Same-sex couples who want to embrace marriage should be a cause for rejoicing in the Christian Church

There is a quiet rumbling that has been gradually getting louder for the past decade or so, and which is only now breaking the surface and demanding attention. It is one of the remaining discriminations suffered by thousands of people in Britain each day, and finally society’s attitude towards it is beginning to change. It is the equality of homosexual and heterosexual relationships, and this week the issue was dragged to the foreground by, most surprisingly, influential Anglicans of the Church of England including the Bishop of Salisbury and led by Dr Jeffrey John, Dean of St Albans, who has been a vocal supporter of gay rights since 2003. With others echoing him, Dr John argued that “The Church calls marriage holy or sacramental because the covenant relationship of committed, faithful love between the couple reflects the covenanted love and commitment between God and his church.” Therefore, he said, surely “there are same-sex couples who want to embrace marriage should be a cause for rejoicing in the Christian Church.”

Of course, Dr John has a valid point. In marriage it doesn’t matter about class, education, wealth, disabilities, skin colour or ethnicity, so why should it matter about gender? Because all these other discriminations have been challenged and broken down, and now it’s time to tackle the prejudices surrounding same-sex marriages. Since 2005, same-sex couples have been able to enter into a civil partnership in the UK, with the same rights and responsibilities of a civil marriage, but it is not recognised as ‘marriage’, especially not by the church. By creating a new term for the a same-sex marriage as ‘civil-partnership’, these relationships are not being accepted into society as they appear to be, they are being further excluded from equality of heterosexual relationships as they are deliberately being recognised as something other than ‘marriage’.  Finally some brave members of the church have spoken out and added to the voices of the LGBT community who are tired of the discrimination and who share the hope that the government will accept the proposals to legalise same-sex marriage in the UK by 2015.

It is completely baffling, in my opinion, that heterosexual and homosexual relationships are not recognised as equal already. There are some absurd prejudices that exist in society which betray the fear and homophobia surrounding gay marriage. The most common is the idea that same-sex couples shouldn’t be allowed to marry as they cannot produce children – in which case they should probably break it to elderly people and infertile couples that they too will be forbidden from marriage. The other great one is that homosexual couples will raise homosexual children – because, of course, straight couples only raise straight kids. Following on from this, the powers that be who stand in the way of gay marriage argue that kids should grow up in a home which has both a male and female role model – so what about the millions of single parents in the UK, so perhaps they believe their kids should be taken away from them. And how about the idea that allowing same-sex marriage would cheapen the sanctity of marriage? In which case, would someone like to explain to me why the church and the state recognise the shotgun weddings of Britney Spears and Kim Kardashian, but refuse to recognise the loving relationship of a same-sex couple who have been together for twenty years?

So we should take immense hope from the fact that some members of the Anglican church are taking the lead in embracing change for once. It seems the church is beginning to recognise that change is inevitable and that if they are to continue their good work they will have to accept the change, just as they have with contraception and divorce. Such a loud voice from such an unexpected place only emphasises how the attitudes of society towards this issue are changing.

Pride London reported attracting 30,000 people to the event in London in 2004, this year they are expecting over a million people joining together to celebrate diversity, regardless of their gender or sexual orientation. This is an exciting time for the members of the LGBT community, and news that the church is speaking out in support of same-sex marriage is hopefully a sign of more equal times to come.

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• http://profile.yahoo.com/OLBQYDVLI2SP3WEDKISREV2BN4/ Jim

  “D v A had nothing to do with penalising homosexuals and everything to do
  with the legal understanding of the common intent of a valid marriage.”

  I agree completely – so long as you append “in 1845″ to that sentence. Lushington could not have conceived of the notion of same-sex marriages, so it would be rather odd to rely on his judgement for determining same-sex consummation.

  You state that “there are clearly no plans to do away with the consummation requirement”. I don’t know how you have reached that conclusion, and I can neither confirm nor refute it. But what I would say, as I said above, is that it is almost certainly not important; particularly not as important as you make out.

  According to ONS figures for 2010, there were 119,589 dissolutions in England and Wales, of which just 156 were from decrees of nullity. 99.9% of marriage dissolutions come from divorce petitions. The provision for annulment stems from an earlier time – the time of Dr Lushington – and it is no longer relevant.

  Given your knowledge of the statutes in this area, you are certainly aware of the distinction between void and voidable marriages. Failure to make explicit the terms of consummation may make same-sex marriages voidable, but it would not make them void.

• David Shepherd

  Even if we accept the relatively minor volume of decrees of nullity, my focus was on the legal understanding of the common intent of a valid marriage. Lushington’s definition from 1845 has stood the test of time (e.g. Baxter v Baxter 1948 and others) and informs the standard proof of adultery (accounting for 6,595 cases, or 16 per cent of divorces in 2010) which only admits of heterosexual vaginal penetration.

  From the Equal Marriage Consultation: ‘Specifically, non-consummation and adultery are currently concepts that are defined in case law and apply only to marriage law, not civil partnership law. However, with the removal of the ban on same-sex couples having a civil marriage, these concepts will apply equally to same-sex and opposite-sex couples and case law may need to develop, over time, a definition as to what constitutes same-sex consummation and same-sex adultery.’ This is a fudge aimed at avoiding the need to establish a common orientation-free definition of both.

  So, go on Jim, have a stab at a legally resilient orientation-free definition of consummation and adultery.

• http://profile.yahoo.com/OLBQYDVLI2SP3WEDKISREV2BN4/ Jim

  Thank you kindly for your repeated invitations to satisfy your prurience by providing you with a “legally resilient orientation-free definition of consummation”. I regret that I shall have to decline. If that means you are no longer interested in my comments, then I’m sorry.

  I have to say, I’m rather confused as to why you feel such a thing would be necessary. You take issue with the fact that the consultation document states that “case law may need to develop, over time, a definition as to what constitutes same-sex consummation and same-sex adultery.” But I don’t understand how you can characterise this as a fudge, since that is exactly what happened with regard to heterosexual marriage (and is how case law in general acts to refine and define the provisions of statutory law).

  The 1857 Act provided for divorce on grounds of adultery, but it doesn’t make explicit what constitutes adultery. You have to wait until Clarkson v Clarkson (1930) which established that adultery is voluntary sexual intercourse between two persons of opposite gender. And the necessity of penetration is addressed some 25 years later in Saps-Ford v Saps-Ford (1954) and Dennis v Dennis (1955). By my reckoning, that means there’s no rush to nail down the detail of what constitutes same-sex adultery until around 2110.

  It’s interesting to note, along the way, that the ruling in Clarkson requires persons of opposite gender. As far as I’m aware (and I stand ready to be corrected on this), one cannot cite a spouse’s sexual conduct with a member of their own sex as adultery when petitioning for divorce. Does that mean that a wife can’t divorce her husband if he has an affair his male colleague? Of course not. But it must be cited as unreasonable behaviour rather than adultery. Which, in my view, goes to show that these definitions you keep pressing for are rather less important than you would have us believe.

• David Shepherd

  Jim:

  Your reply merely demonstrates the considerable body of case law upon which you should have been able to develop a definition based on equivalence (if any had really existed) between marriage and the proposed same-sex parody of it.

  It’s only because there is no genuine parallel (proven by the glaring omission of consummation and adultery references in Civil Partnership legislation) that you resort to evasive tactics: calling me prurient for challenging you to definitive detail, after chiding my coyness for a lack of definitive detail in an earlier post. You and the presumed beneficiaries of these muddled proposals should realise that you really can’t have it both ways!

  However, we can discuss further (or elsewhere) when you decide to reason without resorting to the self-contradictory tactics that you’ve employed here.

• http://profile.yahoo.com/OLBQYDVLI2SP3WEDKISREV2BN4/ Jim

  David, I was irked by your repeated goading to provide a definition which I feel is entirely unnecessary. As a result, I responded with a childish dig, which you quite rightly called me on, and for which I apologise.

  However, I do think it unfortunate that you proceeded to use your justifiable indignation to sidestep the argument I made subsequently; and yet still managed to call me both evasive and self-contradictory.

  To obviate further misunderstanding, herewith a summary of my argument, sans tactics:

  1) Statute law does not need to provide definitions of same-sex consummation and adultery, just as it did not provide them for heterosexual consummation or adultery. That, if it is necessary at all, is the role of case law.

  2) Nullity is a central concern of ecclesiastical matrimonial law, by virtue of the effective prohibition of divorce. Since we are discussing civil marriage, and in light of the 1973 Act, the question of nullity is, at best, an interesting historical quirk, but most likely, entirely irrelevant.

  3) The current legal definition of adultery is clearly nonsensical and inadequate, since it fails to recognise the possibility that a spouse may be unfaithful with a person of the same sex. Despite this, the provisions of the 1973 Act are sufficiently robust that a divorce petition would succeed in such a case, even though it would not be possible legally to call it adultery.

  4) For some time now, there has been a general consensus of legal thought that the adversarial system, and the requirement that one party be at fault, does more harm than good when dealing with the dissolution of a marriage. The focus on adultery is a throwback to the days of ‘criminal conversation’. These days, infidelity is seen rather more as a symptom than a cause of matrimonial breakdown.

  Lastly, as a heterosexual, I expect to share in the societal benefits of a more inclusive approach to marriage. I don’t expect to benefit directly myself.

• David Shepherd

  I’ll tackle your summary in more detail later, but an earlier remark caught my
  attention: ‘By my reckoning that means there’s no rush to nail down the detail
  of what constitutes same-sex adultery until around 2110.’

  Now let’s see. 16 percent of divorces cite adultery as evidence of irretrievable breakdown. According to the ONS study, ‘Civil Partnerships Five Years On’, ‘In 2008, there were estimated to be around 170 people whose civil partnership had been dissolved, rising to around 759 such people in 2010. These figures are expected to increase over time.’ So, allowing for the increase in divorce rates, that’s nearly 9000 same-sex partners by 2110, all awaiting the detail that you’re in no rush
  to provide.

  BTW, the impact assessment states: ‘There may be costs for training the judiciary and court staff on the amended grounds for on which a marriage may be voidable
  including the concepts of non-consummation and adultery. We will be asking
  specific policy questions on this issue as part of the consultation’.

  So, your trivialisation of this issue is unwarranted.

• http://profile.yahoo.com/OLBQYDVLI2SP3WEDKISREV2BN4/ Jim

  My point was that legal divorce on grounds of adultery was instituted in 1857, but the case law around what precisely constitutes adultery was still being established a century later. The legal definition of adultery in place today comes from the judgement in Clarkson – 70 years after the first Matrimonial Causes Act. Did people get divorced during these years? Certainly. Did they get divorced on grounds of adultery? Absolutely, since that was the only legal remedy. Evidently no-one challenged the commonplace understanding of what adultery was during that time. It wasn’t until such a challenge was made that it was necessary to codify what constitutes adultery. That is how case law works. That is how case law will work in the case of same-sex marriage.

• David Shepherd

  ‘Legal divorce on grounds of adultery was instituted in 1857′. Wrong. The Act empowered ordinary courts to grant full divorces that could already be procured legally (albeit at great cost) by a Private Act of Parliament in earlier years.
   
  The ground of adultery did not change. Prior to the Act, marriage itself was governed by ecclesiastical courts and canon law. The 1857 Act and the subsequent decisions still drew upon existing laws, jurisprudence and the historic understanding of adultery in order to apply it to the civil sphere.
   
  Since then, in the civil sphere, what we now mean by consent, consummation and adultery is has been refined into a cogent body of jurisprudence derived from the historic institution of marriage. Case law did not simply apply equivalence where it was clearly unwarranted.
   
  Therein lies the critical difference between the proposed view of how case law will develop a definition of same-sex adultery/consummation and the reality that case law recognises the existing bases of the institution of marriage: genuine consent and consummation as previously defined before trying to resolve specific cases. The use of case law as you describe would be mere conjectural innovation.

  You may ignore the religious references, but as Lord Penzance said of another great disparity with the historic institution of marriage in this country (Hyde vs Hyde): ‘It may be, and probably is, the case that the women there pass by some word or
  name which corresponds to our word “wife.” But there is no magic in a name; and,
  if the relation there existing between men and women is not the relation which
  in Christendom we recognise and intend by the words “husband” or “wife,” but
  another and altogether different relation, the use of a common term to express
  these two separate relations will not make them one and the same, though it may
  tend to confuse them to a superficial observer’

  That’s what these proposals are trying to do.