consulation document, Theresa May and Lynne Featherstone are made to say:

This is not about Government interfering in people’s lives, this is about providing choice for our modern society. Quite simply, if commitment and marriage is a good thing we should not restrict civil marriage only to opposite-sex couples.

Quite simply, if commitment and partnership is a good thing they should not restrict civil partnership only to same-sex couples. This is not about Government interfering in people's lives. It is about providing choice for our modern society. Read the rest of this article

The guilty rape victim: the law isn't always "fair"

The Guardian is predictably outraged that the Court of Appeal has "refused" to quash the conviction for perverting the course of justice of a woman who falsely retracted a rape allegation against her husband. The Independent, meanwhile, headlines its fairly sober account of the case with the editorialising words "the court ruling that shows the injustice of Britain's rape laws".

It certainly sounds bad. "Sarah", a victim of longterm domestic abuse who her supporters say was coerced into withdrawing the rape claim, was briefly jailed in Novemeber 2010 after a staggeringly unsympathetic judge gave her an eight-month sentence. She was released on appeal (after spending more than two weeks in custody away from her children), and an embarrassed Director of Public Prosecutions hastily rewrote the CPS guidelines to ensure that women in her position would not be charged in future. But the conviction remained.

"Sarah" and her legal advisers hoped, indeed expected, that the conviction would be overturned, arguing that she was both under duress and suffering from post traumatic stress disorder at the time of the trial. Although she had pled guilty to the perverting the course of justice, her lawyers contended, she would not have done so had she been properly advised or had all the medical evidence been available. And even under the existing CPS guidelines the prosecutors should have exercised their discretion and not brought charges against her. Therefore she should never have been given a criminal record.

None of these arguments found favour with the Court of Appeal. The Guardian's reporting of the case leaves little doubt that the decision is both outrageous and surprising. One QC involved with the case is quoted making the very peculiar assertion that "the law simply cannot tolerate a situation whereby such an injustice is maintained because of perceived constraints in the current legal framework." That sounds to me - perhaps I've parsed it inaccurately - as "the law cannot tolerate the law". The question, after all, is not whether Sarah's conviction, and especially her imprisonment, was unjust. Everyone involved seems to accept that it was. The point at issue was whether the conviction was technically unsafe, whether it was legally and/or procedurally flawed.

But it's easy to lose sight of that when you read that Sarah's husband (Terry) had been charged with no less than six counts of rape against her, or that (as her counsel told the court) he had forced her to work in a "massage parlour", ("this brothel"), confiscated her wages and then "proceeded to attack her emotionally for doing what she had done at his insistence and for his gain". Lord Judge, we read, sniffily dismissed the appellant's case as relying on little more than a "somewhat nebulous basis of unfairness". He sounds - or is made to sound - like the soulless embodiment of dry-as-dust legal formalism, denying justice on a technicality. Unimaginatively and inflexibly upholding a male-made law that does not comprehend, or even recognise, the experiences of women.

As one comment on the Guardian piece put it,

This decision is not justice. It is an appalling, sexist, inhumane and wicked "example" being made of a woman who found herself in too awful a position to be able to make any good decision, and who, by being in such a position through no fault of her own, inconvenienced the courts.

Looking at the actual judgement, however, things do not seem to be quite so clear-cut. For one thing, the facts as set out are open to more than one interpretation. While Sarah had undoubtedly suffered severe abuse and was, more generally, under the thumb of a jealous, manipulative and violent partner, it was far from obvious that she was acting merely out of fear at the time that she withdrew the rape claim.

The police gave her every opportunity to tell them that she was being threatened; indeed, they put her under what seems to have been considerable pressure to admit as much. Not only did she deny that Terry was threatening her, she insisted that she had other reasons for wishing to withdraw the complaint.

They discussed whether her husband had put emotional pressure on her, whether she was concerned about the position of the children, and whether her support network was limited. She was questioned whether he had convinced her to go to the police and withdraw the allegation, and whether he had an emotional hold over her. She was asked whether she had received sufficient support from outside agencies. Even at that stage the police pointed out that if the allegations were true and what she was telling the police now, that is, that the retraction was the lie, she could still tell them about it. She was adamant.

Judge thought it "inconceivable" that had she indeed been threatened with violence or rape if she did not retract the claim she would not have said so at the time.

Sarah claimed, indeed insisted, that she had accused her husband of rape because he disapproved of her work in the massage parlour and she wanted to get back at him. However unconvincing this might seem in retrospect, "this was the explanation that she chose to provide for her false allegations against her husband. She was later to repeat and amplify it."

Purely psychological pressure might, of course, amount to duress. But the relationship between the two protagonists seems to have been rather more complicated than simply one of abuser and victim. At the time she retracted the rape claim, Sarah had in fact returned to her husband. They had spent Christmas together, in violation of Terry's bail conditions. They had sex: "This was not rape, nor even reluctant acquiescence, but consensual sexual intercourse. It happened because, in her reported words, she 'wanted' to." When the breach of bail was exposed, she begged the police not to arrest her husband. He was actually on remand (for the bail violation) when she went to the police to withdraw the allegations, and thus not in a position to threaten her.

She seems to have decided, at that stage, to forgive her husband his sexual violence towards her and to stay together, partly for the sake of the children. She was determined to do whatever it took to prevent the case against him going to trial -- even at the risk (of which she was fully aware) of being put on trial herself. On this basis, and although it seems the police still believed that she had been raped, she was charged with attempting to pervert the course of justice by making a false allegation against her husband.

Shortly before the case reached court that summer she changed her story, telling her solicitor that she had indeed been raped. But even then she did not claim that Terry had been threatening her. Instead she explained that her husband and sister-in-law had both persuaded her that she would probably not go to prison for the lie, and that she didn't want to deprive her children of their father.

Her statements to the police at the time were, the judges concluded, "not consistent with any possible defence of duress."

And that's the key issue, really. "Duress", legally defined, is not the same as pressure. A pre-sentence report, compiled after extensive interviews with the defendant, described the marriage as turbulent, with a history of abuse. But it also stressed that she had tried to make it work for the sake of the children, and because he threatened to harm himself if she left him. It mentioned her feelings of "immense guilt" when her husband was arrested for raping her, and (contrary to what was said at the appeal) suggested that far from forcing her to work in the massage parlour he had disapproved of it from the start; it had "caused immense difficulties between the couple." He did put her under pressure to withdraw the allegation, but worries about the children, her "financial difficulties, lack of family support and isolation" also played their part.

Sometimes he would be so upset that he appeared to be having a nervous breakdown. Thinking of it now it was all a bit over the top, but at the time it made me feel all the more sorry for him. Although he had done what he had done to me, by this time I was feeling responsible for all the upset and worries that he had about missing his children and being frightened of going to prison. The children were upset because they couldn't see their father and it was basically all my fault.

Judge also mentions a letter which Sarah wrote to her husband in prison after she retracted the allegation, and which strongly implies that he had advised her not to: "I told you I would make it all go away and I will by doing what you said not to do. I want you home babe, we all miss you so much. I cry every night and every morning coz your not here."

This complex, dispiriting and all-too-common tale of domestic misery can't be fitted easily into the requirements of the legal defence of duress. In truth, her motivations were more complicated than that. Her feelings for him at the time were, despite the abuse, genuine. The police, it might be said, were themselves putting her under unconscionable pressure by threatening her with criminal charges if she refused to co-operate with a prosecution that she no longer believed in. But from their point of view, and the court's, there was a strong public interest in punishing crime, especially something as serious as rape.

The CPS has since acknowledged that it is inappropriate to bring charges against a woman in Sarah's position, and has revised its guidelines accordingly. But to say that in the circumstances it would have been better not to have charged her is not the same as to say that she was not guilty. She was properly convicted, even if she was not properly sentenced. Perhaps the law needs to be revisited. But it's hard to see how the defence of duress could be extended to cover cases like hers without making it too wide, and without enshrining in law a pseudo-Victorian view of women as helpless victims unable to think or act for themselves. In any event that would be a matter for Parliament.

We are left, then, with what Judge (dismissively?) called "the proposition that it is somehow not fair for the appellant to remain convicted." That has been the tone of the coverage, of most of the comments on Twitter and beneath the Guardian's report. But twisting the facts and the law so as to overturn a valid conviction, just because of an outcry in the Guardian, would set a dangerous precedent.

It seems to me, though, that this would be an ideal case for a Royal Pardon. Read the rest of this article

Will Young: not "bovred" about free speech?

This is a guest post by Rev. Julian Mann

Pop star Will Young speaks for his generation in declaring that vicars should be prosecuted for denouncing same-sex marriage.

In his exchange on BBC Question Time with Daily Mail columnist Janice Atkinson, Mr Young, 33, declared 'rightly so' in response to her concern that Christian and Muslim clergy who described same-sex marriage as 'abhorrent' could be taken down to the police station.

Significantly, last week UKIP raised concerns about the hate crime implications for those opposed to same-sex marriage on religious grounds: "If the government does legislate in this way, we believe that any criticism of same-sex marriage which may be expressed by someone on the basis of their faith could be classified as a 'hate crime'. That would be a grotesque assault on people's freedom of conscience."

Mr Young, who rose to prominence through being a contestant on the Pop Idol TV programme in 2002, is representative in his outlook of those who reached adulthood under New Labour. Freedom of debate is not a cultural value they are particularly bothered about. In fact, they are more bothered that their individual moral choices should be protected from criticism by the politically correct equivalent of a rigorously enforced blasphemy law.

Christian apologist Francis Schaeffer* (1912-1984) predicted the current moral indifference to the preservation of liberty. In his 1976 book How should we then live? he wrote:

I believe the majority of the silent majority, young and old, will sustain the loss of liberties without raising their voices as long as their own life-styles are not threatened. And since personal peace and affluence are so often the only values that count with the majority, politicians know that to be elected they must promise these things. Politics has largely become not a matter of ideals - increasingly men and women are not stirred by the values of liberty and truth - but of supplying a constituency with a frosting of personal peace and affluence. They know that voices will not be raised as long as people have these things, or at least an illusion of them.

Liberty as Western civilisation has been privileged to receive it is indescribably fragile without a firm societal commitment to the truth as God has revealed it in Jesus Christ.

*Schaeffer attracted renewed attention last year after being cited as a key intellectual influence by the former Republican presidential candidate Michele Bachmann [Heresiarch] Read the rest of this article

Labour and liberalism

Patrick Diamond and Michael Kenny urge the Labour Party to rediscover its "lost liberalism". They write:

We should not forget that the Labour party's liberal heritage has been just as important as its collectivist and statist tradition... It ought to rediscover the insights of early 20th century progressivism: welfare and equality as the basis of a society where all have the freedom to flourish.

Which early 20th century progressives they have in mind, they don't say. I must say a commitment to individual liberty and flourishing isn't the first thing I think of when it comes to early 20th century progressivism. The intellectual cutting edge of British socialism in the first half of the last century was more obviously characterised by enthusiasms for Stalin and eugenics. Diamond and Kenny describe the former Labour project as one of "redistributing power from corporate and bureaucratic elites", whereas it plainly involved redistributing power from corporate to bureaucratic elites. Which wasn't necessarily an improvement.

Sidney Webb, creator of the Fabian Society and intellectual founding father of the modern Labour movement, once wrote that "the perfect and fitting development of each individual is not necessarily the utmost and highest cultivation of his own personality but the fitting, in the best possible way, of his humble function in the great social machine."

Or consider George Bernard Shaw's claim that "the very existence of society depends on the skilled work of administrators and experts." Shaw thought it absurd that while even market traders needed a licence "any fool might be elected to Parliament". He favoured the vetting of candidates on the grounds that "without qualified rulers a socialist state is impossible."

What the Labour Party has lost in recent decades, is scarcely needs saying, is not liberalism but socialism. Read the rest of this article

Dominique Strauss-Kahn in Cambridge: Permission to Speak?

Dominique Strauss Kahn will be addressing the Cambridge Union this evening. Well, that's the plan. Personally I'll be surprised if he gets to say anything. To feminist campaigners the former head of the IMF and longtime key figure in French politics can only ever be an alleged rapist, a subform of life indistinguishable in all relevant respects to a convicted rapist. His presence in Cambridge, where he is supposed to be speaking about the global economy rather than his legal difficulties, is thus an insult to womankind. He must, and probably will, be howled down -- just as David Willetts was howled down late last year for the less obviously serious offence of being the minister in charge of higher education.

Yesterday vandals (or what the Guardian describes as "activists") defaced the Union building with anti-DSK slogans. "This house supports rape culture." Earlier today it was already prepared for the coming siege, with hastily-erected crash barriers and beefy security men wandering around in high visibility jackets. This lunchtime saw a rally of his opponents featuring, among others, Douglas Wigdor, lawyer for DSK's accuser (the New York chambermaid Nafissatou Diallo) and Cath Elliott of CIF fame. No doubt it was an uplifting occasion. CU Women's Officer Ruth Graham tweeted that it was "absolutely fantastic" and the speeches had been "incredibly moving".

DSK, you may remember, was released after the case against him collapsed, not because of some pan-rapist conspiracy but because his accuser's credibility was fatally damaged. He has, it is true, faced other allegations. Journalist Tristane Banon accused him of sexual assault on a TV chat show some years ago, and he was briefly arrested in France last month after he was linked to a Lille prostitution ring. He has long been rumoured to frequent upmarket brothels and has what some might consider to be an excessive sexual appetite. Cambridge's student feminists are more than welcome to dislike him. But he has never been convicted of anything and, thankfully, university women's committees do not get to decide questions of guilt and innocence.

In a typically narcissistic statement, Cambridge University Women's Campaign said that inviting DSK to talk about the global economy despite the allegations against him "feeds an existent culture of silence and shame around rape, in which alleged perpetrators are given a platform mostly denied to survivors of sexual violence". Furthermore, "By inviting him to speak, the Cambridge Union risks colluding with attitudes that condone or trivialise violence against women."

But he is not in Cambridge to promote his Don Juanish lifestyle, to offer dating tips or to speak out on behalf of convicted rapists everywhere. He's there to discuss the global economy, a subject that he might be said to know something about. As the Cambridge Union said in a statement, they've been trying to get him to speak for several years.

He was not invited after or as a result of the circumstances surrounding his departure from the IMF... Mr Strauss-Kahn is exceptionally well qualified to speak on some of the most prominent international headlines of 2012, namely the global financial crisis and the French Presidential election, and so we believe he will give a pertinent and interesting speech.

Hard though this must be for the protesters to understand, the fact that DSK has faced allegations of sexual misconduct does not negate his political expertise. By seeking to deny Cambridge students - the next generation of this country's leaders - the benefit of his insights into finance and diplomacy, his opponents are feeding their own "rape culture" which seeks to turn each and every issue into a discussion about sexual violence. The Union is not "giving a platform" to an alleged rapist but to the former head of the IMF.

The campaigners have determined, in effect, but because of what he is alleged to have done, he must henceforth be a non-person, with no right to speak publicly about anything. Ironically for a group who claim to detect a "culture of silence and shame around rape" their success in attracting support and publicity for their attempt to silence and shame both Strauss-Kahn and the Cambridge Union reveals the precise opposite: the peculiarly intense focus in our culture on sexual crimes, the increasing intolerance shown towards anyone facing even unsubstantiated accusations of sexual misconduct, the synecdoche that would reduce the former IMF chief to his hyperactive penis.

Rape is a very serious crime and rightly attracts heavy prison sentences. But it is not the only thing that matters, and it is not more important than the global economy. And it's ludicrous to see the international hounding that DSK has been subjected to since his arrest in New York last year as evidence of the trivialising of violence against women. On the contrary, for most of the world, Strauss-Kahn's professional achievements are now beside the point. He's the unshaven, shady-looking figure in the notorious photo doing the perp walk.

The protesters will no doubt dismiss the argument (made by the Union) that DSK has a right to freedom of speech. They, after all, have their own right to protest. But the right to protest is a dangerous thing when it becomes a right to silence, a right to bully, a right not only to prevent a speaker from speaking but (even more importantly) the right of others to listen to what he has to say. Read the rest of this article

Cardinal Sins against Logic

What really shocked about Cardinal Keith O'Brien's comments on same-sex marriage wasn't his opposition to legalisation per se -- we all know the Roman Catholic Church's position on this subject. It wasn't even his intemperate language (talk of "madness" and "human rights violations") or the absurd suggestion that changing the terminology from "civil partnership" to "marriage" was somehow equivalent to legalising slavery. No, what really shocked was the complete lack of any sense of reasoned analysis or coherent argument.

As the cardinal pointed out to John Humphrys, the Catholic Church has had almost two thousand years in which to ponder the nature and meaning of marriage. Can they really not have come up with anything better than (to quote O'Brien's Sunday Telegraph article) "marriage has always existed in order to bring men and women together"? Or (as he put it to Mr Humphrys) "it's quite simply natural for a man and a woman to be together for the procreation of children and their own mutual love"?

If O'Brien is a fair representation of the intellectual quality of the present leadership of the Roman Catholic Church in these islands, God help them. I almost felt sorry for him. I certainly felt sorry for the many thoughtful Catholics out there who find themselves being represented by such a prize nincompoop.

But let's look at what, for all the talk of human rights, seems to be his core argument: that the state has no right to redefine what the word "marriage" means, because marriage is always and everywhere the same, something that "long predates the existence of any state or government." It's an argument heard quite readily among campaigners against the small proposed change in the law. The Archbishop of York has said something very similar, albeit without resorting to O'Brien's grotesque slavery analogy. What it amounts to is the claim that something (which we happen to call "marriage") has a transcendent reality. That it exists outside of language and outside of the human cultures in which it has always been expressed. That it is both God-given and part of nature.

The obvious problem with this is that marriage is evidently not always and everywhere the same, either in external form or in internal meaning. If you say that "marriage" has to be between a man and a woman, you come up against the fact that a majority of human cultures, including that which incubated the Hebrew Bible, have allowed or even encouraged polygamy. To outlaw polygamy was therefore to change the meaning of marriage as it had been "clearly understood" in many societies throughout history. To insist on the permanence of the union is to ignore the existence in some cultures (such as Shia Islam) of "temporary marriage" - or indeed the prevalence of divorce in our own. If you stress that marriage is a legal state rather than an anthropological fact (or else cohabitation is also "marriage") then you have already conceded that it is something defined by the state or by the law rather than by nature. Or indeed God.

Even the Roman Catholic Church itself is not entirely consistent. It formally treats as adulterous second marriages in which the partners have not obtained a religious annulment of their first union. Couples in such marriages will be forbidden communion. (Or they might not; it rather depends, I gather, on how strict the local priest is in enforcing the rules.) It might refer to unauthorised second marriages as "irregular unions". Yet at same time the church tacitly concedes the right of the state to issue divorces and the right of couples in second marriages to use the terminology of wedlock, at least in normal life. You don't find O'Brien stamping his heels and accusing politicians of "redefining reality" by allowing people to divorce and then remarry. His church is quite happy to concede that a marriage might be at the same time legally valid and canonically void.

What O'Brien's argument comes down to is the contention that the one crucial defining feature of marriage lies in heterosexuality. It is not fundamentally about love, or companionship, or the transfer or property between generations, or the binding-together of wider kinship networks, or even the upbringing of children (because, after all, the Catholic Church does not attempt to prevent the marriage of post-menopausal women, provided they aren't divorced). No, marriage is marriage if and only if the parties involved in it are of different sexes.

But this must be nonsense, because whatever else it is, marriage is not (in most societies) synonymous with opposite-sex relationship. The law, and indeed the church, distinguishes between a validly contracted marriage that might have been entered into during a drunken binge at Las Vegas, and a non-formalised cohabitation that might have lasted twenty years or more. The former has greater legal standing than the latter. On what basis? Nature? Divine revelation? Morality? Children? No: merely because the one is legally and socially described as "marriage" and the other isn't. The married state is that which the law defines as the married state.

Modern Western society is much less concerned than were previous generations with securing the legitimacy of children (and besides, we now have DNA tests). Pre-marital cohabitation has become the norm. Nor, in most cases, is legally contracted marriage necessary to achieve the financial security of women and their children. Still less do we think in terms of dowries or wider kinship networks when conceptualising marriage. On the other hand, modern culture is very concerned with notions of love and companionship. It celebrates the couple, straight or gay, as an expression of intimacy, fidelity and sexual equality. Marriage is supposed to be a partnership of equals rather than a union of opposites. Even conservative religious voices are rarely to be found, today, demanding that wives submit to their husbands and not go out to work.

But if all that is true, then to assert that the essence of marriage lies in heterosexuality makes no sense. The essential elements of marriage, as most people today understand it, are as likely to be found in gay couples as in straight ones. And those elements of traditional marriage that were specifically heterosexual are either offensively outdated or (like sex, cohabitation and even children) can all be found, without social opprobrium, outside the married state. Marriage has become a choice, in other words.

What is left is a question of semantics. Since the legal implications of heterosexual marriage and homosexual civil partnership are close enough to be practically indistinguishable, the difference in terminology is no more than a polite legal fiction. Same-sex marriage already exists in all but name. To get as worked up as Cardinal Keith O'Brien over the choice of one word over another, when the substance of the thing being described is unaffected one way or another, is not the sign of a great theological mind. In fact, it suggests that His Eminence is something of an idiot. Read the rest of this article