Monday, August 02, 2010

Guest Post by Tom Clement: On Marriage and Civil Partnership

Tom Clement is a friend of mine and fellow Liberal Democrat activist. I first met him way back in 2005 when he came to help on the Livingston by-election campaign. He originally wrote the piece below on Facebook in March last year.  When we met for the first time in ages at a party last week, I asked him if I could reproduce it here and he agreed. It definitely deserves to be seen by a wider audience.

I'm thrilled that the question of same-sex marriage is finally re-entering the public domain. I had feared that the introduction of the apartheid system of civil-partnership for same-sex couples and the wide spread use of the term ‘gay marriage’ to describe the new relationship would kill of the debate for far longer than has been the case.

The civil partnerships we currently have are an insult. They provide the same rights as marriage but crucially not the right to equal social or religious status. It is rather like allowing black people the right to catch the bus so long as it’s not the same bus as white people - and calling it equality.

Many of my gay friends have been promoting the idea that equality would best be served if the state recognition of marriage were abolished and replaced by a form of civil partnership open to both same-sex and mixed-sex couples. This view point is predicated on a belief in the separation of church and state and the notion that marriage is a religious concept and should not therefore be recognised by the state. 

The irony here is that the understanding of marriage as a religious concept stems not from social or ecclesiastical history but from the propaganda of a Religious Right that seek to turn a very human institution into a religious one in order that they might claim the right to define it. 

But marriage is not primarily a religious union; it is social. It is a union contracted between 2 - or sometimes more – people who agree to live their lives as a family. It is a concept predating all the major religions as well as the creation of ‘nations’ and ‘states’.

In Scotland, the law has always allowed a choice of civil or religious weddings. The requirement for a formal ceremony to solemnise a marriage was only introduced to Scots law in 1940 and this was a move aimed at providing security to married couples and reducing the number of legal cases contesting the validity of individual marriages. When, in England and Wales, the requirement for a formal ceremony came in to force in 1753, it was an Anglican ceremony that was prescribed but this blip in history only lasted until 1837 when civil marriage was reintroduced. 

Traditionally the church has viewed ‘religious marriage’ as just that – a religious approach to the human relationship that we call marriage. The Church did not dispute that a man and a woman who considered themselves married were indeed so provided that neither had been married to any other person still living and that it was not incestuous. This is not to say the Church doesn’t have particular ideas about the nature of wedlock or expectations as to the behaviour of it’s married members towards their husbands and wives. But, it was not until the Council of Trent in 1546 that the Roman-Catholic Church introduced the requirement for new marriages to be conducted by priests and this was largely a counter-reformation power game to increase people dependence on the Roman Priesthood. Other mainstream churches have continued to recognise marriages according to the old criteria.

As the law stands neither civil partnerships nor same-sex marriages can be performed by the clergy despite the desire of many clergy to provide such services to the LGB members of their congregations. Given the amount of animosity felt - perhaps rightly - by many members of the LGB community towards the Church, I find it ironic that we are now in a situation where the secular law requires the Church to discriminate against gay Christians. 

Marriage is not a religious concept – it is one of the many parts of life that religious people approach in a particular way - and if same-sex marriage is legalised, there ceases to be a need for civil partnerships in their current form. 

As a footnote, there is a genuine need for family law to be reformed to provide support and protection for those people who live a diverse range of lifestyles choices that do not lend themselves to marriage. Elderly sisters who’ve lived together their whole lives, people in fixed long term relationships consisting more than 2 people, the mother and her best friend and the child that they raised together all need support and protection; a new revamped civil partnership could serve all these people well. For too long, family law has been about how people should live; now it must be about how they do live.

1 comment:

Anonymous said...

Great article.

I've always been confused as to how the British aren't in some way forced by the EU recognises CPs from other countries where the CP is performed by people of different sex. In Europe the CP is not a gay thing but open to everyone and is usually a lesser partnership than a marriage. For instance if a different sex partnership from France comes to live and work in the UK then they would have no rights here. The only way they would , is to get "divorced" in France and get married in the UK. If they don't then they may be subject to 40% IHT , have tax allowances etc. Surely to force someone legally CPed in another coutry and force them to get married in the UK is wrong in order to be recognised for tax etc is wrong. Surely we must start looking at the international aspects of CPs and marriages, especially in the EU where we have the right to move freely among each country.

I also don't see how a British CP would have the same rights as a Portuguese or Duthc gay marriage for instance. Both these countries still retain their CPs, a lesser type of union with lesser rights. What is the CP equivalent to in these countries, surely their civil unions and not their marriage.


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