Thursday, 1 November 2012

A Christian case for Equal Marriage

Ekklesia has published a research paper by Savi Hensman titled Should equal marriage be rejected or celebrated by Christians?

The full paper can be downloaded as a PDF file here.

The paper is a response to Gay marriage and the future of human sexuality by John Milbank published last March.

The possibility of opening up marriage in Britain by law to same-sex couples has been criticised by some Christians but welcomed by others. One of the more thoughtful critics is theologian John Milbank, who has eloquently expressed some common arguments against change. This response by Savi Hensman suggests that, while he raises important issues, his analysis is ultimately flawed. Taking into account such topics as tradition, sexual ‘complementarity’, childbearing and sacrament, there is a strong case for equal marriage.

Two other papers by Savi Hensman have been published at the same time:

Posted by Simon Sarmiento on Thursday, 1 November 2012 at 10:14am GMT | TrackBack
You can make a Permalink to this if you like
Categorised as: equality legislation
Comments

John Milbank: "Equally, the increased crisis of the masculine psyche suggests that we cannot just
remove by fiat the greater propensity of men towards danger, risk, physicality,
objectivity, transcendence and the need to be in charge."

Crisis? Or resistance to changing roles and the de-construction of stereotypes? Why should men feel crisis if women also possess some of these qualities? Why should they "need to be in charge?"

Excuse me!

Surely we have moved on from the idyll of the fifties housewife. Surely we have come to recognise that many of those stereotypes were patriarchal, restricting women to certain social roles.

"The greater propensity towards danger and risk"... there are female fire-fighters, female police officers protecting us on the streets, sometimes to the point of sacrifice and death, female mountaineers, female prison officers, female soldiers.

And let's not forget that for most of history about the most dangerous and risky thing you could do, was to give birth to a child.

"Physicality"... women are every bit as physical as men - in some natural senses more acutely aware of their physicality through menstruation - and capable of physical achievements which are not the exclusive domain of men. I play for a woman's football team, and I think John would discover a great deal of physicality if he tried to play against us :)

(continued...)

Posted by: Susannah on Thursday, 1 November 2012 at 9:54pm GMT

continued...)

These are simply stereotypes that can "contain" women, or limit what women may be, and honestly... they seem so old-fashioned in an age when women are stepping up to opportunities, and are able to say, actually, I like getting physical, I dare to face risk, I am prepared - along with men - to be in charge, if the opportunity is there.

And rightly so.

I have two daughters. No, I do not want their husbands to "need to be in charge".

It is such a patriarchal, frankly sexist assertion. Are you kidding me? Men should be in charge? Are so psychologically weak that they can't handle 'not' being in charge?

I'm afraid time prevents me from asking whether John understands the difference between sex and gender, and explaining why gender identity need not be the same as a person's sexual genitals.

I would mildly complain though, in parting - at the suggestion that a transsexual woman is only "performing" the role of a woman... a view at odds with gender specialists, the Health Service, Parliament, the Law, and the actual experience of transsexual women themselves... for all of whom, gender is well understood to be an identity of mind, something integral to a person, regardless of whether you are a cisgendered or transgendered woman.

And if a transgendered woman wants to remain married to her former partner (the law currently requires her to divorce her partner before it will grant her legal protections and pension rights) is that woman (married to another woman) any less loving, any less committed, any less human?

Or if she divorces and then asks to marry a man, is *that* then allowed? (At present it is.) In the real world human beings are diverse, but no less human for that diversity, and gender is not stereotypical, and men need not be "in charge", and sex may or may not be the reason couples choose to get married, and within marriage...

...love is exponentially more important than a concept of 'kinship rights'... because love binds families together, and shortfalls of love are what often separate them... and those shortfalls are nothing to do with your gender, your sex, your orientation. Marriage stands or falls on grace, on fidelity, on love - and the overseeing faithfulness of God.

(continued...)

Posted by: Susannah on Thursday, 1 November 2012 at 9:57pm GMT

(concluding...)

Marriage is about covenant and relationship. And lesbian, gay, bisexual, asexual, genderqueer, transsexual, or just plain 'fluid' people - men who don't need to be in charge, women who risk their lives policing our streets - are just as able to commit to covenant and relationship as heterosexual couples.

I am heterosexual, incidentally. But I believe that the model of Christ and the Bride is speaking to us about covenant and relationship, about faithfulness and tender care... I don't see anywhere in the metaphor of Christ and the Bride that we need to have babies with Jesus.

The strongest bonds of kinship are formed through families built on love. My brother or his gay partner are every bit as much part of my family, and a gift to my family, as any other couple would be. They belong. It is their love and tender commitment through good times and bad times that bind them into family, make them treasured, make them equally valid and equally welcomed in *our* family to the blessing of God bestowed on them in marriage.

Equal marriage is not a political matter - it transcends political divides - it is a matter of humanity, inclusion, justice, welcome, respect. If marriage is such a wonderful thing - and I believe that it is - then surely we should open it and extend its boundaries to include all people, in the same way that Christ seeks out all people, and welcomes them into covenant and relationship with a generosity of spirit, a generosity of love?

Posted by: Susannah on Thursday, 1 November 2012 at 9:58pm GMT

Although I don't endorse Millbank's position completely, it's worth reviewing Savi Hensman's rebuttal. The title, 'Should same-sex marriage be rejected or celebrated by Christians?' establishes her intent to underpin her argument for same-sex marriage from a Christian standpoint.

The first of her counter-arguments is:

1. Millbank's position on sex and gender is an 'over-simplification of the ways in which gender difference has been, and is, lived out'.

To his credit, Millbank qualifies his remarks by saying:'allowing that all generalisations are of course weak and constantly subject to exception'. So, to suggest he is advancing an over-simplified view of gender difference is unfair. The fact is that every law and policy involves normative generalisations.

Hensman continues: 'his analysis seems to be based more on an idealised view involving archetypes rather than the complex and sometimes untidy world which men and women actually inhabit'.

An archetype is a 'universally understood symbol, term, statement, or pattern of behavior, a prototype upon which others are copied, patterned, or emulated.' Yet, this is the raison d'etre of any legal institution, including citizenship. The very purpose of statute law is to codify the normative 'prima facie' intent and expectations that it will uphold, before jurisprudence scrutinises the 'complexities' on either side of a dispute. Apparently, Hensman wants the statute law to be rid of any discernible pattern that does not endorse the 'complex and sometimes untidy world'. It ceases to be law.

It is not enough to argue that because childless heterosexuals can marry, same-sex relationships are equally non-procreative and should be endorsed as marriage. The counter-argument must prove that the current normative legal standard of life-long affinity need not be overtly constituted as congruent with the wider framework of socially beneficial biological kinship. The case for legally endorsing overt incongruence with biological kinship as marriage has not been proved.

Posted by: David Shepherd on Friday, 2 November 2012 at 10:43pm GMT

Yes, the need to protect "the masculine psyche" from NOT "being in charge", has the same priority as "protecting marriage" from Teh Gays.

Which is to say, I'll get around to it sometime after the Twelth of Never.

Posted by: JCF on Saturday, 3 November 2012 at 12:08am GMT

"The counter-argument must prove that the current normative legal standard of life-long affinity need not be overtly constituted as congruent with the wider framework of socially beneficial biological kinship." David Shepherd

David, I do not think that the normative legal standard of marriage is based on biological kinship. It is based on mutual fidelity. The fact that civil law on marriage also includes a good deal of information about inheritance rights and so on, does not undercut the fact that the basis of marriage is the marriage contract -- which while it (and note the import of the words) allows for and even expects procreation, the actual basis of the contract is mutual fidelity. That is, the contract is not voided by a failure to produce children (establishing a blood kinship relationship) but it is (or can be) voided by a failure to maintain fidelity. In short, the biological production of offspring is perhaps normative, but it is most definitely not constitutive of the estate of marriage.

This is why the marriage of an infertile couple is licit and is just as much a marriage as a marriage producing a large number of children. You may not agree, but I think the case is proven. What it is impossible to prove is that the engendering of "biological kinship" is essential to marriage. It isn't.

Posted by: Tobias Haller on Saturday, 3 November 2012 at 2:28pm GMT

In case my earlier comment was not clear enough, let me add that marriage should be treated under concepts of contract law; that is, it is an estate freely entered into, by two persons legally capable of doing so, by means of a covenant and contract. No one is forced to marry, and no one is "naturally" married (as with citizenship, which is more analogous with birth than marriage, in that some are citizens by nature, and others by "adoption").

My suggestion is that Mr. Shepherd has the wrong "template" in mind, one which is only "normative" post facto, and not essential to the nature of the estate.

Posted by: Tobias Haller on Saturday, 3 November 2012 at 2:42pm GMT

The heart of the "template" - if the template is Christ and His Bride - is surely covenant, faithfulness, relationship, and mutual love.

There is no issue of having babies with Jesus, or safeguarding the kinship rights of the next generation, albeit, as children of God we are kin.

Commonsense suggests that the heart of why people get married is tied up with relationship, with bonds of love, with covenant and faithfulness.

'Kinship rights' are not at the forefront of people's minds when they date, fall in love, give themselves to each other before God.

Christ and Bride are ardent - see the Song of Songs for a feeling of that - and the template model of covenant and relationship are as applicable to lesbian and gay couples as to anyone else.

There are no babies involved in Christ's template. There is mutuality, covenant commitment, tenderness and love.

Children are a blessing, and can grow up strong and loved and blessed in ANY household built on covenant and relationship.

Posted by: Susannah on Saturday, 3 November 2012 at 6:33pm GMT

Tobias:

Thanks for your reply. Affinity is essential to marriage. This is not a mere social concept, but a legal obligation. Kinship by affinity, that is the legal bonds established through marriage between spouses and their respective families is created by marriage without the need for children. The other form of kinship (by descent) does require procreation.

'that is, it is an estate freely entered into, by two persons legally capable of doing so,' Exactly, so, on what basis can the contract be annulled and treated as void, in spite of the averred intent of both parties?

We both know and agree that the contract is not voided by failure to produce children. However, affinity is voidable by the intent of one party to withhold the act of consummatIon, as minimally defined in law. How is the permanence of the 'consent-only' contract vulnerable to annulment through a lack of consummation.

You may hope to change what constitutes consummation, but the law currently identifies an act that is congruous with the framework of biological kinship. The validity of the 'consent-only' marriage remains vulnerable, if what is consented by one party does not meet this consummation requirement. That is the law and relying on it to prove one's case and then suggesting that any aspect can be jettisoned to prove one's case is, frankly, trying to have it both ways.

Posted by: David Shepherd on Saturday, 3 November 2012 at 6:43pm GMT

John Milbank's argument for so-called gender complementarity necessarily bases itself on outmoded gender stereotyping. The qualification 'allowing that all generalisations are of course weak and constantly subject to exception'undermines his argument. The whole thing is tautological. A tradition of exclusion cannot justify itself by referring to previous practice. Alas, religion tends to justify prejudice by appealing to previous practice!

The idea of the "natural" must be deconstructed. There is no "natural" relation. Even citizenship is not natural but a cultural construct. The first section of the Fourteenth Amendment of the United States Constitution had to insist that those born or naturalized in the United States are citizens because the status of freed slaves was unclear at the end of the Civil War. Persons and not just citizens (an unstable concept) had to be guaranteed equal protection and due process by states.

Two people who commit to taking care of each other deserve the same legal protections and recognition from the state as any other couple. That religion may take a long time to catch up with this notion of equality is irrelevant because the argument that needs to be made is legal and political rather than religious.

Some told me once, "If you want to change the church, first change the world, and eventually the church will catch up."


Gary Paul Gilbert


Posted by: Gary Paul Gilbert on Saturday, 3 November 2012 at 11:22pm GMT

Never thought I'd see the day when the right wing religious would argue for biological determinism.

Posted by: Counterlight on Sunday, 4 November 2012 at 11:51am GMT

David, affinity, like the marriage bond itself, is not created by consummation, but by the matrimonial contract. "Affinity arises from a valid marriage, even if not consummated..." (1983 Code of Canon Law, Canon 109)

You continue to press on the issue of consummation as it if were constitutive of marriage. A marriage is a full legal marriage prior to consummation --- if a spouse were to die prior to consummation, the survivor would still be the legal widow.

You continue to press on the issue of voidability, when the real question is not one of ending marriages, but of creating them. You seem to be saying that only marriages capable of being voided can be made in the first place, which seems a very odd position, and not evidently true.

There are, as you know, numerous grounds for the annulment of a marriage. Failure to consummate is not in itself a cause for annulment, (the marriage exists from the time of consent), though _refusal_ to consummate is.

If, however, you believe consummation to be impossible for same-sex couples (a point with which I do not agree, but for the sake of argument will follow here), then that simply removes this one "cause" from the discussion, and we are left with intact marriages created by the means recognized in law: consent. In other words, if one accepts your view that same-sex couples cannot consummate their marriages, then same-sex marriages are not voidable by a "refusal to consummate," since it is impossible to "refuse" what it is impossible to perform, and the marriage remains valid. Same-sex couples, in your view, would have to resort to other means to find cause for annulment, much as mixed-sex couples do if failure to consummate is not the issue: improper consent, dissembling, mistaken identity, and so on.

I sincerely hope we can retire this non-issue. We are no longer dealing with an abstract matter, as same-sex marriage is legal in the statutes of a number of nations and jurisdictions, and there is no reason the laws of England can not be adapted in similar ways to those of other nations and states.

Posted by: Tobias Haller on Sunday, 4 November 2012 at 9:09pm GMT

Tobias:

You quote from the Catholic canon, as if it can be applied wholesale to the UK jurisdiction. The issue that you haven't dealt with is the legally understood *intent* of both parties to the marriage. A non-issue to you, but not to our legal system.

Intent is constitutive. You highlight the importance of consent. You define marriage as a contract: offer and acceptance, yet the legally defined good consideration of the marriage contract is a theoretical abstraction. You do not answer the question: 'consent to what?' within the legal framework of marriage. What actions are minimally understood in UK law to be expected by that consent?

You speak of fidelity, without mentioning what is specifically understood in law to be pledged exclusively and legally in marriage: the legally accepted expectations of both parties.

'if a spouse were to die prior to consummation, the survivor would still be the legal widow.' Yes, she would be the legal widow because the intent of the deceased partner has not been challenged, nor cast in doubt. It's hardly likely that a grieving widow would be seeking an annulment, now, is it? As a elucidating example, I expected more.

The fact that same-sex marriage is legal in a minority of world states is no bellwether of its acceptability here or elsewhere. You might as well mention that the number of banana republics worldwide presages the simplicity of ending the British constitutional monarchy.

Posted by: David Shepherd on Sunday, 4 November 2012 at 11:58pm GMT

David, the question is one of law, and its alteration. I know that UK law does not permit SSM. You advance arguments you feel demonstrate changing the law is not impossible. You raise"affinity" -- an after-effect of marriage, largely to do with limiting who one may marry once a marriage has been made. It has little to do with the marriage itself.

I raise the RC and other national law to demonstrate that this is an arbitrary principle, and that change is possible. Cf. Murphy, _International Dimensions in Family Law_, "While English law treats non-consummated marriages as voidable, other systems of law may regard non-consummation as either immaterial or, alternatively, a basis for divorce." (69)

The substance of the contract, the legal expectations, can and do vary. I refer to the intent, and the consent, laid out in the marriage rite of the Church of England. A _refusal_ to follow through (depending on law) could lead to dissolution or annulment; so too a _violation_ of commitments. But the substance of the commitment, and its intent, must lie in the parties themselves and the form of the contract. They can only be held to do what they are capable of doing -- responsible to make good on that agreement to the best of their ability.

A question: under English statutes, is a permanently impotent man able to marry, if his fiancée is aware of this condition and willing to marry? RC law forbids this, but civil law in some cases permits it. As I understand it, permanent impotence can render a marriage voidable, but not void. That is, if one of the parties complains, the marriage can be dissolved. But if a couple is content to live together absent the ability to "consummate" is a legal issue raised?

This seems to me to apply to the issue of same-sex marriage if one takes your view that such marriages cannot be consummated, as it removes "consummation" from the contract, since both parties know they can not “intend” consummation.

Posted by: Tobias Haller on Monday, 5 November 2012 at 3:04pm GMT

Tobias: "This seems to me to apply to the issue of same-sex marriage if one takes your view that such marriages cannot be consummated, as it removes "consummation" from the contract, since both parties know they can not “intend” consummation."

And what about a transsexual partner and marriage. I know several married couples, where the partner previously delegated 'male' transitioned to align her genitals with her gender.

In each of these cases, though the transsexual woman clearly no longer provides sperm, the couple love each other, want to remain married, and *have* remained married (in a lesbian relationship).

Is their love any less than on the day they married? Is their marriage any less precious? (Especially reflecting on the love of the original wife who was willing to stand by her partner come what may "in sickness and in health"?

I find these married couples admirable.

I celebrate their marriages.

But they reflect the way marriage exists beyond the heterosexual norms, demonstrating a diversity of circumstances, but where covenant and love trumps all.

Is their marriage not valid, because they are two women in sexual wedlock and intimacy. What are they supposed to do, divorce the people they love? And if *they* can be validly married, and care for one another, why not all other lesbian couples? Why not gay couples too?

Simple humanity cries out that here are people who are just people, with the same human needs as any heterosexual couple, whose love, faithfulness and tender care are just as deserving of sacrament, blessing and inclusion.

(continued...)

Posted by: Susannah on Monday, 5 November 2012 at 6:46pm GMT

(concluding...)

In the case of the transsexual women I cite, they have been denied their legal pension rights and other legal protections (such as the unlikely but unpleasant prospect of wrong-sex imprisonment) because Christian apologists lobbied for a Gender Recognition Certificate to be denied any transsexual woman who would not first divorce the person she loves.

This shocking "defence" of marriage is an appalling indictment of the law, simply out of the phobia of two women being married (which they still are), and thankfully it is an anomaly that Equal Marriage would remove.

How bizarre that some of the very people who champion marriage argued for the divorce of happily married people, and how lovely that these women surrendered their pension rights and all other legal recognitions, because both partners refused to renounce their marriage vows.

What is decent and right for these legally married lesbian couples should also be legally right for all other lesbian couples (and gay couples) and the sky would not fall in.

The requirement to divorce the person you love, withholding legal rights unless you do, is a disgraceful feature of current British law directed at transsexual women, purely because two people with vaginas loving each other is anathema to a religious lobbiests who pressured for this draconian clause to be added.

Equal marriage expresses a generosity of spirit that respects the love of couples like these. How horrific! Two people loving each other and wanting marriage vows and blessing to the end of their lives!

Posted by: Susannah on Monday, 5 November 2012 at 6:48pm GMT

Tobias:

Even though affinity is an effect produced by marriage, it demonstrates that marriage intentionally creates and is congruous with a framework of family relationships, rather just one between two people.

You stated: 'I raise the RC and other national law to demonstrate that this is an arbitrary principle, and that change is possible.'

That an aspect of law can vary from state to state does not make it arbitrary, i.e. an unreasonable demand, or an unjust imposition of state authority. The rationale that undergirds UK marriage laws is reasonable, systematic and fair.

As I said in other posts, change is always possible. The question we must ask is whether any part of the current regulations or any part of the proposed changes is necessary and reasonable.

My replies have focused on the intent, and the consent, as laid out in English civil law (Scots Law differs) as I believe that this is directly pertinent to the proposals.

Concerning the question that you pose of a permanently impotent man, you say the fiancée consents to wed him, knowing of the condition. Your point is that if opposite-sex partners can marry by consenting to a person's incapacity to consummate, same-sex partners should be allowed to do the same.

Therefore, I ask you to consider the incapacity which the fiancée has consented to accept. It is a decision based on the health incapacity of one person. The relationship was constituted such that, were both healthy, they would consummate. The law focuses on how the marriage is constituted to achieve the minimal intended outcome, not the individual capacity of either party. It is voidable, but not void.

Incapacity ceases with the cause which produces it. The cause of non-consummation for same-sex partners is not individual, but the intended constitution of *all* same-sex relationships. This sort of incapacity cannot vary between similarly constituted pairings of different individuals. This is not voidable, but void by constitution. By the formation alone, it contradicts the intent understood in law to be a reasonable expectation of a valid marriage. Neither can the discretion applied to such a pairing vary, hence there is no legal allowance for it.

The legally understood intent of married partners to consummate therefore remains a consistent and reasonable principle.

Posted by: David Shepherd on Monday, 5 November 2012 at 9:01pm GMT

This is words, words, words, but the driving force behind the intention to change the law is not words but the recognition that people live real lives and have feelings and that lesbian and gay couples can sustain marriage and benefit both themselves and society through it.

David, if this is the law, as you interpret its intent, then - in the real world and in a Parliamentiary democracy the solution is simple, if the government and other parties don't favour your insistence on the letter of the law:

Just change it.

And that is exactly what's going to happen.

Because politicians of all parties recognise that it is compassionate, generous and just to let *all* loving couples enjoy the blessings and social affirmation of marriage.

Since you are basing your arguments on the exact letter of the law, does that mean that when the law changes, you base your arguments on the new law?

Or is your legal precision simply an attempt to validate your own values, and you will later repudiate the very 'means of justification' which you champion in this discourse?

The law is changing. It's now inevitable. I'm proud of my country that we are generous enough to value, celebrate and legally endorse lesbian and gay marriage.

Posted by: Susannah on Tuesday, 6 November 2012 at 10:25am GMT

David, your argument depends in large part on a kind of _mutatis mutandis_ (if things were otherwise such and such would be the case) -- and fails to recognize that law is not generic in its application, but always specific, and hence must address actual cases.

Thus, if UK law does not "require" consummation -- or an intent to conusmmate -- for a marriage to be valid; and I believe it does not, as it declares such marriages are voidable but not void (a distinction you appear not to give due weight) then the whole edifice of your argument fails.

I repeat once again the legal principle enshrined in English law: marriage is constituted by consent, not coitus. It is consent that makes the marriage valid. Consummation is not required for validity. I cannot make this any clearer, and will rest my case.

Posted by: Tobias Haller on Tuesday, 6 November 2012 at 3:38pm GMT

Again, I say 'consent to what? Fidelity to what?' The reasoning behind the legal pre-conditions regarding the constitution of couples who consent to marriage has been made clear. The case law endorses this position.

In the absence of any significant response or counter-arguments to this, I rest my case, too.

Posted by: David Shepherd on Tuesday, 6 November 2012 at 5:30pm GMT

David: 'The counter-argument must prove that the current normative legal standard of life-long affinity need not be overtly constituted as congruent with the wider framework of socially beneficial biological kinship. The case for legally endorsing overt incongruence with biological kinship as marriage has not been proved'

I thought we sorted that out in 1549, by including in the BCP marriage liturgy a rubric requiring a certain prayer to be omitted 'where the woman is past childe byrth'. (The same requirement is still there in the 1662 BCP.)

David: 'Kinship by affinity, that is the legal bonds established through marriage between spouses and their respective families is created by marriage without the need for children. The other form of kinship (by descent) does require procreation.'

Surely the Anglican position has always been that it is in the gift of Parliament to create bonds of kindred where biology has not - or have we stopped honouring Anne of Cleves as the King's beloved sister and I didn't get the memo?

David: 'You may hope to change what constitutes consummation, but the law currently identifies an act that is congruous with the framework of biological kinship.'

As far as I can tell, "consummation" is not defined by statute at all - it is defined only in case law. If same-sex marriage were legal, and the situation remained otherwise the same, then the Supreme Court would be free to develop a definition of "consummation" appropriate to the new environment.

Posted by: Feria on Tuesday, 6 November 2012 at 6:52pm GMT

Feria:
1. An individual's lack of fecundity is not overtly incongruous with the wider framework of biological kinship compared to a pairing that is incapable of consummation, as defined by case law.

2. Interesting that you mention Anne of Cleves. Why was her marriage to Henry VIII annulled? Was it not owing to a lack of consummation? I believe that the title was bestowed on her as privilege for her non-contest, rather than through a change to civil law.

3. 'If same-sex marriage were legal, and the situation remained otherwise the same, then the Supreme Court would be free to develop a definition of "consummation" appropriate to the new environment.' A counter-factual conditional? As Tobias would say, 'Mutatis mutandis...'

I bid you all a good night!

Posted by: David Shepherd on Wednesday, 7 November 2012 at 12:03am GMT

David,

You are advancing your argument on your understanding of law, but it's simple really.

The law can be changed - and it will be.

Posted by: Susannah on Wednesday, 7 November 2012 at 9:11am GMT

David,
what are you actually saying?
That the British Parliament could not change the law even if it wanted to?

Because if that is not what you're saying, then you are simply fighting windmills.
The Government has said it will change the law, and once it has done that, same sex marriage will be legal and all your arguments will be based on yesterday's law that no simply no longer applies.

Posted by: Erika Baker on Wednesday, 7 November 2012 at 10:04am GMT

David: 'An individual's lack of fecundity is not overtly incongruous with the wider framework of biological kinship.'

The fact that it needs its own special rubric in the BCP makes it "overtly incongruous" to exactly the same extent that same-sex marriage would be, because an exactly analogous rubric can overcome the incongruity in both cases.

David: 'I believe that the title was bestowed on her as privilege for her non-contest, rather than through a change to civil law.'

My apologies, you're right. I thought the title was bestowed by the Treason Act 1540, but on closer inspection, it turns out that's not the case.

David: 'A counter-factual conditional?'

Since this discussion is about the workability of legislation whose text has yet to be published, it could hardly be otherwise. However, I admit that from the press reports, it seems far more likely that the legislation, when it is finally published and if it is passed, will entirely abolish non-consummation as a ground for annulment.

Posted by: Feria on Wednesday, 7 November 2012 at 10:37am GMT

'For the first time ever, same-sex marriage was approved by an electorate – and not just in one state but in four. Previously same-sex marriage had been sanctioned by state legislatures but had never passed a popular vote. Last night it did in Maryland, Maine, Minnesota (where a ban was defeated) and Washington'. - Guardian US election blog.

So the argument against is now lost. When the peopls are asked directly they approve. I bet the same thing would happen here.

Posted by: Richard Ashby on Wednesday, 7 November 2012 at 3:37pm GMT

Erika:

1. It's a bit like the Tory commitment to the House of Lords Reform Bill 2012, isn't it? An actual manifesto commitment (compared to the same-sex marriage proposals which weren't) was abandoned by the Tories on 6th August this year after opposition within their own ranks.

2. As I've mentioned elsewhere: a significant majority (63%) of a recent YouGov poll held the view that 'he doesn't believe that it's right, but is doing it for political reasons'. http://d25d2506sfb94s.cloudfront.net/cumulus_uploads/document/8xrr8zjqs7/YG-Archives-Pol-ST-results-09-110312.pdf (page 8)

3. Labour lead Tories by 11 points in the latest opinion polls.

4. The first Commons debate on this same-sex marriage was abandoned until next year due to a timetabling issue.

The writing is on the wall for legislating for same-sex marriage in this parliament, but I do admire your boundless optimism for that to happen.

Feria: I have no problem with counter-factual conditionals. I simply directed you to its criticism by Tobias.

As I said, change is possible, but White Hall will have work, at least, as hard as Henry VIII's advisers worked to find an historic basis for establishing his supreme claim to govern the church of England. The current proposals are not only naive about the nature of statute and case law, but also about discerning the will of the people.

Richard:
At least, gay marriage supporters in the US did their homework on the legislative strategy. That's hardly true of their UK counterparts, who think that change is best accomplished by Parliamentary fiat, rather than the test of a referendum to *prove* that the argument against is lost.

Posted by: David Shepherd on Wednesday, 7 November 2012 at 7:39pm GMT

David,

With reference to your arguments, drawing on the law.

The issue at the heart of this is human-based, not law-based.

The position of the secular state is that there is a problem with the law, not a problem with the humans and their behaviour.

Therefore it is the law that needs changing.

Your appeals to law as it stands are appealing to the very thing which it is recognised needs to change.

The arguments you use to keep it as it is are the very things which therefore stand in the way of the human situation and needs.

In other words, your arguments (and the law you appeal to) are the problem.

There is absolutely no problem with loving committed couples deciding for themselves if they want to be married.

There is absolutely no problem with some churches deciding for themselves to bless those couples in marriage services.

The internal machinations of - for exanple - the Church of England (where opinion is divided) are the extent of the Church of England's autonomy.

External to the Church, the state of the UK determines laws and changes laws, according to the elected sovereignty of Parliament.

The reason gay and lesbian marriage is going to be introduced is that it is regarded as a just and appropriate response to a real human situatuion, where the law is currently the problem.

Throughout this discourse you have appealed to the law, but in doing so, you identify yourself with the very problem which government is going to remove through legislation.

(continued...)

Posted by: Susannah on Wednesday, 7 November 2012 at 8:37pm GMT

(concluding...)

Fifty years ago if I felt that the death penalty was wrong, and you said 'Yes but it's the law', the solution would be simple: just change it, we do not agree with the law you appeal to.

It is the same with Equal marriage. It is a human-based issue, and its time has come, and the law you appeal to stands in its way.

Therefore, government is going to change the law, just as yet more states did in the US last night.

The issue is perceived to be that the law should serve the people, not the people a law that is no longer regarded as just.

You are defending your case with the instrument that is seen as the problem.

I think some religious people think, no, no, no, gay sex is the problem. David, neither gay sex nor gay fidelity is a problem.

The behaviours are accepted by the majority of society. Now our sovereign parliament is going to change marriage law - whatever that takes - to align it with the human behaviours, the human lives, the human care, the human intimacy.

It is not about legalistic technicalities around 'kinship rights' which you keep on appealing to. It is not about the law. It is about people. Parliament is recognizing there is a human need, and that is admirable and decent, and therefore oit is the law that must change, not the people's behaviours.

Kinship rights will just have to be redefined (if they are even necessary to the legislation, and that's fine too. Because when my brother marries his gay partner, his partner will totally become 'kin' as ,much as any 'bride', and loved and welcomed in the family, and his own family will become relatives to ours.

And that is a new and lovely kinship.

Susannah

Posted by: Susannah on Wednesday, 7 November 2012 at 8:39pm GMT

Ah well, David, it seems you've shifted from stating that there is something intrinsically impossible about same sex marriage to accepting that it is merely a long and complex political and legal process.

We can live with that. It might take a little longer but it will happen.

Posted by: Erika Baker on Thursday, 8 November 2012 at 8:35am GMT

David, you ignore the rather important constitutional differences between the UK and the US. By your argument we should also have a referendum on whether the medical use of canabis should be permitted as was approved in two US States. One might also argue for other populist causes, like the reintroduction of hanging and flogging. Both of which no doubt would be approved by popular vote.

Posted by: Richard Ashby on Thursday, 8 November 2012 at 11:43am GMT

Erika:
'Ah well, David, it seems you've shifted from stating that there is something intrinsically impossible about same sex marriage to accepting that it is merely a long and complex political and legal process.'

Look at http://www.thinkinganglicans.org.uk/archives/005621.html

My post on 10th August (I remember that you were on that thread):

'Tobias:

'The fact is you simply don't want change, and have dug in your heels against it, declaring it to be impossible.'

Who said anything was impossible? No, really. Point me to where I said that.

I did state: 'If gender was a secondary relational requirement and not indispensible to the legal character of marriage, this (re-definition) could be done easily.' There's a difference between difficulty and impossibility.'

So, no, wrong, not a shift in position. I haven't vacillated. I did conclude:

''find and replace' word substitution was supposed to convince us of just how easily, yet you later admit, in respect of specific matters of legal resilience: 'I think we can tolerate a few decades of development for same-sex marriage.' You have not proven that gender is a secondary relational requirement.

We agree that it would, at least, take decades of case law to resolve, presumably at the tax-payers expense. A bit surprising for something that you consider to be quite secondary.'

'Mere' decades of costly case law.

Posted by: David Shepherd on Thursday, 8 November 2012 at 2:37pm GMT

David,
thank you.
I don't understand the "decades of case law", if I'm honest.
If the law is re-written to include same sex couples then the new law will apply.

They did not refer back to decades of case law when black people became equal before the law, nor when women were given the vote - these thing suddenly create a completely new playing field.

And there is very little that needs to be tested in the courts, after all. Once a marriage is valid the same rules apply to both straight and gay and that's where it ends.

There might be a few cases regarding the custody of children, but as same sex adoption and assisted conception already exist for civil partnered couples and, indeed, for simply partnered couples, nothing new will be added by changing civil partnerships to marriages. And civil partnerships have not resulted in massively expensive legal battles, so I don't think that same sex marriage will.

I think you worry too much.

Posted by: Erika Baker on Thursday, 8 November 2012 at 4:48pm GMT

Richard:
Since the State local referendum approach is not entirely analogous to our referendum system, I'm not sure what you mean by: 'When the peopls are asked directly they approve. I bet the same thing would happen here.'

If you view the referendum approach as giving in to populism, why extol the significance of the recent local referendums in the US at all?

To you, an unfavourable referendum outcome is sheer populism and favourable referendum result is proof that the argument against is lost. In your head alone, I'm sure it makes perfect sense.

Posted by: David Shepherd on Thursday, 8 November 2012 at 5:24pm GMT

David said 'To you, an unfavourable referendum outcome is sheer populism and favourable referendum result is proof that the argument against is lost. In your head alone, I'm sure it makes perfect sense'

Should the moderator of this blog allow remarks which seem to allege that I am schizophrenic?

David. Are you deliberately misunderstanding what I wrote? I can only think that you can't follow my logic or would rather not engage with it.

I do indeed think that the result of the propositions regarding gay marriage in four US states is of great significance. Don't you? And I do expect that should such referenda occur here there would be a similar outcome. But such referenda don't occur here, that's not how our constitution works. I do regard such populism as sometimes dangerous and I know that we do things differently. Which is why this is a government and our Prime Minister is committed and keeps on repeating its commitment to effect the legislation for same sex marriage in this Parliamentary term. And no doubt his decision to do so reflects his belief that it the right thing to do.

The other point is that the endorsement of gay marriage by the US President has had no discernable negative outcome on the election result. This too is highly significant. Apart from anything else it shows that as a political issue affecting the outcomes of elections this is dead. In as far as anything that happens politically in the US is reflected here this is also important.

So the issue is no more. All the words about history, tradition, meaning, culture, religion, god and those curious ones about defining 'consummation' are now irrelevant. The world isn't listening. Some in the Church may continue to agonise but no one cares about the church's agonies anyway.

Posted by: Richard Ashby on Thursday, 8 November 2012 at 11:50pm GMT

This has gone on long enough. Debate closed.

Posted by: Simon Sarmiento on Friday, 9 November 2012 at 8:54am GMT