Wednesday, 6 February 2013

The Marriage Man: Cameron and heterosexual civil partnership

Never do the right thing for the wrong reasons.  You invariably end up by alienating your friends, annoying the people you're trying to court, and looking like a stinking hypocrite, all the while tying yourself up in the knots of your own inconsistency.  Observe David Cameron's predicament over same sex marriage.  The principle might be good, but the government's proposals are rushed, incoherent and, I increasingly believe, prompted by expediency.  Let's look at one glaring problem with the Marriage (Same Sex Couples) Bill.  In Prime Minister's Questions this lunchtime, Cameron admitted that the reason his government has refused to consider granting heterosexual couples the right to enter into civil partnerships, as their gay counterparts will still be able to after same-sex marriage is put into law, is that he fears that it will undermine marriage.

"Frankly I'm a marriage man," he said.  "I am a great supporter of marriage. I want to promote marriage, defend marriage, encourage marriage... I think we should be promoting marriage rather than looking at any other way of weakening it."

Cameron thus confirmed the opinion of Sir Tony Baldry, the Second Church Estates Commissioner (the C of E's man in the Commons) who suggested in yesterday's debate that  "policy makers considered that allowing heterosexual couples to enter into civil partnerships would undermine the institution of marriage."  A little later, Christopher Chope recalled a conversation during which the prime minister had expressed his distaste for "marriage-lite".

I have suspected as much for some time.  There is, however, another possible explanation.  Ben Summerskill, of the gay campaign group Stonewall, suggested at a Lib Dem fringe meeting in 2010 that opening civil partnerships to heterosexuals could cost the Treasury up to £5 billion in pensions and other entitlements.  This would only be true, of course, if there were many heterosexual couples who would like a civil partnership (and are prepared to accept all the rights and obligations of marriage) but who nevertheless don't want to get married.  Presumably they want the legal protections without the historical baggage of sexual inequality and bourgeois conformism that the word marriage implies to some people. 

If there are many such couples (as opposed to those who might prefer a civil partnership if offered the choice, but are currently getting married anyway) the why should a government and a prime minister desirous of promoting commitment want to prevent them?  Here's what David Cameron said in 2011 in his Conference speech announcing his support for "gay marriage":

Yes, it's about equality, but it's also about something else: commitment. Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other.

Civil partnership might look like "marriage-lite" to Cameron,  but it still represents real, formal, long-term commitment, something the prime minister says he wants to encourage, and is as difficult as marriage to dissolve.  The number of marriages being contracted each year has declined by a third in the past forty years.  If the prospect of civil partnership entices more couples to formalise their relationship - and there's a whole other debate that needs to be had about the rights of cohabitees - insisting on marriage or nothing is counterproductive.  And if it is about saving the Treasury money, as Summerskill believes, then Cameron's talk of prioritising commitment sounds rather hollow.

Until yesterday the official explanation for  creating a new legal anomaly was that there was either no demand or no "identifiable need" for legally registered opposite-sex partnerships.  This justification was flimsy in the extreme.  If there's no need for straight civil partnerships, because heterosexuals can gain the same legal protections by getting married, by the same token there's no need for same-sex marriage.  This, of course, is precisely what opponents of same-sex marriage argue, even those who opposed civil partnership when it was first introduced.  But the fact that marriage and civil partnerships have a similar effect is not the point; not if you support same sex marriage it isn't.  As for there being no demand, there clearly is.  In countries where equal civil partnerships have been introduced, such as France, they have proved very popular.

Cameron's statement is consistent, I suppose, with his earliear claim in that "I don't support gay marriage despite being a Conservative. I support gay marriage because I'm a Conservative". Civil partnerships were a Labour innovation, after all. But it's not consistent with either logic or fairness to continue to offer civil partnerships to gay couples who don't want to get married, while at the same time telling straight couples that it's marriage or nothing.  Nor has the government explained how its proposals are consistent with Article 14 of the European Convention, which specifies that laws concerned with human rights (in this case, the Article 8 right to a private and family life) must be "applied without discrimination." 

One of the striking ironies of yesterday's debate was many upholders of traditional marriage grasped these points very well, and were even prepared to consider radical solutions.  Matthew Offord said that the government's proposals would lead to "greater inequality" and were "hardly fair."  If we were truly seeking equality, said Andrea Leadsom, "surely we would also be legislating for heterosexuals to enter into civil partnership."  Craig Whittaker suggested renaming civil partnerships "state marriage", open them to everyone, and keeping "traditional" religious marriage "for its true intended purpose."  Christopher Chope preferred to abolish civil partnerships entirely.  Roger Gale proposed something even more radical ("I do not subscribe to it myself"):


The argument is that if the Government are serious about this measure, they should withdraw the Bill, abolish the Civil Partnership Act 2004, abolish civil marriage and create a civil union Bill that applies to all people, irrespective of their sexuality or relationship. That means that brothers and brothers, sisters and sisters and brothers and sisters would be included as well. That would be a way forward. This is not.

That would indeed be logical.  It would also be very difficult to implement.  It would imply a major change in marriage law, stripping the Church of England of its historic right to conduct weddings, for example, and requiring couples who wanted a religious marriage to go through two ceremonies.  Nor would it be in keeping with David Cameron's desire to defend traditional marriage.  As a way of dealing with the anomalies created by allowing same-sex marriage it seems like overkill.

Abolishing civil partnerships would be much easier.  Existing partners might be left alone (assuming they didn't want to "upgrade" to marriage) or they could be offered a choice between converting their civil partnership to a marriage or reverting to their former state.  No new civil partnerships would be created.  That would, no doubt, disappoint some couples; but as a quid pro quo for offering marriage on equal terms to everyone it seems a price worth paying.

I still think that allowing everyone the option of a civil partnership is the fairest and most liberal way to go.  Indeed, civil partnerships could be extended in other ways: to relatives (for example two siblings sharing a house, one of whom would otherwise face crippling death duties when the other died) and to arrangements involving more than two people.  That way, the state would validate, but not proscribe, people's living arrangements.  Marriage would remain confined to two non-relatives in an (assumed) sexual relationship.  If David Cameron wants to prioritise it he could offer tax incentives, as he has often promised but so far failed to deliver.

The current proposals are surely unsustainable.  A case involving a heterosexual couple refused a civil partnership is already before the European Court of Human Rights.  Now that the government has promised to legislate for same sex marriage, how can that case possibly be defended?  Cranmer raises another intriguing point: there are apparently proposals being debated in Brussels for mutual recognition of marriage and partnership across the EU.  It "would see all marriages and civil contracts conducted in any EU country become legally binding in all other member states".  So a heterosexual couple wishing to have a civil partnership will be able simply to pop across to France or the Netherlands for the weekend and fill in the paperwork.