Thursday, 7 February 2013
Discussion continues on the Marriage bill
Updated again Tuesday morning
The House of Commons committee hearings will commence on 12 February.
The committee is inviting the public to submit written evidence. The closing date is 12 March, but earlier submissions are encouraged.
Amendments are being filed by MPs and updated lists of them will be published regularly. The first set of them is here.
Update 11 February A few more amendments are now here.
Update 12 February Further amendments and a list of witnesses for this week here.
Just before the Second Reading, ResPublica published this “Green Paper” by Roger Scruton and Phillip Blond: Marriage: Union for the future or contract for the present (PDF).
A shorter version of this paper is published at ABC Religion and Ethics under the title Marriage equality or the destruction of difference?
The speech made in the Second Reading debate by Sir Tony Baldry, Second Church Estates Commissioner, can be found here.
David Pocklington has written at Law & Religion UK an article titled Tenuous European links to same-sex marriage, which deals with claims made elsewhere that recognition of same-sex marriages will become a “European requirement”.
The Guardian has a detailed analysis of the Second Reading vote.
Posted by Simon Sarmiento on
Thursday, 7 February 2013 at 3:54pm GMT
You can make a Permalink to this if you like
Church in Wales
| Church of England
| equality legislation
Julian Huppert has introduced an amendment that would allow a marriage to be solemnised through the 'usages' of an approved organisation that meets the following criteria:
(a) is a registered charity concerned with advancing or practising a religion or belief, including a non-religious belief;
(b) does not possess or have the use of any registered place of worship; and
(c) appears to the Registrar General to be of good repute.
Okay, so a lesbian and gay charity with religious charitable objects has to meet somewhere. You can already fill in forms 76 and 78. For a small fee, that would certify the place of meeting for religious worship and it as a place of worship and register it for the solemnisation of marriages.
Oh, but you'll need the form signed by a minimum of twenty householders who regard the meeting place as their usual place of worship, a weekly timetable and the countersignature of the proprietor or trustee of the building.
This amendment is just a workaround for those who profess a religion that doesn't approve of same-sex religious marriage. Wouldn't miss such a glaring sleight of hand.
Dr Huppert is a member of the British Humanist Association, and his amendment is specifically intended to get around the fact that in England and Wales (though not in Scotland) there is no provision for humanist wedding services.
Okay, Simon. However, his ostensible purpose that you describe and clear support for same-sex marriage don't preclude the quasi-religious same-sex marriage scenario that I envisaged.
What becomes increasingly clear is that this debate is around the one question 'Is marriage a union of equals or is it about the union of two different types of person, allegedly equal-but-separate?' I, and most other women, regard myself as an equal of men, and, as David Lammy so eloquently argued, separate equal is in fact, not equal at all. http://www.youtube.com/watch?feature=player_embedded&v=uWIoULRrvxM
Dr Huppert is my MP and I am quite sure he is being straightfoward and above board. He is not in the least interested in interfering in processes that Anglicans really have to sort out for themselves - why should he bother? In this case Simon is right and I think David Shepherd is almost certainly seeing Reds under the bed.
The key EU statement in David Pocklington's excellent blog post is this:
“… measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act UNANIMOUSLY after consulting the European Parliament." (my emphasis).
This means that just one Member State, e.g., Malta (the likeliest refusenik), Hungary, or Cyprus, could prevent the EU from enforcing inter-Member-State-recognition of other member states' cvivil unions or SSMs.
"don't preclude the quasi-religious same-sex marriage scenario that I envisaged."
And what would be the problem with that, provided the opt-out for the CoE and any other religion that did not want to conduct same sex marriages stood?
The Church Times report on this debate in the House of Commons contains this assertion:
'The Labour MP Stephen Timms, who is an Evangelical, said that the "central problem" with the Bill was that it introduced a definition of marriage that did not include the "procreation of children", as in the 1662 marriage service.'
The fact is, of course, that since the 1662 Marriage service was first written, the context of Marriage has been changed - to include couples who are either not capable of or willing to procreate, for reasons of age, or other disability. This no longer prevents a couple from being married - either civilly or in a Church of England ceremony. This renders the argument that all marriages must include the possibility of producing children null and void.
It is also helpful to note that the 1662 BCP Marriage service, while making reference to the "cause" of procreation in its opening exhortation, when it comes to the couple actually marrying, directs that the collect bidding that the couple "may both be fruitful in procreation of children" "SHALL be omitted, where the Woman is past child-bearing."
Thus the 1662 liturgy explicitly recognizes that while procreation is a "cause" for the creation of the institution, it need not be a reason for any particular marriage of a real couple. This represents a healthy movement from idealism to realism.
The rubric concerning women 'past child bearing' goes right back to the 1549 Prayer Book. The significant point is that in such a case, notwithstanding the tactful omission of the prayer for fruitfulness, the preface setting forth the general purpose and nature of marriage (which evidently in the view of the compilers were not affected by the particular case) is to be read out without alteration.
C of E briefing papers have stated that if the Church were to introduce same-sex marriage the BCP marriage service would need to be 're-written' - including the reference, presumably, to procreation in the preface.
I don't see re-writing as a necessity, for the reason I stated: the "cause" for the institution of marriage need not apply -- and does not apply -- to every particular marriage. Thus the preface would be read over a couple in their 80s, and the prayer omitted.
I don't think advocates of same-sex marriage deny that one of the reasons for the institution of marriage is the procreation and upbringing of children. Many same sex couples participate in the latter, and some in the former.
Taking the Holy Family as just one example, the raising of a child who is not the biological offspring of both parents has a definite theological basis in our tradition!
Whatever might have been meant by the BCP, the common law is clear from Blackstone’s Commentaries: ‘A possibility of issue is always supposed to exist, in law, unless extinguished by the death of the parties ; even though the donees be each of them an hundred years old.’
That 'the possibility of issue is commensurate with life' is a standard common law principle of marriage. This principle was cited in cases in which a cheating wife who was past child bearing age claimed that the tainting of her husband's issue, and thereby the guilt of adultery was impossible. The common law understanding is that the marriage obligation always entails the possibility of issue.
I think it is wrong to assume that same sex couples doon't get together with the intention of starting a family. Plenty of same sex couples have children, either bringing into the relationship children of former straight relationships, or having children by artificial insemination, adoption, fostering etc. These are just as much families as those formed by straight couples, and are often just as longed-for, planned for and effectively raised. I would hazard a guess that that, just as for opposite sex couples, the added security and commitment of marriage might be just as important to them for that reason.It seems to me that a gay marriage might just as much be formed "as a foundation for family life" as the preface to the Common Worship wedding service puts it, as straight marriage. Indeed a straight marriage where the partners have decided not to have children (whether naturally or otherwise) might be seen to qualify less as a true marriage under these criteria than a gay one where there is an intention to create a family, or an existing one to be cared for.
If the law can employ a legal fiction for a fertile pair of centenarians, it can just as well adopt one for a same sex couple. If, as the White Queen suggests, it's about believing impossible things, then we can all follow suit, and I say the more impossible the better.
Pardon the whimsey, but it does seem like a huge stretch to frame adultery solely in terms of impossible virtual tainted issue, when the violation of the explicit terms of the contract ("cleaving only unto" without reference to children) is quite sufficient to establish cause for action. I admit we are well past the framing of adultery as a property violation (as English law did at one time.) But virtual offspring seem not to be a major focus, particularly given easy access to contraception.
The real point is that marriage is primarily a means of stabilizing and domesticating the sexual and romantic drives that otherwise generate so much negativity and disorder. It "civilizes" an animal instinct. Adultery represents a return to the disorder marriage is intended to order. This seems a much more rational way to understand it, without reference to virtual progeny.
It is high time the English adultery law were redefined, and if the current parliamentary debate and emergence of new occasions teaches new duties, so much the better.
English common law also claimed that marital rape was not a crime: since the wife was one flesh with the husband, her consent could be assumed. It's misleading to claim that marriage has always meant the same thing legally and socially when it very evidently hasn't and some changes have been accepted even by the most ardent traditionalists.
The legal fiction of centenarians having issue -- in a matter concerning estate and inheritance law, mind, not marriage -- is simply an example of how the law can conceive of things that people cannot perform. If one is to make legal provision for impossible things, like the White Queen, I suppose it just as easy to state that it is "legally" possible for a same sex couple to conceive; as it is actually possible for a woman in a same-sex marriage to conceive by means of donated sperm, as happens in mixed-sex marriages too. (And UK law is quite generous in allowing a single donor to generate up to 15 "families")
So this is a "concern" that need not be raised. Only couples who have children, by whatever means, including adoption, need be concerned about the aspects of the law governing offspring. We need not concern ourselves with virtual offspring when it comes to marriage -- only real offspring.
Sorry; that should be ten (10) families from a single donor. So much for the "biological ties" argument as essential to family life, apparently already vitiated by this extravagant allowance, to say nothing of the long tradition of adoption and foster-parenthood.
Magistra: You happily accept liturgical exemptions for those 'past child bearing age' in the BCP 1662 Marriage Service being pressed into service for same-sex couplings when. Yet, you want us to discard the common law principle regarding the possibility of issue, that remains in force, because, at one time, an unrelated part of the common law connived at marital rape.
Your rationale is ever so slightly biased, I fear!
The conception of Isaac through Sarah ('Abraham and Sarah were already old and well advanced in years, and Sarah was past the age of childbearing.' (Gen 18:11)) was far from a legal fiction. If Sarah had committed adultery before his conception, the guarantee that Isaac was Abraham's genuine progeny would be compromised. The seventh commandment rightly remains a part of marriage law.
Isaac, the child of promise, might be virtual offspring to you, but not God. Of course, even if you consider the biblical account to be a legal fiction worth ignoring, the idea that any child could issue from any same sex act is a biological impossibility (incapable as those acts are of producing even virtual offspring).
The point I was trying to make is that I do not take the common law of marriage as automatically morally authoritative. Marriage law changes and the suggestion that it cannot be changed or that it is always wrong to change it is historical and moral rubbish. Whether this particular change is good or bad can be argued, but to say that tradition means we cannot change marriage is to attach yourself to a common law tradition that treated wives as their husband's property, a view which is now rightly rejected.
David, I would not want to see present marriage law modeled on Genesis, either the early chapters or the later. The miraculous birth of Isaac notwithstanding, Abraham and Hagar and Sarah do not make a very good model for modern English law.
But you have not dealt with the primary objection to your thesis, that you assert an essential characteristic to marriage which in fact does not apply to all marriages. In this case it is not a matter of the exceptions proving the rule, but of facts disproving it. (1) Biological progeny is not required for licit marriage, as both civil and canon law, and liturgy recognize. (2) Adoption makes one fully a member of a family, severing the asserted necessity of a biological tie to both parents. (3) Artificial insemination from a donor not a spouse, already legal in England, completely severs the asserted necessity of a biological tie to both parents.
In short, your definition of what marriage "is" (quite apart from any arguments as to its "purpose" or "cause") does not meet the evidence.
If one is going to see this as a matter of contract law, one must look to the contract's text, and the marriage liturgy makes clear what the duties of the couple are for each other, and the commitments. They do not promise procreation, even if they may hope for it. I think the four corners principle applies here, and one cannot licitly convert a hope into a requirement.
While marriage as an institution may be believed to have come to be as a context for procreation, any given marriage need not meet that expectation.
'1) Biological progeny is not required for licit marriage, as both civil and canon law, and liturgy recognize.'
As I said to you as a comparison before, a person under duress can also contract a perfectly valid marriage. Let's apply your logic.
Matrimonial Causes Act 1973: Grounds on which marriage is voidable (c) 'that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;'
One bar to annulment is - '(a)that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so;' Unless, the coerced party acts with reasonable promptness to annul the marriage, it is considered valid.
Ergo, by your logic, freely granted consent is not a requirement of marriage because its absence is tolerated by law. You hold no distinction between what is tolerated and what is intended, so there is no necessity for freely granted consent.
In fact, there are probably many marriages in which the inaugural vows made under duress, or in an unsound state of mind. So, does that mean that we should legislate in favour of forced marriages?
You may consider the absence of duress as an assertion that is not 'an essential characteristic to marriage, which in fact does not apply to all marriages'.
A strictly qualified accommodation is not an unqualified affirmation.
David, your quasi-legal definitions of a valid marriage may no longer be justified. As Tobias has already mentioned; there are valid marriages in the U.K. that have never been based on the guaranteed intention to produce biological progeny. This, therefore, dismisses one of your primary reasons for denying marriage to same-sex monogamous, loving partners. No amount of legal argument by you can produce any other outcome.
In terms of validity, I quoted from MCA 1973 directly. That is the law, not a quasi-legal definition.
To paraphrase you: 'there are valid marriages in the U.K. that have never been based on the guaranteed intention to consent freely. This, therefore, dismisses one of the primary reasons for denying legislation for forced marriages'.
Your logic is flawed.
David, I will simply note that your logic is also flawed. Consent _is_ required for a valid marriage, though there is an exceptional case in which the failure to give consent was not challenged.
That is not analogous to the fact that the birth of children is _not_ required for a valid marriage, ever, nor is there any promise of such in the contract, and so the law contains no exceptional clause. UK marriage has never been based on the guaranteed intention to have children.
Your analogy does not hold, or even apply. You appear in general not to be aware of the pitfalls of "argument by analogy" -- witness your attempt to analogize citizenship with marriage. Unless those whom you wish to convince accept the rightness of your analogy, the argument fails, as in this case.
David, since we quoting the Matrimonial Causes Act 1973, that also makes a marriage voidable if "at the time of the marriage the respondent was pregnant by some person other than the petitioner". Should we therefore conclude that the marriage of Mary and Joseph was not a proper marriage? It's precisely because theologians have wanted to see this as a true marriage that historically they've been so reluctant to see consummation as essential in creating a marriage.
A pretty good argument on your part, 'magistra' !
I am awaiting David Shepherd's response to that.
Tobias: 'Consent _is_ required for a valid marriage'.
David Shepherd actually said: '*freely granted* consent is not a requirement of marriage because its absence is tolerated by law.' I referred to the presence of duress. Given your precision of expression elsewhere, you have resorted to an obvious distortion to support your desperate hope of an invincible argument. A tactic unworthy of honest debate.
'Unless those whom you wish to convince accept the rightness of your analogy, the argument fails, as in this case.'
When, on the Sabbath, the disciples were challenged by the Pharisees for picking ears of corn, Christ referred to the permission granted for David and his companions to eat the shewbread. The Pharisees were probably not convinced of the rightness of his analogy, since they 'went out and plotted how they might kill Jesus'. Their rejection did not invalidate his analogy and neither does yours invalidate mine.
A mere assertion that the analogy is not right (because you and others here pin their hopes on the contrary view) does not invalidate the comparison.
On this basis, your attempt at refutation is flimsy. Your rejection is no more than a thinly-veiled argumentum ad populum. 'We're not convinced, so your analogy must be wrong'. How unworthy.
Magistra: 'Should we therefore conclude that the marriage of Mary and Joseph was not a proper marriage?'
'Because Joseph her husband was a righteous man and did not want to expose her to public disgrace, he had in mind to divorce her quietly...But after he had considered this, an angel of the Lord appeared to him in a dream and said, “Joseph son of David, do not be afraid to take Mary home as your wife, because what is conceived in her is from the Holy Spirit.' (Matt. 1:19,20)
MCA 1973 states as a bar to relief: ''(a)that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so;'
Clearly, Joseph elected to follow the angel's instruction, after which he could not have the marriage avoided. I see no contradiction. Unless you're a Roman Catholic, there is no authority by which you can invoke the claim that their marriage was never consummated.
David, in addition to the unhelpful ad hominem, you entirely miss the point. The reason your analogy does not hold is that lack of consent renders a marriage voidable. Lack of progeny does not. These are not analogous situations in terms of what is required for a valid marriage, which is the topic at hand.
MC 1973 12 states a marriage is voidable in the case,
(c)that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
As I noted, the duress exception you cite is precisely that, an exception due to a form of assumed condonation. That exception does not remove duress from the general category of voidability.
Marriage is not, however, void or voidable on the basis of failure to procreate (except only in the case of mental illness rendering a party to a marriage contracted prior to 1971 "unfitted for... the procreation of children." That clause does not apply to marriages contracted since 1971, and so may be regarded as moot.]
Your analogy fails because the two issues (consent and procreation) fall into entirely different categories. Stating the obvious is not unworthy.
1. 'the reason your analogy does not hold is that lack of consent renders a marriage voidable.'
Yet, elsewhere, you are careful to remind us that which makes the marriage voidable (e.g. non-consummation) is not a requirement of marriage. As I said. A strictly qualified accommodation is not an unqualified affirmation.
2. 'Lack of progeny does not'.
I did not state that a lack of progeny makes a marriage voidable, so let's deal with what I've actually said, rather than someone else, once and for all.
I have stated a common law principle of marriage that 'the *possibility* of issue is commensurate with life'. Issue does not have to be intended, or produced. The possibility establishes a universal *prima facie* constitutive contingency. This is not altered by individual fertility, or desire for offspring.
Possibility is a principle of other agreements (e.g. to cover loss). Possibility establishes a universal prima facie constitutive contingency. A party to such an agreement does not have to intend, or even incur the loss. However, absent that possibility, due to constitutive incapacity (e.g. no insurable asset), and that agreement also becomes meaningless.
The possibility of issue is a constitutive reproductive impossibility for a same-sex relationship per se. Again, this is not altered by individual fertility, or desire for offspring. Absent that prima facie constitutive possibility and the agreement becomes meaningless in the light of the afore-mentioned common law principle.
Moreover, let me conclude, after which I will keep stum for a bit, by pointing out a consequence of your having raised the issue presented by MC 1973 13.1.a, which I've been referring to as a species of condonation -- that is, a marriage will not be voided when a party to a voidable marriage knew that he could petition for the marriage to be voided on the grounds of duress but "conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so."
My observation at this point is that the same rule applies to non-consummation, as it also comes under the heading of grounds on which a marriage is voidable. If a couple are content to live together absent the capacity to consummate, (which you hold applies to all same-sex couples), then the ability to void the marriage is forfeited under MC 13.1.
By raising this point you have utterly vitiated one of the principle arguments against same-sex marriage.
David Shepherd "The possibility of issue is a constitutive reproductive impossibility for a same-sex relationship per se. "
No it isn't, David. Apart from the possibilities of varieties of assisted conception, same sex couples can adopt, and often do, thereby creating a family which is just as real as that of an opposite sex couple. I would imagine that many of those same sex couples who wish to marry want marriage so that they have a firm foundation for family life, which will give a sense of security to their children. This is one of the stated purposes for marriage in the preface to the marriage service, and something which is surely an obvious good.
Just as, I presume, you would support the desire of an opposite sex couple to marry if they wanted to start a family - whether through natural or artificial conception or adoption - it is logical to support same sex couples in doing the same. Or do their children not need/benefit from the sense that those who are caring for them are committed to each other?
Tobias said earlier: 'As I noted, the duress exception you cite is precisely that, an exception due to a form of assumed condonation. That exception does not remove duress from the general category of voidability'
This is a key issue. Condonation (even of non-consummation) was only established to accommodate exceptions, i.e. individual (rather than prima facie constitutive) incapacity. Same-sex relations are void in respect of the afore-mentioned constitutive 'possibility of issue' in marriage.
The issue that the drafters of the same-sex marriage bill faced was whether the condonation of non-consummation in same-sex relationships was indeed an exception, or constitutive of all same-sex relations. They clearly took the view that the non-consummation of same sex relationships is not an exception, nor proof of condonation, but constitutive of all same-sex relations. Rather than supporting a biased interpretation of the existing condonation clause, they have applied a bar to annulment relief based on orientation.
In contrast, pressing a strictly qualified exception (MCA 1973 13.1.a) into the service of an improperly qualified change to the law descends into pure casuistry.
Anne: I used the qualification 'per se', meaning 'by itself'. This does not involve parties external to the relationship. Constitutive impossibility derives from the kind of union by itself, rather than individual capacity.
Your examples relate to individual incapacities (that might cause a couple to resort to adoption or assisted reproductive techniques), rather than a constitutive impossibility. They are therefore irrelevant to this line of debate.
And that will be my last point.
It is a bit rich to be accused of casuistry by one whose arguments are so transparently circular.
Ultimately all of David's arguments reduce to: "Same-sex couples cannot marry because they are not of opposite sexes." He can introduce as many middle terms as he likes, but in the end this is his argument.
The primary weakness is in his confection of a distinction between individual (or circumstantial) inabilities to do something he alleges is required for marriage, as opposed to "constitutive" or constitutional inabilities to do the same. The legal point is that if something can be excused or omitted for an individual it can equally be excused or omitted for a class -- it is not, in itself, an "essential" element of the institution. Ultimately all properties inhere in individuals, not in classes, in any case, so his argument fails on philosophical as well as legal grounds.
I am not, by the way, attempting to argue him into agreement. I doubt that is possible. I am addressing the jury who will assess the relative weight of these arguments.
And I will, after all, close with that.
I don't understand this conversation at all.
Whatever the current law may or may not say about marriage is completely irrelevant and cannot be used as an argument against same sex marriage per se because the law is about to be changed and in a very short time there will be equal marriage in this country.
You can argue that, to your mind, this will never be a marriage in God's eyes, but it is patently obvious that it will be a marriage in the state's eyes.
What is the point of continuing this debate that is so clearly based on yesterday's argument?
Specifically in response to your remark, the discussion has moved the straw man of mandatory marital procreation and the liturgucal exemption of those 'past child bearing' expressed in the Book of Common Prayer.
Without re-opening the debate, I will not simply acquiesce to a misrepresentation of the actual position, as if the possibility of issue and actual procreation are one and the same.
but all you're really saying is that under current law same sex marriage is impossible.
If the Government agrees with your legal assessment it will change the law in such a way that same sex marriage does become possible.
And if the Government agrees with Tobias' interpretation it will not not change that particular part of the law.
The only thing that really matters here is that shortly, same sex marriage will be legal.