In 2013 and 2014, at the time when the Government was redefining civil marriage, I wrote two essays on the matter that were published on the Libertarian Alliance blog and subsequently included in my collection of talks and essays The Radical Traditionalist Today. Here are those essays, very slightly revised. My conclusion was then and remains that there are now serious obstacles for traditionally-minded Christians (and indeed others who are traditionally-minded) who would want to enter into civil marriage, and my view is that civil marriage as currently constituted in England and Wales does not conform to marriage as that sacrament is understood by traditional Christians.
The trouble with gay marriage
I should begin with a simple statement of libertarian principle. The state has no business being involved in any way with marriage. It has adopted that role as a consequence of the compromise Henry VIII engendered when he merged Church and State. Since marriage within the Church of England is governed by the law of the land, and not simply by canon law, it follows that when marriage takes place between persons who are not members of that church, the state must act as registrar in order that those marriages have equivalent legal standing. One simple answer to the matter would be to disestablish the Church of England and thereby reduce marriage to a matter of private contract with an optional religious component, but this is not under consideration at present.
My purpose here is not primarily a discussion of marriage and same-sex relationships in their religious context, nor the case for the disestablishment of the Church of England. Rather, I want to point out that what is being proposed with regard to same-sex marriage has some important implications for those who are already married (ie. for those of the opposite sex) and further that its hamfisted legal construction is setting up a series of wholly avoidable and undesirable problems.
Let us not forget, however, that the institution of civil partnership has already established a position of legal equality between marriage and same-sex partnerships. Before civil partnerships, there were eminently legitimate complaints that the inequalities that existed in respect of inheritance and status as next-of-kin were iniquitous in a free society, and that there should be a means by which this could be redressed. In civil partnership, an institution was created that was distinct from marriage; indeed that was exclusively and completely a same-sex institution. For those same-sex couples who had said that they did not want marriage with its accompanying associations, but instead something that, while equal to marriage in law, was theirs alone to define, civil partnership could not have fitted the bill better, and its popularity since introduction would appear to have borne this out. Moreover, it was open to those churches that wished to do so to bless civil partnerships, and several have done so. Even the Church of England, which officially forbids such blessings, has a number of parishes where the letter of the law is observed but ways around the prohibition have been found through “services of prayer and dedication”[i]. At their most elaborate, such occasions are so close to the service for the blessing of civil marriage that were it not for the sex of the participants it would be difficult to tell the difference[ii].
Now, though, we find our legislators – without any apparent cause other than the Left’s shibboleth of “equality” – contemplating far-reaching changes to the nature of marriage between both same-sex and opposite-sex couples. Marriage as constituted at present has to do with the Christian viewpoint that the primary purpose of marriage is for the bringing of children into the world and their upbringing. Consequently, marriage is construed as a specifically sexual bond between husband and wife. This finds expression in the law in respect of the definition of marriage as a binding contract that is not entered into unless and until the marriage has been consummated. Non-consummation renders the marriage voidable under the Matrimonial Causes Act 1973, section 12a. Consummation has been defined, both in religion and in secular law, as the “ordinary and complete” act of sexual intercourse, a phrase which needs no amplification.
The problems with regard to same-sex marriage will by now be obvious to the reader. The partners cannot consummate the marriage according to the legal definition of that term. Nor is there any other equivalent sexual act that is universal to same-sex couples. Therefore, the government proposes to create a virtually unprecedented new definition of marriage that has no sexual component to it. Here is the relevant section of the government’s consultation document on the matter:
“2.16 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.”[iii]
In other words, the government can see the problem but has absolutely no idea how to solve it. It therefore proposes to foist the entire matter on to the courts to be resolved sine die.
The implications are interesting. As the law would stand under the proposal, for example, a same-sex married partner cannot commit adultery with another partner of the same sex, since any definition of adultery applies only to heterosexual sexual intercourse. But they can commit adultery against their same-sex married partner with a person of the opposite sex. What will constitute adultery or consummation if a definition needs now to be found that applies both to heterosexual and homosexual marriages? The implication is that acts of a sexual nature that fall short of sexual intercourse and which are not regarded as of paramount significance in such discussions at present may come to be seen in a whole new light. Even without my religious hat on, I cannot see this as in any way being a good thing for our society.
I note, incidentally, that Ben Summerskill, chief executive of the gay rights organization Stonewall, thinks that “This focus on consummation, in particular on the sexual element of it, seems to exercise heterosexuals more than most lesbian and gay people.”[iv] He does not seem to realize that the reason why this exercises heterosexuals is because we, too, are to be significantly affected by the proposed legislation, and in ways that are as yet impossible for anyone to quantify or anticipate with any accuracy. As such, this is a leap into the unknown. There is still time to pull back from the brink.
The new marriage and conscience
The Marriage (Same Sex Couples) Act 2013 is one of the most divisive pieces of legislation to have been passed for many years. While the most obvious aspect of this law – that it permits homosexual couples to contract civil marriage – has been widely publicised, there are further aspects whose significance is likely to prove extremely far-reaching.
In preparing this legislation, the Government appears to have considered that, in respect of those religious groups that object to homosexual marriage, it has been sufficient to allow those groups an opt-out, which it assures us is unlikely to be capable of legal challenge. The veracity of the latter claim is currently under test by Barrie and Tony Drewitt-Barlow, who intend to sue in order to compel the Church of England, to which they belong, to solemnize their marriage.
While the legislation takes account of religious groups that have an objection to same-sex marriage, it makes no provision for those people who are not religious but likewise object to same-sex marriage. They are expected and indeed encouraged to enter into civil marriage regardless of the fact that said civil marriage has been profoundly redefined by this law. Both they and members of religious groups that are officially opposed to same-sex marriage (including the Church of England and the Church in Wales, many Jews, almost all Muslims, some Buddhists, Zoroastrians and Bahá’is) are now placed in an extremely difficult position. This was, furthermore, something of which Parliament was clearly warned during the legislative process and that it chose to disregard in its rush to embrace the “equality agenda”.
The historical position of English law has been to define civil marriage according to Christian understanding, and in so doing to promote a position which is common to the Abrahamic faiths. That position is based on definitions of consummation (and thereby the validity of marriage), and of adultery (which constitutes grounds for divorce). A couple of the opposite sex who contracted civil marriage before 2013 could have that marriage blessed in a religious ceremony in the knowledge that they had not, in entering into civil marriage, engaged in a contract that contradicted the teachings of their religious faith. With the abandonment of consummation as a test of the validity of marriage, and the non-universality of adultery (since its definition applies only to members of the opposite sex), it can no longer be said that civil marriage for heterosexual couples does not involve the implicit acceptance of concepts that run directly counter to much religious teaching on the nature of marriage.
I will speak particularly of the Catholic faith here, since it is that with which I am most familiar, and I am aware that my remarks will have applicability to other faiths as well. In Catholicism, marriage is defined as a sacrament instituted by Christ. As such, definitions of marriage before the time of Christ, ie. in Jewish law, or in pre-Christian societies where the state undertook a role in marriage, are disregarded as irrelevant. The only definition of marriage that matters today is that which Christ gave us, and it is His standard by which other commentaries on marriage are to be measured.
Catholic doctrine holds that the state of marriage is opposed to all forms of unnatural, homosexual behaviour[i]. It is unambiguous on this point. While the Catholic Church does not permit divorce, it holds nevertheless that extramarital acts – of which adultery would be among the most serious – are to be seen as a violation of justice. It can therefore be concluded that adultery is highly germane to an understanding of the boundaries of Catholic marriage.
Our question now is whether a member of the Roman Catholic Church can in good conscience contract civil marriage in the light of the 2013 law. In so doing, the civil marriage that they would now contract is far from being opposed to all forms of unnatural and homosexual behaviour. Rather, it considers that behaviour to be on an equal footing with marriage. The Pastoral Letter “The Narrow Gate” of the Archbishop of Westminster on the passage of the 2013 law says,
“The Marriage (Same Sex Couples) Act has changed the legal definition of marriage in this land. No longer does this definition assume or support the complementarity of male and female, or expect sexual fidelity between the married couple, or see marriage as oriented towards conceiving and nurturing of children. The titles ‘husband’ and ‘wife’ are now officially gender neutral. This is the deconstruction of marriage as it has been understood for millennia. In effect, this Act completes the privatisation of marriage, so that its central content is whatever the couple wish to construct. Marriage is no longer a truly public institution, at the basis of society.”[ii]
This issue is more complex that it might seem. It should not be thought that the Roman Catholic Church advocates that its members should contract civil marriage in isolation from religious marriage. Rather, the Roman Catholic Church in practice requires that marriages take place in church and are solemnized by a priest, but also that the priest should hold a certificate or license to solemnize marriages from their local Superintendent Registrar. Failing this, it is required that a registrar should be present at the service and should simultaneously complete the necessary paperwork for civil marriage. Under either situation, a Roman Catholic priest effectively performs the marriage service on behalf of the state, under an arrangement that was first agreed in 1895. Whether he should continue to do so given the changed legal position has already been the subject of some discussion.
The present situation requires the acceptance of a moral contradiction that could not be more stark. The acceptance in conscience of civil marriage which directly opposes Catholic teaching on the nature of marriage is a matter of great seriousness. The registrar is taking from the words the priest says during the service those elements that fulfil the requirements of civil marriage as currently constituted. The priest and the couple marrying are therefore actively colluding in the act of civil marriage and not merely treating it as incidental (as would be the case, for example, in France, where church and state are separate, and the registration of a marriage is merely a bureaucratic act). In so colluding, they are forced into a position of the gravest moral compromise.
It may be responded that without civil registration, our Catholic couple would have no standing as married persons in law. Their marriage would be valid in Catholic canon law, but for civil purposes their standing would be as cohabitees. My personal view is that this is now becoming the only route for Catholics that would not involve moral compromise as to the principles of their faith. It would involve a degree of sacrifice – for the legal recognition of marriage brings with it a number of important rights that are not extended to cohabitees – but that is nothing new for Catholics in this country. It would also require the agreement of the Catholic hierarchy, which for all its vocal opposition to the 2013 legislation has tended to take the view that once a law is passed, it must be complied with. While no-one would advocate that Catholics should break the law, there is an important issue as to whether a law that has a distinctive moral element that is opposed to Catholic teaching may be the subject of conscientious objection whereby that law is shunned on those grounds.
It should be mentioned that the existing status of a number of Muslim marriages in England and Wales is of relevance. The Muslim marriage contract or nikah is not automatically recognized as a marriage in English law (in contrast to most Muslim countries, where it is so recognized), and the couple need to contract a civil marriage in order to be recognized as other than cohabitees. The situation is further complicated by the fact that the nikah may be polygamous.
Those Muslims who contract the nikah, and those Christians or others who contract a religious marriage that is not recognized by law, may feel that their religious contract is sufficiently binding in conscience as to constitute all the marriage that they would need. They will need to make additional safeguards in their legal arrangements to ensure that their spouse is treated in the way that they believe is fitting to them, rather than assuming the legal benefits that civil marriage confers, but this may well be an acceptable price for them to pay in order to avoid the moral compromise now involved in contracting civil marriage.
Couples who cohabit have already had to evolve private contracts that serve as alternatives to civil marriage, on whatever terms they may agree. It seems that those who hold religious beliefs that do not equate homosexual partnerships with heterosexual marriage may now be compelled to do likewise. Effectively, we have indeed seen the end of marriage as a public institution in our country, and its aftermath will be one of increasing fragmentation.
[i] See Fr. John Hardon SJ, “Marriage” in Modern Catholic Dictionary, consulted at http://www.catholicculture.org/culture/library/dictionary/index.cfm?id=34750