MADE IN HEAVEN – but redefined by politics. Same-sex marriage bill.

February 3rd, 2013

How does the Marriage (Same Sex Couples) Bill define marriage?

The bill’s explanatory notes quote the definition in the canon law of the Church of England: “The Church of England affirms, according to our Lord’s teaching, that marriage is in its nature a union permanent and lifelong, for better for worse, till death them do part, of one man with one woman …” (Canon B30, paragraph 1). Since the Church of England is the established Church, its canon law is the same as general law.

How do the Catholic bishops define marriage?
The bishops say that under British law marriage is between one man and one woman: “that the commitment of husband and wife is meant to last for their lifetime; that there is a sexual aspect to the relationship (in the requirement of consummation for there to be a valid marriage); that the husband is presumed to be the father of the child carried by his wife; and that the partners to the marriage will remain loyal to the relationship to the exclusion of all other sexual partners”.

How does the bill justify introducing same-sex marriage?
The bill’s explanatory notes refer to the Government Equality Office’s consultation published in March 2012 on “Equal Civil Marriage” and the Government’s response on 11 December 2012. This confirmed that it would proceed with its proposal to introduce civil same-sex marriage and also permit religious marriage ceremonies for those religious organisations that wished to opt in to this provision.

How do the bishops sum up their objections to same-sex marriage?
The bishops write that for the first time in British history, the bill “fundamentally seeks to break the existing legal link between the institution of marriage and sexual exclusivity, loyalty, and responsibility for the children of the marriage”.

Marriage thus becomes an institution in which openness to children, and with it the responsibility on fathers and mothers to remain together to care for children born into their family unit, is no longer central to society’s understanding of that institution (as reflected in the law). The fundamental problem with the bill is that changing the legal understanding of marriage to accommodate same-sex partnerships threatens subtly, but radically, to alter the meaning of marriage over time for everyone. The bishops protest that a major constitutional change is being rushed through and point out that same-sex marriage was not mentioned in any of the mainstream political parties in their last election manifestos; there has been no referendum; no Green or White Paper; and when the Government launched its consultation, it did not ask whether the law should be changed, but how the law should be changed. They point out that the consultation did not take into account the views of over 625,000 people who signed a petition opposing the change.

Where can same-sex marriages take place?
The bill provides for same-sex marriages to be conducted either in religious buildings or on secular premises such as a register office or approved premises such as an hotel. In exceptional circumstances, same-sex marriages can be conducted elsewhere where one of the parties is housebound or on their deathbed or detained, for example, in prison. They can be conducted in sanctified buildings that belong to the Quakers or the Jewish religion.

Provision is also made for same-sex marriages overseas in the presence of a consular officer or of armed forces personnel.

The bishops point out that in cases where religious buildings are shared, there could be friction between a religious institution that wants to conduct same-sex marriages and one that opposes them. This, they say, could damage interfaith relations and engender a reluctance to share buildings and resources in the future.

Where can same-sex marriages not take place?
Under provisions in the bill, same-sex marriages cannot, by law, take place in a religious building that belongs to the Church of England or the Church in Wales.

Is the protection put in place for those religious institutions that don’t want to conduct same-sex marriages going to work?

Under what Culture Secretary Maria Miller has called a “quadruple lock”, the bill states that no religious organisation or representative is required to marry a same-sex couple; the 2010 Equality Act is amended so that discrimination claims cannot be brought against any religious organisation or individual that declines to marry a same-sex couple; the consent of a religious organisation’s governing body is needed if that organisation wishes to “opt in” to the new law and allow same-sex marriage to be carried out on its premises or with a religious ceremony, and that special provision is made for the Church of England so that it can continue to respect Anglican canon law. The bill makes it illegal for the Church of England and the Church in Wales to conduct same-sex marriages.

As clergy of the Church of England and the Church in Wales have a legal duty to conduct marriages, the bill introduces specific provision to ensure that this duty does not apply to same-sex couples. Were the Church of England to change its mind and want to celebrate same-sex marriages, it would have to put a measure before Parliament to change the law. The Church in Wales – which is no longer an established Church – would need an order moved by the Lord Chancellor.

The bishops believe that, in spite of the bill’s safeguards, religious organisations that decline to conduct same-sex marriages will be vulnerable to complaints to the European Court of Human Rights. In particular they cite the court’s recent ruling in the case of four Christian employees which they say “illustrates that the right to freedom of thought, conscience and religion (Article 9) does not provide adequate protection when there is a clash between it and other competing rights and interests.”

The bishops also hold that the bill’s meaning is unclear when it states that religious organisations may not be “compelled” to opt into same-sex marriage or “compelled” to conduct them. They state that religious organisations that marry heterosexual couples could be regarded as “public bodies” under the 1998 Human Rights Act and therefore face legal challenge if they decide not to opt in.

The bishops are also fearful that local authorities’ legal duty to “advance equality of opportunity” could result in refusing to award public contracts or grants to those religious organisations that do not conduct same-sex marriages.

What does the bill say about the Catholic Church?

The bill makes no mention of the Catholic Church. The bishops say that their concerns extend beyond the effect of the bill on the Catholic Church. They say the provision that makes it unlawful for the Church of England to conduct same-sex marriages sets a “dangerous” precedent for government interference with other religious organisations.

The bishops also believe that the institutional autonomy of religious organisations is undermined by the provision allowing individuals connected to religious organisations that opt in to same-sex marriages, to refuse to conduct or be present at same-sex marriage ceremonies. They suggest such a provision would be justified if afforded to all individuals but that directing it solely at religious organisations is disturbing.

Is there protection for individuals with conscientious objections to same-sex marriage?

The bishops say there is no explicit protection for individuals to express views about same-sex marriage without fear of criminal prosecution under public order legislation. It argues for protection for individuals working in the public and religious sectors.

Can same-sex marriages be dissolved?

Yes, but not on the grounds of adultery with a person of the same sex. According to the bill, adultery is only possible between members of the opposite sex. Similarly, a same-sex marriage cannot be declared void on the grounds that it has not been consummated. Only heterosexual couples can have their marriage annulled on grounds of non-consummation.

The bishops believe these differences will eventually change the meaning of marriage for everyone. Marriage has traditionally been understood as exclusive and faithful, with a sexual relationship at its heart. An unintended consequence therefore could be that the concept of fidelity as being necessary to marriage could disappear as indeed could the assumption that married couples have a sexual relationship.

What is the status of children in a same-sex marriage?
With heterosexual marriages, the law accepts that a child born to a woman during her marriage is also the child of her husband under what is called the “common law presumption”. But the bill states that there is no “common law presumption” with regard to the parentage of a child born to a woman during her marriage to another woman.

The bishops highlight this as further evidence that the Government is not seeking complete equivalence between same-sex and opposite-sex couples: “Those elements of the law of marriage are not arbitrary, archaic, or reactionary; they serve to show that marriage has an important and unique function. These provisions cannot be understood unless they are seen as intimately related to the conception and rearing of children. This view is one held particularly strongly by the Catholic Church, but it is not a uniquely religious view.”

The bishops quote the atheist philosopher Bertrand Russell: “But for children, there would be no need of any institution concerned with sex … It is through children alone that sexual relations become of importance to society, and worthy to be taken cognisance of by a legal institution.”

Will civil partnerships still exist?
Civil partnerships will still be permissible for same-sex couples. Couples already in civil partnerships will be able to have these converted to marriages by paying a fee.

The bishops point out that in not allowing heterosexual couples to have civil partnerships, the Government is ignoring the views of the majority who responded to its consultation (61 per cent to 24 per cent). They also argue that same-sex marriage is not needed as civil partnerships, in essence, entitle a same-sex couple to equivalent legal benefits, advantages and rights as heterosexual couples.

Will teachers in Catholic schools still be able to teach that same-sex marriage is wrong?
The bill does not address this point. The bishops believe that a change in the definition of marriage will affect the statutory duty of the Secretary of State to issue guidance on “the nature of marriage and its importance for family life and the bringing up of children”. They say that religious schools may therefore be compelled to teach a definition of marriage contrary to their own understanding.

What do the bishops say about same-sex parenting?
They recognise “that many same-sex couples raise children in loving and caring homes”.