Should we Redefine Marriage?

Should we Redefine Marriage?

By Andrew Goddard

Recognising the Cultural Terrain

Over 185,000 people have already signed the Coalition for Marriage (C4M) petition which states “I support the legal definition of marriage which is the voluntary union for life of one man and one woman to the exclusion of all others. I oppose any attempt to redefine it”. Many of them, although by no means all of them, will be Christians and those of other faiths whose understanding of marriage and attitude to same-sex sexual relationships is shaped by their religious traditions and authorities. One of the main challenges is whether and how those who are not part of such communities or shaped by their narratives and worldviews can be persuaded this definition of marriage is something vitally important and the government’s proposals seriously wrong-headed. This article will first explore why many do not understand concerns about the government’s proposals and then suggest where the fundamental problem lies and why it should be of concern.

Underlying the challenge of persuading people outside faith traditions that something important is at stake is that popular views of both marriage and sexuality in wider society, in some pieces of legislation, and in parts of the church, have already accepted (often uncritically) a number of developments which weaken the arguments used by those seeking to ‘defend marriage’ and, in turn, make the case for “equal marriage” appealing, even a “no-brainer”. Seven in particular stand out.

First, as has long been recognised, one of the major shifts that has taken place is away from seeing marriage in terms of a social institution to seeing it in terms of personal relationships. So, people think in terms of their own marriage or that of friends and families. They do not think in terms of a legal and social (let alone divinely created) institution which is a social good protecting and nurturing particular human goods. Thus, one of the key arguments of advocates of change encourages people to limit their thinking about “marriage” to each person’s marriage. It asserts that, as nobody’s marriage is going to be damaged by allowing people of the same-sex to marry each other, to object is simply a sign of homophobia (as amusingly captured in the song “It’s All Because (The Gays Are Getting Married”).

Secondly, related to the reduction of marriage to the purely personal and relational is the framing of it as not in any sense a social norm and expectation. It is understood much more simply in terms of a personal choice. In the past, society expected a man and a woman in a committed sexual relationship, particularly one open to children or with children, to marry. Now marriage is viewed much more in terms of individual freedom and as one of a number of relationship options which people should be able to choose between. In such a context, with its consumerist mentality, it appears unfair to prevent certain people from being given “marriage” as a choice of the form in which to express their special relationship when others have it. The seemingly natural language for a gay or lesbian couple in love is not “will you civil partner me?” but “will you marry me?” so why should they be barred from marriage?

Thirdly, marriage and the birth and upbringing of children are no longer tied closely together in our society’s thinking or practice. Over 40% of all babies are born outside of marriage and the widespread view is that contraception and reproductive technologies which separate sexual union and procreation are either of no moral significance or even unqualified moral goods. To suggest that a couple entering marriage with no intention of having children have misunderstood the nature and meaning of marriage is to invite either ridicule or even opprobrium. In such a situation, it is not a great problem to redefine marriage to permit two people to marry even if they are inherently incapable of procreation because they are of the same sex.

Fourthly, legislation in relation to civil partnerships has already redefined traditional familial relationships. Although the civil partners are not spouses, all other traditional family relationships (eg parents-in-law, uncles, aunts etc) are created through a civil partnership whereas before they could only come into existence through marriage. Similarly, changes to adoption law have, infamously, prevented even faith-based adoption agencies from following policies that are limited to opposite-sex couples. With everything else redefined, why not marriage?

Fifthly, marriage no longer has a unique and special status socially and legally. This is due to various of the factors noted above – the rise in cohabitation, the equivalence of civil partnerships and marriage, the redefinition of the family etc – and changes in the tax system to remove any economic privileging of marriage.

Sixthly, the issue at stake in the present controversy – the gender of the two people who marry – has already been recognised as a personal characteristic which is not a fixed and natural given but a matter of social and legal convention. Under the Gender Recognition Act, someone who is biologically male can legally become female and vice versa. There are, therefore, already “same-sex” marriages where both partners are biologically of the same sex. However, the legislation contains what many see as a bizarre or offensive requirement that a couple who are in a marriage need to divorce if one of them is to be recognised in their new gender, although they can then immediately form a civil partnership without the usual legal preliminaries.

Seventhly, sexual orientation is viewed as a fixed given and a protected characteristic under equality legislation. Some people, in other words, simply are “gay” or “lesbian” and, it is claimed, they are being treated unjustly and denied their rights if they cannot legally marry. Of course, there are many more people (particularly women) who experience both same-sex and opposite-sex attraction rather than only same-sex attraction and there is currently nothing to stop anyone who is “gay” or “lesbian” legally marrying. Indeed the largest and most recent study on sexual identity in the UK showed that among those identifying as ‘gay’ or ‘lesbian’ 16% were married and living with a spouse while only 12% were currently or previously in a civil partnership. However, to exercise that freedom or right to marry (someone of the opposite sex) would be considered by most people not only as foolish but as effectively a denial of their very nature. The current marriage law is thus viewed as discriminating against a group of people by denying them a basic human right.

The strongest and most consistent opponents of the proposed redefinition of marriage are people who, on the whole, have resisted and refused to accept many, if not all, of these other changes in outlook. For those who have come to terms or happily embraced these social, legal and other developments, most of the arguments against including same-sex couples within marriage have little or no obvious force. Are we, then, left with no common ground? Are Christians and others simply to be accused of trying to impose their own religious views on secular society in their opposition to government proposals? The next part of this article argues that there is, in fact, an important issue which needs to be addressed and where the seven changes noted above do not decisively weight the argument in favour of legal change.

Recognition of differences as well as similarities is vital

The key claim and insight in the C4M petition is that what is being proposed is the redefinition of marriage. Supporters of the change express it in terms of extending rights or equality or permitting same-sex marriage. However, what it is, at heart, is a question of how, in and through law, we as a community should recognise, categorise and name the different patterns of human relationships in our society. It is not creating “same-sex marriage” but redefining marriage to include both same-sex and opposite-sex couples within it without distinction. There will, in other words, be no legal category or term for what we now – and have for centuries – called “marriage”: “the voluntary union for life of one man and one woman to the exclusion of all others”.

The question that needs to be thought through is, therefore, whether we as a society believe such a redefinition of our terminology is one that offers us a better description of reality and serves the good of society. The initial evidence suggests that what is being done is at best highly paradoxical and perhaps even incoherent. The government are proposing that what we still consistently compare and contrast with terms that are mutually exclusive – same-sex (homo-) and opposite-sex (hetero-) patterns of relationship - should no longer be distinguished in the law of our land as "civil partnerships" and "marriage". Rather, both should be classed as an undifferentiated whole and given the same generic name – marriage. Not a new name but the name which has always been used for the more common heterosexual relationship pattern. It is rarely helpful to eliminate existing categories by subsuming two (or more) quite specific, different and previously distinguished phenomena under the same term, particularly when that term was one previously used for one of those more specific categories. Recognition of differences as well as similarities is vital – we would not wish all motor vehicles to be identified as “cars” or all colours to be classed as “blue”.

The full force of this change is not immediately obvious to us because we still seek to mark this key distinction by means of a distinguishing qualifier, speaking of “same-sex marriage”. But the legal redefinition is not to create a new category with a new name – “same-sex marriage” alongside the old category of “opposite-sex marriage”. The plan is to abolish the old category and give its name to a quite different new category – “marriage” as a new gender-blind category. There will, in British society, be no legal term or distinct status for the male-female relationship and bond which seeks, among other goods, to provide a stable and positive framework for society’s continuation through procreation and which many still recognise as foundational to wider human society.

Because this is a legal redefinition which does not reflect common social usage, it may take some time to catch on but as it will have the force of law it is almost certain to impose itself on social discourse and action. It will thus, in certain contexts, be increasingly difficult if not immediately impossible to recognise and support marriage as traditionally defined once it has ceased to have legal definition. Those who seek to do so (for example groups offering marriage support or guidance only to opposite-sex couples, Christian and other bodies unwilling to employ in certain positions someone ‘married’ to someone of the same sex, teachers unhappy to teach the new orthodoxy to children) will increasingly find they are not just being dismissed as the new heretics who, in the words of the Equality Miniser, are “living in the Dark Ages”. They will soon risk facing legal challenges for seeking to maintain the traditional terminology.

Inevitably, because same-sex and opposite-sex relationships are different, the substance of the definition of ‘marriage’ will also have to change. This is most obvious in relation to consummation but may also have to be implemented in relation to sexual unfaithfulness as a legal ground for dissolution. Once again this is not simply welcoming on an equal footing those who have been excluded into what currently exists, it is the redefinition of what exists so that it no longer exists.

It does not take a great deal of foresight to realise that other major problems are quickly going to be opened up in relation to the current proposals. Firstly, there is paradoxically going to be, in the name of equality, the establishment of two legal categories for same-sex couples (civil partnerships will be retained but there will also be marriage) but only one (marriage) for opposite-sex couples. This is despite the fact that many more people form opposite-sex relationships. This disparity cannot be maintained for long.

Secondly, in order to include same-sex couples within “marriage” a fundamental division is going to be drawn in law between the definitions of civil and religious marriage. The redefinition of the former is driven by appeals to human rights and equality and a powerful minority lobby. The claim “civil partnerships are being established but there is no intention to introduce gay marriage” took less than a decade to be abandoned wholesale by political leaders. It is therefore not surprising that many think “civil gay marriage is being established but there is no intention to introduce religious gay marriage” will soon also come under attack.

Thirdly, and similarly, it was only three months ago that the law removed the initial legislative assurances that civil partnerships - as civil ceremonies - could not happen on religious premises. Again the argument was driven by appeals to combating inequality and religious freedom: why should those who wanted civil partnerships on religious premises and found religious premises willing to hold them be prevented by law from so doing? Given this line of argument, there is absolutely no logical reason for preventing two people of the same sex being free to enter civil marriage on religious premises.

As noted in the first part of this article, various changes in understandings of marriage and sexuality have taken place over recent decades. Where these have become established, they can make limiting marriage to opposite-sex couples appear anomalous or worse. Appeals to ‘uphold marriage’ which ignore those changes and work from other understandings certainly have their place but they start with a severe disadvantage. They also risk missing the fundamental question which needs to be addressed. This is a question on which we can try to reason together across different faiths and different attitudes to marriage and homosexual relationships: do we really wish our law to redefine marriage so that legally, and increasingly socially, we have no terminology to speak precisely of that particular way of life which is “the voluntary union for life of one man and one woman to the exclusion of all others”?.

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