Thursday, 15 March 2012

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 If civil partnership is regarded as a half-way stage towards state recognition of same sex marriage, to be superseded in time by "full" marriage (although the distinction is largely a semantic one) then this double discrimination makes political sense.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.