The Ecclesiastical Law Journal is published by the Ecclesiastical Law Society. The January issue contains an article entitled The Civil Partnership Act 2004, Same-Sex Marriage and the Church of England by Jacqueline Humphreys, Barrister.
The Editor of the Journal, Mark Hill, has given his permission for this copyrighted article to be reproduced by Thinking Anglicans, and you can read it in full here.
In an editorial in the magazine, Chancellor Hill comments on the article as follows:
Jacky Humphreys offers a detailed critique of the Civil Partnership Act. The Act will have a profound effect on our collective understanding of society. Her article merits thoughtful reflection. I have the misfortune of differing from her in one minor but significant respect. I do not consider that the existence of a civil partnership carries with it by implication the inference that it is a sexual union. Far from it — the partnership is financial in nature dealing with joint ownership of possessions and rights of inheritance. I would therefore consider any enquiry of a civil partner into the nature of his or her partnership to be unacceptably intrusive and a breach of the right to respect for one’s private and family life.
It seems pretty clear that the House of Bishops Pastoral Statment accepted Chancellor Hill’s view that a CP is not necessarily a sexual relationship. It is to be hoped that all bishops will also heed his view of the Human Rights consequences that follow from such a position.
The section of the article to which Chancellor Hill’s comment relates can be found here. However, it pays to read the whole article right through.
Following a detailed comparison of Marriage and Civil Partnership, the author concludes that:
In my view, the 2004 Act has an understanding of civil partnerships that are voluntary, permanent, sexual, monogamous, potentially mutually supportive and potentially nurturing of children in the same ways that a marriage is understood to be within English law. A civil partnership is probably also understood as requiring sexual fidelity in the same way marriage does, although confirmation of this will only be obtained once judicial implementation of the provision takes place. In these ways then, civil partnerships are conceptually the same as marriage.
The key conceptual difference between civil partnerships and marriage is that one is essentially same-sex and the other is essentially opposite-sex, with the corollary that children cannot be conceived naturally by the partners. There are some practical differences in law relating directly to that physiological difference, namely the absence of provision regarding non-consummation and adultery and, in the usual run of things, the conception of children. Therefore whether it is correct to regard civil partnerships as same-sex marriage depends on whether one regards those aspects of marriage that are the same as civil partnerships—voluntary, permanent, sexual, monogamous, mutually supportive, nurturing of children and probably sexually faithful—as more or less vital to the definition of marriage than the key difference, which is the sex of the persons entering the status. Is heterosexuality the essential conceptual component of marriage, or is the term ‘marriage’ in danger of becoming cheapened by this narrow focus on the gender of the participants?
The third part of the article deals with several specific practical issues: Clergy Discipline and Employment, Occasional Offices, Blessing Services, and the Admission to Communion of Notorious Offenders.
Her concluding section is reproduced below the fold.
As can be seen above, civil partnerships are in all important respects the same as marriage in terms of practical legal effect. Civil partnerships also share the overwhelming majority of the conceptual understandings of marriage that exist within English law. The key difference is, of course, the gender of the participants. The Civil Partnership Act 2004 does not, in any practical sense, undermine marriage. It does not change marriage law save for a very few technical details and does not change the legal consequences of marriage at all. The provision for gay and lesbian couples in civil partnerships is in almost all contexts the same as for married heterosexual couples. It is not better than for married couples. Therefore there is no sense in which the State support for marriage has been eroded. Nor is there any sense in which the status of marriage has become second best to civil partnerships. So in neither of these senses can it coherently be maintained that civil partnerships ‘undermine marriage’.
Further no coherent case has yet been advanced as to how a couple of the same sex living together in a voluntary, permanent, faithful relationship in any way makes another couple’s marriage more likely to break down. It is difficult to see how one couple’s marriage undermines another couples’ civil partnership, or vice versa. In fact the introduction of a marriage-like status for couples for whom traditional marriage is not an option is rather affirming of the status, rights and responsibilities of marriage. These are seen as such a good thing that more couples should have the opportunity of sharing in them.
What this Act does do, however, is challenge the a priori belief, held by some in the Church, that the social goods of marriage can be experienced and manifested only by heterosexual couples. Whether this belief is true is an empirical question. However, the evidence to determine whether or not same-sex partnerships can achieve the social goods of marriage will now be in the public domain. It will be interesting to see over time how the failure rate for civil partnerships compares to the high levels of divorce in heterosexual marriage.
Further, the fact of legal recognition of these relationships is likely to promote the general belief already widespread in society that gay partnerships can be just as stable, faithful, life-affirming, joyful and loving as heterosexual marriage can be. Therefore those in the Church who wish to maintain that homosexual partnerships are on scriptural or theological grounds a less good thing than marriage—or more bluntly that such relationships are sinful—will have to engage directly with this ‘best’ form of gay relationship. Cheap shots at gay promiscuity will not win the argument. For society and more liberal people in the Church to accept the conservative view that same-sex sexual activity is always wrong, the conservatives will have to show why the faithful sexual expression of love within this form of relationship, which looks remarkably like a marriage, is necessarily wrong. Therefore there is hope that the passing of this piece of legislation will force the Church to improve the quality of its debate on this issue.
© 2006 The Ecclesiastical Law Society