If today's proposals go through, gay couples wishing to formalise their relationships will soon be able to choose between marriage and civil partnerships. But for heterosexual couples there will be no such option - it will be marriage or nothing. So how does the government attempt to justify this flagrant discrimination? It doesn't.
The official response to this year's consultation, released today (pdf), admits that the majority of those who expressed an opinion argued that civil partnership should be extended to all, while others thought that equality could be achieved by abolishing civil partnerships altogether. It notes the "concern" contained in the Church of England's response that allowing civil marriage for same sex couples without allowing civil partnership for heterosexuals would be "legally unsustainable." It points to a submission from transsexual representatives, who drew attention to an anomaly that would result: if one partner in a civil partership legally changed sex, they would be forced to marry, whereas if one partner in a marriage changed sex they could stay married. But it is unmoved: "We remain unconvinced that extending civil partnerships to opposite sex couples is a necessary change. We will therefore be retaining civil partnerships for same-sex couples only."
It's not clear how they reached this conclusion, since there are clearly many people who do want to have civil partnerships, as the government acknowledges. The statement is a remarkable piece of doublethink:
When civil partnerships were introduced in 2005, they were created to allow equivalent access to rights, responsibilities and protections for same-sex couples to those afforded by marriage. They were not intended or designed as an alternative to marriage. Therefore, we do not believe that they should now be seen as an alternative to marriage for opposite sex couples.
Opposite sex couples currently have access to marriage, either via a civil or religious ceremony, which is both legally and socially recognised. We understand that not all opposite sex couples wish to marry, but that decision is theirs to make and they have the option to do so if they wish. Through the responses received to this consultation, it has not been made clear what detriment opposite sex couples suffer by not having access to civil partnerships.
The "detriment" they suffer is simple: the inability to contract a civil partnership, which they may see as preferable to marriage. Until now, gay couples have suffered an equal detriment. They couldn't get married, even if they preferred it to a civil partnership. So, although there was discrimination, it went both ways. It balanced out (sort of). Now there's imbalance, and that's a "detriment" in anyone's lexicon.
The government is in a logical mess here. Either civil partnership and marriage are equivalent, in which case there's no need to have equal marriage; or the two are distinct, in which case both should be open to all or else there should only be one type of legally recognised union. Why retain civil partnerships for gay people? Here's the government case:
Since their introduction in December 2005, over 50,000 civil partnerships have been registered. Civil partnerships are not available to opposite sex couples and legislation specifies other prohibitions on who can form civil partnerships, for example, siblings. But differences remain and at the time of introduction it was clear that civil partnerships were distinct from marriage.
So the two are not the same. It's not just a matter of language.
Having taken the range of views into account, we intend to proceed with the proposals in the consultation document to retain civil partnerships for same-sex couples only, including continuing to allow civil partnerships on religious premises. This is because we acknowledge the important role that these unions play in the lives of many couples. Civil partnerships are a well-understood union, which have been become part of people’s everyday lives and society in general. We see little benefit from removing them.
If civil partnerships are well-understood, and part of "society in general", it is wholly illogical not to extend them to "society in general". It's true that they began as the gay alternative to marriage (largely, let's remember, it was a way of answering religious objections to same-sex marriage by saying "it isn't marriage"). But in retaining them now, the government is confirming, and strengthening, their different status from marriage.
In support of maintaining the option of civil partnership for gay couples, the government quotes the Law Society:
It would be unfair and legally tenuous for those couples to be faced with the choice of either being married or no longer being in a formalised relationship. We can see no practical benefit in dissolving civil partnerships.
But the Society also responded to the question of equal civil partnerships. The statement doesn't appear in the government response, so here it is:
The Law Society believes that not opening up civil partnerships would constitute discrimination against heterosexual couples by denying them equal access.
We cannot see any reason why civil partnerships should not be open to heterosexual couples who want to formalise their union without the connotations that the term ‘marriage’ can bring. The issue is equal access and non-discrimination. We therefore disagree with this proposal.
The government has completely failed to address, let alone answer, the question of how banning heterosexual couples from civil partnerships will accord with equality and human rights legislation. The Law Society response, as well as that from the Church of England, suggests strongly that making such a case would be very difficult. I'd love to see the government's legal advice on this issue, but so far it hasn't been produced.
So what arguments does the government have? The first is that the change is "not necessary", a point that would apply equally to same-sex marriage itself. Except that what the government actually means is that they don't think it's necessary "to open up civil partnerships to opposite sex couples in order to enable same-sex couples to get married." The consultation, it's argued, was only concerned with that narrow question - this despite the fact that the question about heterosexual civil partnership (HCP) was asked. The government also contends that extending civil partnership to opposite-sex couples would involve "a wider process of reform." It wouldn't. It would just involve more people.
When I last wrote on this issue I suggested that the real reason for not allowing HCP was that it was afraid of being seen to "undermine marriage":
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.
While the consultation response doesn't quite admit this, it does perhaps let the cat out of the bag with this:
A number of organisations, including the Hindu Forum, indicated they did not think that civil partnerships should be available to opposite sex couples. Manchester Rabbinical Council felt that allowing more people to enter a legal relationship other than marriage would weaken marriage further. The Catholic Bishops Conference of England and Wales stated that “it does not give recognition to any other partnerships or legal unions as having an ethical or legal equivalence with marriage. The Church opposes … extending civil partnerships to opposite sex couples who can marry”.
This chimes with David Cameron's repeated assertions that he supports gay marriage because he supports marriage, and that allowing same-sex marriage would strengthen the institution. He thinks that marriage that is open to all couples would prove more popular. Perhaps he even believes that marriage equality would strengthen its attractiveness to heterosexuals. He might even be right. But "you've got no choice" is a poor argument to offer on behalf of marriage, especially if a minority of couples do have a choice and many are choosing to get married. In any case, I suspect this mean-spirited piece of moralising will backfire. If equal civil partnership isn't added to the bill, I can't see how it will survive the inevitable legal challenge. Would any lawyer like to explain how it might?
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