Comments: Archbishop of York's response on Marriage and Civil Partnerships

" The issue is not the implication for any existing marriage but the implication for people in future when the social meaning of marriage has been changed and, in my view, diminished."

And despite all the pretty earlier words, this is what it really boils down to.
Gay couples whose lives are precisely the same as those of straight couples diminish something straights have if they are allowed to participate.

Straights and gays can lead lives without children - that does not make them equal.
Straights and gays can lead lives with children - that does not make them equal.

Despite all the talk of "valuing" difference - and we're talking here about enforced difference, not chosen or given difference - it comes down to gay people being unpleasantly different that they would devalue marriage.

It’s not our actions that devalue marriage. Straight adultery, cruelty, marital rape, marital violence – none of that devalues any aspect of the institution.
But gay couples do even if they lead exemplary lives.

This is again nothing but prejudice pure and simple.
And quite pitiful to read, coming from an intelligent man.

Posted by Erika Baker at Thursday, 17 May 2012 at 11:24am BST

Not running for office, or anything like that, are we? To me, has the hallmarks of a carefully, professionally-crafted document.

Posted by Lapinbizarre/Roger Mortimer at Thursday, 17 May 2012 at 12:34pm BST

I see that ++Sentamu describes the Canons of the CofE as part of the Statue law of England. Presumably that would be legislation to determine where sculpture may be placed.

Posted by Stuart at Thursday, 17 May 2012 at 1:22pm BST

"I will be the first to accept that homosexual people have suffered discrimination and sometimes worse through the decades and that the churches have, at times, been complicit in this. There is much penance to be done before we can look our homosexual brothers and sisters in the eye. But that baleful history does not diminish the need to speak the truth in love."

Perhaps he has in mind his own recent speech in the House of Lords defending the right of the church to discriminate in employment against gay and lesbian people who are in relationships.

i would be interested to know what the Archbishop proposes for his church by way of penance for the "discrimination and worse" against gay and lesbian people. Or are these just words? Perhaps he could start by signing up to the equality act, banning employment discrimination in the church and blessing gay relationships. Just a suggestion.

Posted by sjh at Thursday, 17 May 2012 at 2:15pm BST

Is there such a thing, at a deeply ontological level, as "a" Christian?

I would be happy to see the Archbishop state for the public that he is not "a heterosexual." He has the right to speak for himself, but must allow others to differ when it comes to their sense of identity and personhood.

Posted by Tobias Haller at Thursday, 17 May 2012 at 2:17pm BST

He appears to totally misunderstand what happens when two men or two women marry, calling it 'individualistic' and failing to recognise that it affects the whole family - when my son married his partner, I gained a much-loved son-in-law. The thing is - actually the ABY wants to narrow the family to the nuclear family. A huge mistake.

Posted by Rosemary Hannah at Thursday, 17 May 2012 at 2:21pm BST

I hope I'm not being too polemical and one-sided (or too long-winded) about this statement by the archbishop, but...

1. There's a contradiction in his argument. He admits, 'Parliament has been concerned with matters of process and procedure, dealing with who may or may not enter into marriage', yet he claims that readjusting who may enter into a marriage is a change in the fundamentals when gender is involved (as distinguished from being able to marry one's deceased wife's sister, which was morally objectionable to a majority in the House of Lords for decades). I'm pretty sure there is no principled difference.

2. Citing Hyde v. Hyde and Woodmansee is not smart. First, that case was decided when legal values could be derived from their acceptance in ‘Christendom’ (quaere whether it included the Empire...). Second, it was legislatively overruled by the Matrimonial Causes Act 1975. Finally, it was a ridiculous judgment anyway, because it held that a man could not be divorced from his wife if the law of the place where they were married (here, Utah) *permitted* plural marriage, *even if* the couple involved had not themselves had more than one spouse.

3. On the marriage-is-not-a-civil-contract argument, see Blackstone (vol. 1, ch. 15):
'Our law considers marriage in no other light than as a civil contract. The law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.... It is held to be also essential to a marriage, that it be performed by a person in orders; though the intervention of a priest to solemnize this contract is merely juris positivi, and not juris naturalis aut divini.'

I really do think that it's important to get the facts right on this stuff, and I'm not sure that it's helpful to have long statements like this floating around gaining currency with the public. The legal definition of marriage in England and Wales (!) is not contained in the canons and prayer book of the Church of England.

Posted by Scot Peterson at Thursday, 17 May 2012 at 5:47pm BST

Nice to know that Britney Spears' 55 hour marriage is more sacred than my 9, going on 10 years, with my partner in sickness and in health, for richer and for poorer.

Feh!

More "Jesus loves you, and so we have to love you, now go stand behind the potted palm and keep quiet."

Posted by Counterlight at Thursday, 17 May 2012 at 5:53pm BST

Crucially, the main distinction held by the Archbishop and other evangelicals is that 'unless one believes that every difference between the sexes is a mere social construct, the question of equality between the sexes cannot be completely addressed by the paradigm of racial equality.'

Clearly, many who post to TA reduce sexual distinctions to variable social constructs and attributes that don't affect the essence of our sexual relations and marriage. They will even isolate Galatians 3:28 as a supportive bible text, without due regard to its focus on justification, rather than gender-indiscriminate sexual coupling. Even after Christ has specifically identified the essence of marriage in the origin of gender as declared by God.

When logical inferences are drawn from such misapplied bible verses and faulty 'reasoning' to demonstrate how it might *unintentionally* justify unconscionable behaviour elsewhere (reductio ad absurdum), the reaction is to express horror at the use of such demeaning comparisons, while endeavouring to establish an equally unjustifiable comparison with racism.

So, by all means, let's abandon the normal tools of logic on TA in furtherance of empty self-excusing rhetoric.

Posted by David Shepherd at Thursday, 17 May 2012 at 7:35pm BST

Yawn. Dr Sentamu does not count concision as one of his friends. As for his acceptance of civil partnership - is this a direct lie - I missed the C of E agreeing to CPs being conducted in church, so some relationships are more equal than others.

Posted by Craig Nelson at Thursday, 17 May 2012 at 9:05pm BST

"We must not torture the English language. Marriage is a relationship between a man and a woman and that's marriage."

He's in Jamaica, where LGBTs are *regularly tortured*, and Sentamu is worried about the health of the LANGUAGE?

"We supported Civil Partnerships (the bishops in the House of Lords), because we believe that friendships are good for everybody."

We're not talking about "friendships", we're talking about SPOUSES.

"But then to turn Civil Partnerships into marriage, that's not the role of government to create institutions that are not of its gifting. I don't think it is the role of the state to define what marriage is."

The state not only defines legal rights, it's also the only institution that speaks to ALL of civil society. As it stands now, the state is saying to civil society: "same-sex couples are SEPARATE from the heterosexual standard {sotto voce} and we all know separate is *unequal*".

It absolutely IS the role of the state to state that all spousal unions are EQUAL in the eyes of the law, by calling them the one, unified term: marriage.

Sentamu doesn't get it (the equality promised to ALL the children of God).

Posted by JCF at Thursday, 17 May 2012 at 9:58pm BST

Despite His Grace's protestation that the Church does not discriminate against Gay Partnerships; this is not the case, nor ever has been. Employment of such persons is just one area of discrimination.

Posted by Father Ron Smith at Friday, 18 May 2012 at 1:30am BST

"Is there such a thing, at a deeply ontological level, as "a" Christian?"

You are not your own. Your life is hid with God in Christ. So goes the NT declaration.

But of course, we are now in a fully new modality. Communion without Baptism in TEC.

And at the same time, the cruciality of the TEC Baptismal Covenant.

On it goes...

'Everyone did what was right in his/her own eyes'.

Posted by cseitz at Friday, 18 May 2012 at 1:51am BST

"So, by all means, let's abandon the normal tools of logic on TA in furtherance of empty self-excusing rhetoric."

There is no logic in denying one group of people something another group of people takes for granted, other than the logic of power and an irrational feeling of moral superiority that cannot be backed up by any logic or factual observation.

Self-excusing rhetoric comes from those who insist on being intrinsically superior, special pleading comes from those who insist on being seen as so special that they cannot possibly be expected to treat others as equal.

By all means - let's stop it!!

Posted by Erika Baker at Friday, 18 May 2012 at 8:29am BST

"let's abandon the normal tools of logic on TA" David Shepherd

The normal tools of logic would also question the premise of the existence of a god or gods and whether the Bible has any more authority than a telephone directory.

Posted by Laurence C. at Friday, 18 May 2012 at 8:34am BST

Dr Sentamu has been badly let down by his speechwriters. For a start they might have spelt the names Wollstonecraft and Millett correctly (the former silently corrected by the Guardian's subs when they reposted the article).

The piece is bad history, bad law, and bad argument. To add to the bad law and bad argument listed by Scot and others above, the speechwriters totally misrepresent the Ghaidan case. Lord Millett was in a minority of one. the majority of the court rejected his argument. The speechwriters must have known this. Archbishops should not deliver speeches that are deliberately misleading.

As to the claim that the C of E supported the Civil Partnerships Bill, I have checked every speech and vote by a bishop on the Bill when it went through in 2004.

The following spoke in support:

Oxford
Worcester
Chelmsford.

The following spoke against:

Peterborough
Rochester
Southwell
Winchester
Chester.

Six bishops supported a wrecking amendment by Baroness O'Cathain that almost killed the Bill; only one (Worcester) opposed it.

The Bill could be enacted only when the Commons had insisted on removing the O'Cathain amendment.

Posted by Iain McLean at Friday, 18 May 2012 at 9:31am BST

I read this article three times trying to understand the contortions/distortions of meaning in it. There are so many holes in his argument I wouldn't know where to start or frankly want to spend the time on it after so many fruitless debates already. His interpretation of what it means to be "equal" is his own and those of others who are discriminating against women, gays - and blacks too. You are right JCF and others - he just doesn't get it and doesn't want to!

Posted by sally Barnes at Friday, 18 May 2012 at 9:56am BST

". . I have pastorally supported people in same sex relationships. . . "

Indicating what a really sad state the availability of pastoral support in CofE is.

Posted by MarkBrunson at Friday, 18 May 2012 at 10:52am BST

"There are so many holes in his argument I wouldn't know where to start or frankly want to spend the time on it ...." sally Barnes

My thoughts exactly! I was so confused by his poor thinking and alarmed that this guy was even being considered for Canterbury .....
Thanks to Scot for his piece .... but really!

The letter from the gay man reminded me of the black slaves writing to MP's pleading to be allowed to remain slaves as this was their proper station.......

I see I am not to marry because I do not need or deserve this!!
Marriage is a vocation! Chris and I feel called to the married state ........ Oh, bother, what are we going to do with such awful argument.

Posted by Martin Reynolds at Friday, 18 May 2012 at 12:28pm BST

His Grace of York visited LGBT bloodrenched Jamaica (which happens to have a brand new Prime Minister and she wants to repeal the old English ¨buggery¨ Laws)...Archbishop John said nothing about equality for LGBT people but did remark on how certain churches/leaders must be held accountable for their actions (Gay and Lesbian Bishops elections?) of course that was shortly before the diocese of York voted in favor of the punitive Anglican Covenant when he returned home...ah yes, such a trustworthy guy who ¨pastorally supports¨ the Gay? For me, I trust him not...not at all...I don´t want this potential ¨first amongst us¨ to cast ANYONE out into ¨two-tiered¨ Anglican darkness...he voted YES on the Anglican Covenant and refuses to explain that politics-at-church anti-LGBT mess.

Posted by Leonardo Ricardo at Friday, 18 May 2012 at 1:49pm BST

I think all this pious antagonism towards gays and lesbians has nothing to do with either religion or morality. In the end, it is all just so much supremacism tricked out in religious drag. It is all about who gets to decide what's "normal" and who gets to speak for God.

Posted by Counterlight at Friday, 18 May 2012 at 4:42pm BST

I read the comments here hoping that the TA people would actually engage his arguments. No one addressed his comments that before the law in England those in marriage and those in civil partnership have equal rights. Is this not true? (Some comments here equated it with remaining in slavery, really??? Equal rights before the law is like a slave wishing to remain a slave? Is that rational?) Or is it simply that this difference in terminology *feels* like apartheid (even though it isn't because both have the same rights)? Or is it simply that his acknowledging the difference between marriage and civil partnerships is yet unacceptable because the people here demand that the only true equality means that we must all pretend that the union of two people of the same sex is identical to the union of two people of the opposite sex? And if so, how can this demand be considered rational for people on a "Thinking Anglicans" blog? How can you insist uniformity of terminology when there is such vast difference in the nature of the union? Can anyone engage the "mystery" of marriage and +Sentamu's distinction? Or is it just plain easier and more fun in a mean sort of way to discard him as hateful?

Posted by Rob at Friday, 18 May 2012 at 4:45pm BST

Actually, the special pleading is to maintain that the mere attempt at outward semblance creates equivalence. Especially when, in essence, it isn't!

A pronouncement of non-equivalence is no more a declaration of superiority than the rejection of other claims for State support, validation and benefits demanded by those who have not met the required conditions for validity. For example, the denial of maternity leave to men is not because women are superior to men. Neither is it a special pleading to do so. Paternity leave is the appropriate parallel entitlement.

Liberty rights (freedom from hindrance in private actions) and claim rights (demands for public validation as equivalent) are not the same. Claim rights always involve a reciprocal demand by the State that claimants meet its conditions.

Posted by David Shepherd at Friday, 18 May 2012 at 5:37pm BST

Dr. Seitz, I'm at a loss to understand the relevance, or even the meaning, of most of your comment, but would remind you that no one is born a Christian. The Christian life is something into which one is adopted, by the grace of God and through the ministry of the church, in the sacrament of baptism.

Sexual orientation may not be "ontological" but it is at least evidently not something, for most people if not all, consciously adopted or deliberately conferred upon one in infancy.

Posted by Tobias Haller at Friday, 18 May 2012 at 5:43pm BST

Rob
my Civil Partnership is not recognised when I travel to countries that accept same sex marriage, but straight marriages are.
This is not being legally equal, this is my own Government giving my relationship a lesser status than those of married people.

The "slave" metaphor arises because I am completely powerless to determine my own fate.
In civil discussion about my rights at least includes me, yet it is still largely straight people who get to decide for me what value my relationship has and what I'm allowed to call it.

In the church it's even worse because those making the decisions don't talk with me and the likes of me but about us. They question my moral status, setting themselves up as judge and jury at the same time.

The first time I experienced such a difference in power was in South Africa when we had lunch with in a restaurant with a group of liberal whites who were debating what rights to grant blacks and how to do it.
We were served by black staff - the people whose fate we were debating, and no-one even acknowledged them.
Symbolism is important. The symbolism at that table was indicative of the state of a country.
The symbolism of Gene Robinson outside Lambeth is indicative of just how much "valuing difference", "telling truth in love" and "pastoral care" there actually is in the church for people like me.

These are words that have absolutely no genuine content.

Maybe when you're on the other side of it you really cannot understand the level of frustration when, time and time again, people make pronouncements that, however carefully worded, all end in "you're out".

When he talks of speaking "the" truth in love, he actually speaks "his" truth and it sure doesn't feel like love.

If you truly love people you treat them as your equal.

At the end of the day the issue is that Sentamu isn't entitled to make decisions about my own life and about my legal status. My Government is entitled to do that.
Whether he privately supports my marriage or believes it to be immoral is his problem.
He has no moral right to impose his views on me.

Why should I respect someone who treats me like this?


Posted by Erika Baker at Saturday, 19 May 2012 at 7:34pm BST

"...people here demand that the only true equality means that we must all pretend that the union of two people of the same sex is identical to the union of two people of the opposite sex?...Or is it just plain easier and more fun in a mean sort of way to discard him as hateful?"

Rob, how are we to, together, "engage arguments" on a "rational" basis, when you're as tendentious as above?

I'm not pretending, and I don't believe I am being "mean" to Sentamu. He is just speaking from a position of not inconsiderable power-over, saying "NO---not while I have a say!" to people who want to get *married*. WHO is being mean?

Posted by JCF at Saturday, 19 May 2012 at 10:53pm BST

As matter of fact Rob I did engage with one of the arguments (see above) but
a they are arguments we have heard too often, debated too frequently,and to which we have answers we consider more than sufficient.
b it is as self-apparent and axiomatic to me that the marriage of two persons of the same sex is the same thing in its essentials as a different sex marriage, as it is apparent and axiomatic to you that it is not. All I can do is to produce anecdotal evidence that it is so - I am not sure it will convince you.

Posted by Rosemary Hannah at Saturday, 19 May 2012 at 11:25pm BST

David: "empty self-excusing rhetoric"

David, many contributors here at 'Thinking Anglicans' support Christian endorsement of gay and lesbian love, not because of rhetorical statements, but because real men and real women, in loving, caring relationships as deep as heterosexual relationships, deserve Christian acceptance and recognition for their fidelity, their shared lives, their tender intimacy, and their commitment to one another in good times and in bad times.

There is no need for "self-excusing" because there is nothing to be 'excused'. Love and care and tenderness and faithfulness do not need to be 'excused'.

Rhetoric is not the issue when around our world, gay and lesbian couples are being persecuted, discriminated against, beaten up, imprisoned; and indeed vilified by the Church.

There is no need for rhetoric. Reality is raw enough.

If you don't favour gay relationships, just have a heterosexual relationship.

And I will respect you for that.

I respect two men, or two women, just as much.

Their love and fidelity are the same as anyone else's.

When church leaders speak of "pastoral support" for gay couples, but still condemn their intimate relationships and vilify their lives, I call that sugar-coating, and failed rhetoric.

And so the discrimination against gay and lesbian people by the church goes on...

Here at 'Thinking Anglicans' we are talking about people's lives, not rhetoric.

I am heterosexual. I can safely say that the threat to heterosexual marriage is the failure of heterosexual relationships. It has absolutely *nothing* to do with gay and lesbian couples.

In the end, the Church can quite rightly be ignored on this issue.

Because so much of the Church continues to vilify these relationships of love.

Epic fail.

Posted by Susannah Clark at Saturday, 19 May 2012 at 11:48pm BST

Susannah:
By 'self-excusing rhetoric', I mean the use of parallels that might arouse a sympathetic response, but which, on closer inspection, apply a subjective exemption (self-excuse) from the normal tools of logic.

I would invite everyone hear to read Leif Wenar's seminal work on rights entitled the nature of the claim: http://wenar.info/WenarQuaText1-12.pdf

He first establishes that claim-rights are predicated upon a system of norms in which persons in a particular capacity owe a duty towards those in another capacity. His focus is not on marriage, but he sheds considerable light on the notion of a right to marry.

It's the respective exemplar roles of the parties, rather than particular instances, to which society attributes desires that are consonant with the interests of the whole society, even if those roles are not universally applicable. Society then recognises a claim agains itself in helping to fulfil these desires as a right.

He admits, 'We approach desire-attribution to natural kinds by looking once more at roles, this time at cases where an earlier understanding of a role has begun to decay. A desire, once confidently attached to a role, now seems uncertain. The game has changed. Nonetheless we continue to wish to ascribe the old right to the role, and so we have sought a new basis on which to assert the role-based desire.'

His remedy is to introduce the concept of kind: 'corresponding to the Latin genus. A kind is a set of entities that share defining characteristics.' So, the liberal belief is that, if the desire for mutual fidelity and life-long commitment are the only remaining defining characteristics of marriage, any relationship that exhibits those characteristics should be recognised *as* marriage. Of course, if I ask whether 'any' is truly meant. a host of Levitical restrictions are held by the proponents of gay marriage to still apply. Therein lies the inconsistency.

Posted by David Shepherd at Sunday, 20 May 2012 at 10:53am BST

'Equal but different' - oh, as in women, who are equal to men but must have no authority. Or as in apartheid. Nah - not buying it

Posted by Rosemary Hannah at Sunday, 20 May 2012 at 3:17pm BST

Dear David,

The fact remains that heterosexual marriage is not threatened by gay and lesbian couples getting married as well. The threat to heterosexual marriage comes from people who are heterosexual.

The Church can quite rightly be ignored on this issue, because so much of the Church continues to vilify these relationships of love.

The Church can believe what it likes about gay and lesbian sex, but other people really don't need to listen, because the Church's views are irrelevant to them, except that they encourage homophobic people, and therefore contribute to harm.

If marriage supports the fidelity and commitment of heterosexual couples, and offers a public commitment before God and the community, in a context of love and care... it can offer that same support to gay and lesbian couples too.

It only takes a generosity of love.

It is entirely practical.

No heterosexual marriage is harmed by a gay couple getting married. Heterosexual marriage is only harmed by the breakdown of relationship, or life changes, or infidelity, of heterosexual partners themselves.

The Church is just perpetuating the marginalisation and stigmatisation and vilification of people's love and faithfulness and tender care for each other.

That is why I describe this abdication of leadership as epic fail.

Anglican leaders are too often running scared of reaction from gay opponents, so LGBT justice is discreetly handled, with a kind of "Don't ask, don't tell" mentality, and airbrushing of the issue from the surface of diocesaan websites, and avoidance of acknowledgment that gay and lesbian Christians are leading good and sacrificial lives - with integrity - within the Anglican churches. Everything is handled softly-softly, and everything is delayed, and justice is postponed. The human decency of gay or lesbian love is left ghettoised in the shadows. People are denied leadership, despite their obvious gifts, because they happen to have a minority orientation.

Worst of all, the Church declines to move on from a default position that *still* vilifies gay sex. Psychology is ignored. Natural attraction and love are ignored. People's lives... perfectly good lives... get vilified and branded as if abominations before God. Yet what's going on is love. Dogma is perpetuating prejudice. Worldwide it is killing people, and at the very least, diminishing people's lives.

It's time for the Church to change.

Susannah

Posted by Susannah Clark at Sunday, 20 May 2012 at 3:52pm BST

Susannah:

Your dichotomy is false. Marriage is harmed by any who fail to live up to its high calling, whether gay or straight.
Nevertheless, there are relationships that, by their manner of constitution, negate a crucial benefit that marriage delivers to society. Marriage holds forth a pattern to each generation of respect for the primacy of the mutually surrendered rights of sexual union, first as rights over each other and from which all ensuing genetic family rights are given priority over non-genetic claims.

Gay relationships may deliver a lasting bond of interpersonal commitment. It is still not the exemplar and well-spring from which genetic rights can be accorded priority over all other claims. The recent case in the US in which, after the break-up of a civil union, a birth mother was given custody, rather than the genetic mother amply demonstrates the moral quandary that has ensued.

No harm?

Posted by David Shepherd at Sunday, 20 May 2012 at 7:53pm BST

David. Do you actually know any homosexual people whom you can accord a degree of human respect? If such people are outside of your own narrow area of human relationships, then it could be difficult for you to understand their basic human need of warm, loving relationships.

If you are a priest, you need to get off your very high horse, and try to find some common humanity with these minority sharers in our common human condition; doing your very best to find some ground on which to engage in meaningfully humane conversation with them. Otherwise, I fear you are speaking in a void that cannot be bridged.

Jesus said: "I came, not to heal the well, but the sick", and on that basis we all need the Physician

Posted by Father Ron Smith at Monday, 21 May 2012 at 1:23am BST

"The recent case in the US in which, after the break-up of a civil union, a birth mother was given custody, rather than the genetic mother amply demonstrates the moral quandary that has ensued."

Most people who use IVF and surrogacy are straight infertile couples.

If this worries you we ought to debate the morals of using assisted conception not same sex relationships.

Posted by Erika Baker at Monday, 21 May 2012 at 11:07am BST

David:

First of all, please explain the difference between "birth mother" and "genetic mother".

Second, you actually make our point for us--if the relationship in question had been a *marriage*, as opposed to a civil union, in most states of the US there would have been no question of custody, as the spouse in a marriage would always be presumed to have custody of any children.

Posted by Pat O'Neill at Monday, 21 May 2012 at 11:27am BST

'First of all, please explain the difference between "birth mother" and "genetic mother".' Pat O'Neill

The birth mother is the woman who physically gives birth to the baby. The baby could be the result of implanting another woman's fertilised egg in the birth mother. That second woman would be the baby's genetic mother but not its birth mother.

Posted by Laurence C. at Monday, 21 May 2012 at 7:15pm BST

Pat,

The genetic mother donated the egg to be fertilized, while her partner was implanted and carried the child to full term, hence she was the birth mother. Since Florida law considered the egg-donation to relinquishment of maternal rights automatically, custody was initially awarded to the birth mother. This decision was overturned on appeal.

Access to marriage would not have changed the reading of Section 742.14 of the Florida legal code to demand relinquishing maternal rights as a means of preventing a later donor custody claim (even if classing the genetic mother as a donor was too restrictive). It doesn't make your point for you.

Family law is built on a structure of genetic rights that cascade from the font of the mutually surrendered rights of sexual union. Straight infertile partners do not normally become the joint IVF donor and surrogate mothers with their parental rights being so vulnerable to legal contest.

For a moment, consider the citizen's right to free speech. Some would predicate this upon the reciprocal duty of citizens to speak out on matters of public importance, yet many today would not consider it their duty. As Wenar says of former times, 'the role-based desire to speak out was duty-derived: it was part of a citizen’s job'.

If many citizens no longer see this as a duty, (or at least no more a duty than procreation), what do we mean when we say, 'The citizen speaks out with his heart, but votes with his pocket-book.' ? Well, this is a kind-norm.

'The distinctive logic of kind-norm statements models what Michael Thompson calls natural-historical judgments, such as “the lion wants to roam free.” Such statements are based on an exemplar, and so can remain true even though they are not universal generalizations. “The lion hunts in packs” can be true even though Elsa, in captivity, never hunts. Similarly, “The citizen speaks out on matters of public moment” can be true even when many, even most, citizens speak out not at all. The attribution of the underlying desire (“The citizen wants to speak out...”) can be correct even when most individuals who are citizens evidence no such desire. A more accurate rendering would be: 'the citizen has *reason to want* to speak out...'

Much of the existing marriage jurisprudence represents a kind-norm. You may question the current kind-norm exemplar of traditional marriage, but it remains a valid means of establishing a basis for claim-rights.

Posted by David Shepherd at Monday, 21 May 2012 at 8:57pm BST

David: "Your dichotomy is false. Marriage is harmed by any who fail to live up to its high calling, whether gay or straight."

Dear David,

Gay and lesbian couples have as much right to the "high calling" of marriage as anyone else.

Otherwise they are relegated to second-class citizens.

It's not a dichotomy to point out, as I did, that it is heterosexual participants in marriage who actually damage marriage through their human failings, their fallible lives, or through life changes, or through infidelity.

The breakdown of marriage in modern society has NOTHING to do with gay and lesbian couples, and EVERYTHING to do with heterosexual couples themselves.

If gay or lesbian couples cannot have genetic children of their own (but in fact they can), they can still raise their children in the security of marriage, share lives of fidelity inside marriage, demonstrate constancy to society within marriage, care sacrificially for one another inside marriage, offer vows before God in the holy sacrament of marriage, receive God's blessing on their marriage, be an example of commitment to others through their marriage.

Marriage is a very good thing. It is indeed a 'high calling'.

(continued...)

Posted by Susannah Clark at Monday, 21 May 2012 at 10:41pm BST

(...continued)

But really, it seems to me that denying that 'high calling' to committed people "because I don't like your orientation" is all to do with dogma and rigidity, and seeks to deny the very real benefits both for the people themselves and society at large, that can spring from the example of marriage lived out by couples, who seek God's blessing and their Church's blessing on the "high calling" to love with fidelity and care and sacrifice through thick and thin, and who endorse marriage, and who can be exemplars of marriage in a modern, diverse and tolerant society that we struggle hard in the UK to promote, but which seems to leave some sections of the church behind.

There is no dichotomy.

The Church in too many places *still* regards gay sex as sin. Still discriminates between heterosexual and homosexual couples. Still excludes gay people from gifted leadership because they are gay.

And marriage is threatened by too little love, not too much love. And by heterosexual failure.

There is no dichotomy in heterosexual failure. It is simply failure.

Nothing to do with the people you're currently seeking to exclude from it.

In many households today, marriage is like a "failed state" - not because of genetic inheritance rights, not because of 'the gays', but because of human frailty or selfishness within the heterosexual relationships themselves.

Is it too much to understand that God loves fidelity and love and commitment in human relationships, and that marriage provides a holy framework for those precious values, and that instead of deterring people from embracing marriage, we should be encouraging them, and simply, humbly, praying to God to bless gay and lesbian couples in marriages every bit as decent and caring as anyone else's.

If some people have children in those marriages, that is a joyful blessing too. Not everyone *can* have children. But their marriages are blessed, and a blessing to others, nonetheless.

Again I appeal for the generosity of love.

Susannah

Posted by Susannah Clark at Monday, 21 May 2012 at 10:48pm BST

Dear Susannah:

Your last posts passionately insist that marriage is only predicated upon desire, but not capacity. I don't have the capacity to qualify for maternal leave. I still love my children.

The exemplar is not hampered by the need for a universal capacity or even desire to procreate. The natural-historical judgement is true because it defines the kind-norm of marriage.

The exemplar is that spouses (qua spouses) have a reason to want *and* capacity to surrender genetic rights mutually as a basis for shared genetic rights in the future. On that basis, the State attributes the desire to surrender those rights as appropriate to the needs of society and accords them support through the status of marriage. This surrender is presumed by sexual union, once mutual consent is given in marriage.

Non-consummation may only indicate the lack of intent to surrender these rights. The marriage is voidable.

Any impediment established by the lack of genuine consent, or lack of capacity to surrender genetic rights to each other in sexual union is void. Even the infertile can demonstrate their intent to surrender their genetic rights. In which case, their adopted children are a shared responsibility and reward.

Posted by David Shepherd at Tuesday, 22 May 2012 at 8:31am BST

Any impediment established by the lack of genuine consent, or lack of capacity to surrender genetic rights to each other in sexual union means the marriage is void.

Posted by David Shepherd at Tuesday, 22 May 2012 at 8:53am BST

"Any impediment established by the lack of genuine consent, or lack of capacity to surrender genetic rights to each other in sexual union means the marriage is void."

So "marriages of convenience" that produce no offspring are void as well?

What a crock.

And by the way, who or what are you quoting?

Posted by evensongjunkie at Tuesday, 22 May 2012 at 12:29pm BST

evensongjunkie:
Alleged Crock 1: Lack of Consent or Non-consummation = Voidable:
Matrimonial Causes Act 1973:

Grounds on which a marriage is voidable.

A marriage celebrated after 31st July 1971 shall be voidable on the following grounds only, that is to say—
(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it;
(b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;
(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
(d) that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of [the Mental Health Act 1983] of such a kind or to such an extent as to be unfitted for marriage;
(e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form;
(f) that at the time of the marriage the respondent was pregnant by some person other than the petitioner.
[(g)that an interim gender recognition certificate under the Gender Recognition Act 2004 has, after the time of the marriage, been issued to either party to the marriage;] .
[(h) that the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004.]

Alleged Crock 2: Void Marriages through lack of capacity:

A marriage celebrated after 31st July 1971 shall be void on the following grounds only, that is to say—
(a) that it is not a valid marriage under the provisions of [the [Marriage Acts 1949 to 1986]] (that is to say where— .
(i) the parties are within the prohibited degrees of relationship;
(ii) either party is under the age of sixteen; or .
(iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage);
(b) that at the time of the marriage either party was already lawfully married [F13or a civil partner];
(c) that the parties are not respectively male and female;
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.

Posted by David Shepherd at Tuesday, 22 May 2012 at 1:58pm BST

Surrender genetic rights? Is this, to use the language of David and evensonjunkie, a crock? Even if it is, I'm not sure I can grasp the logic.

Posted by Craig Nelson at Tuesday, 22 May 2012 at 5:08pm BST

David - the way law works is this. Human beings decide (to the best of their ability)what is just and right. They then cause their representatives to make laws which embody this. In the past, this included the firm belief that marriage was between a man and a woman. It included the firm belief that it ought to be consummated by sexual intercourse. It is not beyond the wit of lawyers, working for humankind, to redefine marriage so that it is open to same sex couples, and to amend the physical element.

Law can change and it does that all the time.


Moreover, many marriages which are technically voidable are never voided - most particularly the case of the woman at the time carrying the child of another man, a circumstance all too common.

Posted by Rosemary Hannah at Tuesday, 22 May 2012 at 7:11pm BST

Unbelievably, while editing I pressed post -

This should include

Moreover, no marriage has ever been voidable on the grounds of the infertility of one or both parties.

Posted by Rosemary Hannah at Tuesday, 22 May 2012 at 7:12pm BST

Craig:

1. If it was a crock, it wouldn't be supported, as shown, by MCA 1973.
2. If it was crock, it wouldn't be supported by ECHR. In the case of the recent ECHR judgement against French civil partners, Gas and Dubois vs France, the mutual surrender of genetic rights between marriage partners is assumed to be shared only in marriage, not civil partnerships. That was why Ms. Gas could not surrender her parental rights to her civil partner, Ms.Dubois. Opposite sex civil partners would have been equally affected.

Posted by David Shepherd at Tuesday, 22 May 2012 at 8:02pm BST

Rosemary:

Show me where I suggested that infertility made a marriage voidable? I did say that 'The exemplar is that spouses (qua spouses) have a reason to want *and* capacity to surrender genetic rights mutually'. That reason is not based on fertility.

That is why the French government was supported by the ECHR in allowing a parent to surrender their parental rights to an adoptive spouse, but not to a civil partner.

BTW, thanks for update on the political process. Before 'human beings (to the best of their ability) decide on what is just and right', they normally debate the ideas rationally. Kind of like we're doing now.

Posted by David Shepherd at Tuesday, 22 May 2012 at 9:34pm BST

Fascinating David. You go to extraordinary lengths to quote via civil law where an existing marriage can be declared voided. In what way does this apply to people to whom marriage is denied to begin with?

Yes, we know the heterosexual community has created elaborate labyrinths of law to get themselves out of a sacred vow both in secular and canon law. Other than proving what a expensive farce marriage/matrimony is, how again does this disprove the expansion of (at least civil) law to the LGBT community?

Posted by evensongjunkie at Wednesday, 23 May 2012 at 1:37am BST

To be honest, David, all your technical arguments have lost me. They're passing through my brain like a wall of jargon. They're not registering emotionally.

Two people who love each other, want to get married.

They should be able to.

It harms nobody.

It is their decision, their self-determination.

They love one another. They want to be married.

The emotional argument of true love and decent fidelity pwns the dogma, the legal technicalities, and the prejudice of the past.

I believe in true love. I believe in everyone having a right to be married.

I'm not talking "desire" as you charge me! I'm talking love, care, devotion, tenderness, service, sacrifice, companionship. Intimate sexual expression may also take place. But it's not all about sex.

I'm not interested in "genetic rights". That's never seemed liked the reason people get married. They get married because they love one another.

I simply don't believe you have more right than a gay or lesbian individual to get married.

It's simple. If two people love each other and want to get married, let them.

It's not your business, or the church's business, to stop them.

Just focus on your own marriage (and may God bless you).

Stop trying to tell other people who they can or cannot marry. Stop getting in the way of their love.

The Church's obstruction is about dogma. It has lost sight of the simplicity and purity of two people's love and fidelity.

The Church is being left behind, David, and many decent good people look on from the outside and are appalled.

People outside and inside the Church will just ignore this dogmatism in the end.

Love is too important to be vilified and 'othered' and 'kept apart', with marriage segregated and reserved for just 'us' but not 'them'.

Love is so important.

It would be such a beautiful thing if we just let gay and lesbian couples decide for themselves whether they thought marriage was a sacramental blessing and vessel for their love.

I'm arguing very emotionally, on purpose.

Sincerely and with good will,
Susannah

Posted by Susannah Clark at Wednesday, 23 May 2012 at 1:51am BST

Dear David,

Is it mentioned in the MCA?

Posted by Craig Nelson at Wednesday, 23 May 2012 at 1:51am BST

I am finding this conversation astonishing.

Legally, a marriage is valid from the moment the register has been signed, and from a religious point of view it is valid at the latest from the moment the presiding priest pronounces the couple man and wife.
If one had a fatal heart attack immediately after there would be no doubt about the legal status of the remaining partner.

So what is so passionately defended as the essence of marriage is one option for the dissolution of a vow of lifelong, faithful commitment to one another!

People (not only here but I have had this conversation with other people on other blogs recently) who believe that divorce is wrong and unbiblical argue passionately that one single criterion for voiding a marriage is so important, that it is the essence of marriage itself, that it cannot possibly be changed or modified to include gay people.

Our understanding of marriage can include knowingly infertile people getting married, it can include people who do not want to have children getting married, it can include the legal and moral complexities associated with assisted conception and adoption.

But for some inexplicable reason, it can only fully include those if they involve straight people.

Because as long as there is a theoretical legal opt out for straight couples after the fact, all is well.

Posted by Erika Baker at Wednesday, 23 May 2012 at 8:26am BST

evensongjunkie:
Your disdain for the very laws that you want to accommodate gay relationships is surprising. After all, we are talking about changes to civil marriage, aren't we? Then, it behoves us to understand exactly why it is framed as it is, i.e. not with homophobic intent. That being the case, it's worth considering the reason for protecting the genetic rights that are understood to be mutually and normatively surrendered in marriage and why anything less than this creates a legal morass.

Susannah:
I'm sure that the Florida lesbian couple really loved each other. The State even gave their relationship legal recognition as of right. The legal system failed to foresee the debacle caused when there is no clarity over the mutual surrender of genetic rights or their priority over non-genetic claims.

Given that it's happened in France and the US already, it's not scaremongering to predict the same confusion here.

Of course, instead of considering consequences, you could bury your head in the sand and repeat the mindless mantras, 'but if two people love each other...' or 'their lived reality' ad infinitum.

I'm sorry, but this is *thinking* Anglicans.

Posted by David Shepherd at Wednesday, 23 May 2012 at 8:29am BST

I don't understand this genetic rights case being cited here.

Was it a case that one partner of the couple provided the egg and the other had it implanted in her womb and gave birth to the baby?
In that case, the ensuing custody battle is no different from any other custody battle between divorcing parents.

In the UK the decision would be based on the best interest of the child, not some abstract genetic rights. The assessment would include the 2 partner's practical ability to raise the child. In any case, courts would encourage shared parenting as this is in the best interest of the child.

Or did a woman outside the relationship donate an egg to a lesbian couple? Then that situation is no different from a woman outside a marriage donating an egg to an infertile married woman.

The law is already perfectly equipped to deal with these cases. The sex of the parents has absolutley nothing to do with it.

Posted by Erika Baker at Wednesday, 23 May 2012 at 9:43am BST

Okay. So, how often does an fertile sperm-donor husband bring a custody claim with a fertile egg-donor third-party against the fertile birth mother ex-wife? Just another day in family court, eh?

Also, from the English translation of the ECHR case: 'On 4 July 2006 the court observed that the statutory requirements for the adoption had been met and that it had been demonstrated that Ms Gas and Ms Dubois were actively and jointly involved in the child’s upbringing, caring for and showing affection to her. However, it refused the application on the grounds that the adoption would have legal implications which ran counter to the applicants’ intentions and the child’s best interests.'

Your view of achieving the child's best interests went a bit awry there, didn't it? How abstract was Ms. Gas's attempt to transfer her genetic rights over her offspring to Ms. Dubois?

Yet, to top it all off, the ECHR confirmed that Article 12 'does not require States to open marriage to a homosexual couple'. Also, that 'if a State chooses to provide same-sex couples with an alternative means of recognition, it enjoys a certain margin of appreciation to decide on the exact nature of the status conferred'.

I think Strasbourg means that Civil Partnerships won't attract censure for violating human rights, don't you?

Posted by David Shepherd at Wednesday, 23 May 2012 at 2:05pm BST

David,
so you're saying that one of the women ended up getting together with the woman who had donated the egg in the first place and the two got together to fight for custody of the child?

That is not dissimilar to a husband finding another partner outside marriage and fighting for custody of his children. I don't know how often it happens that the husband gets together with the egg donor but it's not outside the realm of possibility.

The problem is that a couple splits and is unable to work out shared parenting, so the court will have to decide who is the more appropriate parent for the child.

Pretty standard stuff.

And yes, in the case you cited the child's best interests do not appear to have been taken into account. Sad. But not inevitable.

If we stop thinking about this genetically for a minute but in terms of relationships, it really is no different to any of the millions of straight marriage break-ups every year all over the world that involve children, and with parents who cannot agree what is the best way of bringing up those children.

And the problems you cite are all to do with the complexities of assisted conception, not with sexuality.

Posted by Erika Baker at Wednesday, 23 May 2012 at 4:45pm BST

The other point to be made here is that we're talking as if the question of children will only arise if gay couples marry and that it can be prevented by not allowing them to get married.

But gay people, partnered, single, civil partnered or just living together can already adopt, foster, use assisted conception or have their own biological children.
This is legal reality and it's been reality for a number of years.

Whether the concept of marriage can be extended to include gay people or not will not change any of that. It is a completely different legal issue.

Posted by Erika Baker at Wednesday, 23 May 2012 at 6:05pm BST

Shepherd: Pointing out your quotation of existing law as it pertains to separation (divorce?) and dissolution of marriage and the absurd fact that you use to argue against the expansion of civil marriage law just proves how truly disdainful you are of people that you have no idea about.

The moment we get more protective of law and not the people that it serves is the day we've truly become askew.

Posted by evensongjunkie at Wednesday, 23 May 2012 at 7:59pm BST

Still have absolutely no idea what genetic rights are supposed to mean/be/connote.

I await enlightenment.

Posted by Craig Nelson at Wednesday, 23 May 2012 at 8:48pm BST

Please explain the concept "surrendering genetic rights." I'm not a lawyer and this notion is new to me. I've never heard this sort of language with respect to marriage either. Thanks in advance.

Posted by Mark Diebel at Wednesday, 23 May 2012 at 10:00pm BST

David Shepherd, I have a serious question. But I don't think you are brave enough to answer it. Not without a flood of meaningless words.

Do you know any gay people? Do you like them? Do you think that they are normal average everyday people too, who also deserve a chance at the pursuit of happiness and social respect? What do you --personally-- think of gays and lesbians?

Why do you fight against us so much? Why is your life so concerned with making our lives harder? How did we become your target?

I am asking this not for rhetorical purpose, but because I often ask myself why people like you hate us so much. What have we done to you?

Be honest. Don't go off on a tangent about some phrase I have used ("pursuit of happiness" or something like that). Honestly, please don't avoid my question with a diversion. I want to know why people like you think it to be so important to make our lives worse off. I really want to know. Simply and succinctly, letting your yes be yes and your no be no, please tell what you honestly think and feel when you think about gays and lesbians.

Do you see us as deserving of the same opportunities and realities of life that you hold out for straight people? Do you think of us as some sort of alien other, a problem on society (the "gay problem" as it were) or do you actually see us as humans, individuals, doing our best to live our lives? Seeking companionship and happiness and a place in society?

Are we even humans in your eyes? Please answer me. I wonder, often, how making our lives harder became so important for people like you.

Posted by Dennis in Chicago at Wednesday, 23 May 2012 at 11:43pm BST

Craig:
Perhaps the Council of Europe's draft recommendation on the rights and legal status of children and parental responsibilities (produced in the aftermath of the aformentioned decisions) will shed light http://eclj.org/PDF/Draft-recommendation-rights-legal-status-children-CDCJ-2011-15.pdf:

Principle 7 -
1. The woman who gives birth to the child should be considered as the legal mother regardless of genetic connection.
2. States may qualify the general principle by having other rules on the establishment of maternal affiliation.

Further, it is only the legal parent that has the right to contest parental affiliation.

This recommendation clearly establishes the birth mother as the legal mother (with full parental rights) regardless of her genetic connection to the child. If this is adopted by member states, the legal rights of the genetic mother will be supplanted. That's what I mean by the genetic rights that, in marriage, spouses are presumed through consummation to surrender to each other.

evensongjunkie:
The quotation is in respect of void and voidable marriages. That is the basis for establishing a marriage's validity. Nothing to do with divorce. On that point alone, your ensuing argument collapses. You just want to alter the thoroughly fair basis for marriage validity.

Erika:
The purpose of the law is to consider and pre-empt issues that are clearly within the realm of possibility. Bad law is merely reactive to these situations.

As the draft recommendations show, genetic rights are not an abstraction. The conditions for a valid marriage are there to protect the rights of both parties to marriage. The draft recommendation cited earlier subverts the rights that spouses are understood to have the capacity to surrender to each other through consummation in marriage. According the the draft recommendations, the 'best interest of the child' mantra, at least partly, means discard genetic rights in order to find a way around the accepted lack of capacity to demonstrate the surrender those rights to each other. It will save on future court time.

Posted by David Shepherd at Thursday, 24 May 2012 at 7:18am BST

"Surrendering genetic rights" is what mothers in the past had to do when their children were being adopted and the mothers never heard from them again.
Also surrendered in this were the rights of children to know where they came from and the possibility of establishing positive contact with their genetic families.

It is, again, a very old concept the law is well equipped to deal with.

And these days we know that it is best for the children to have as much contact with their genetic mother as possible and many adoptions include regular contact.

British courts have long started looking at this whole issue in terms of the rights of the children not of the parents and although we're not doing as well as we could yet, we're on the right track.

Posted by Erika Baker at Thursday, 24 May 2012 at 7:49am BST

The draft recommendation asserts the contrary. That 'the rights of children to know where they came from and the possibility of establishing positive contact with their genetic families' is not in the 'best interest of the child'.

All in a mad rush to end the traditional basis in marriage for establishing shared genetic rights through consummation, just so we can accommodate those really precious souls who don't have the capacity to do so.

Posted by David Shepherd at Thursday, 24 May 2012 at 8:13am BST

David
I'm not saying the genetic question isn't a moral and much more an emotional problem.

But it has been around for a long time. In the past it was all about adoption, or about a wife discovering that her husband had had a child out of wedlock that suddenly wanted maintenance and inheritance rights. Then modern technology added layers of complexity because it's harder to define who is what kind of parent.

But until very recently it has all been about sorting out the mess straight people make of their lives. In their millions.
And yet no-one has argued that straight people should therefore no longer be allowed to marry.

Only very recently has it become part of the mess gay people make of their lives.

I agree with you that we are far from having a satisfactory solution.

And obviously, the most satisfactory solution would be what is best for the children but you and I both know that warring parents are often poorly equipped to ignore their dislike for their former partner and to give the child what is truly best. And sometimes, with instable parents, it is genuinely difficult to know what is best and how to negotiate the emotional tightrope for all participants.

But a) none of that is intrinsically or even predominantly about same sex parents.

And b) it is already the lived situation of every separating parent and child which will not change whether we change our definition of marriage to enable it to include gay couples or whether we keep Civil Partnerships as a parallel institution with its 100% equal rights under family law.

Legally and logically, your argument cannot be part of a gay marriage discussion.

If you wanted to start a conversation somewhere on how we can best educate all kinds of parents to be mature enough to put their children first, I would happily assist you - it is a question that does trouble me a lot.
But to say that a group of people who is already perfectly allowed to have children on equal terms with married people should not marry in order to prevent them from having children is not a helpful contribution to either topic.

Posted by Erika Baker at Thursday, 24 May 2012 at 8:25am BST

@ Erika or whomever,

Erika: ""Surrendering genetic rights" is what mothers in the past had to do when their children were being adopted and the mothers never heard from them again. Also surrendered in this were the rights of children to know where they came from and the possibility of establishing positive contact with their genetic families."

Is David trying to pull one over? What does any of these statements mean?

1) "Marriage holds forth a pattern to each generation of respect for the primacy of the mutually surrendered rights of sexual union, first as rights over each other and from which all ensuing genetic family rights are given priority over non-genetic claims."

2) "Family law is built on a structure of genetic rights that cascade from the font of the mutually surrendered rights of sexual union."

3) "The exemplar is that spouses (qua spouses) have a reason to want *and* capacity to surrender genetic rights mutually as a basis for shared genetic rights in the future. On that basis, the State attributes the desire to surrender those rights as appropriate to the needs of society and accords them support through the status of marriage. This surrender is presumed by sexual union, once mutual consent is given in marriage."

None of this seems to do with adoption.

Posted by Mark Diebel at Thursday, 24 May 2012 at 1:32pm BST

Mark
"None of this seems to do with adoption."

I think there's a misunderstanding. I brought up adoption as a very early example of people giving up genetic rights. Because David seems to think that it’s only the arrival of gay people on the scene that is shaking the world in its natural foundations.

These days the legal grey zone is all about the various rights involved in artificial conception.

One of the big issues is that sperm donors wanted to remain anonymous and there has been a ruling that they must not be and that their children should be able to trace them at a later stage.
It really is a minefield because donations of sperm and eggs used to be an altruistic act or a paid act but without implying any future relationship with the resulting child, because it was thought that the married couple would become full parents for the child and that no further questions need to be asked or answered.

The question of whether that is in the child's best interest has grown around children talking about their own experience as someone who doesn't know "where they come from". And it is important that there are proper guidelines and laws.
Surrogacy has also caused problems because unlike donating eggs or sperm, giving birth to a baby and then handing it over is a major emotional event and it’s only understandable that some of the women later wanted contact with “their” babies.

It is a really major moral issue of our times.
The one thing it isn't is a gay issue because this statement of David's "All in a mad rush to end the traditional basis in marriage for establishing shared genetic rights through consummation, just so we can accommodate those really precious souls who don't have the capacity to do so." applies largely to infertile straight couples who have resorted to assisted conception for decades.

What I don’t know is how it helps the debate to call infertile straight couples "really precious souls who don't have the capacity to [have children]" and how that is an argument against gay marriage.

Posted by Erika Baker at Thursday, 24 May 2012 at 4:55pm BST

But everything to do with marriage...

Posted by David Shepherd at Thursday, 24 May 2012 at 7:47pm BST

David
It doesn't even have anything to do with marriage as assisted conception is available to co-habitating couples and to single people.

All it has to do with it trying to work out how best to solve messy situations when people, all kinds of people, break up and when previously anonymous donors in the background want to play a role in the life of the child they've helped to create, and when children brought into the world through donor arrangements grow up and ask for the right to find out more about their background.

Posted by Erika Baker at Friday, 25 May 2012 at 8:18am BST

'The capacity to do so' refers to the immediately preceding statement, 'share genetic rights through consummation'. That is not the same as 'the capacity to have children'. So why resort to attributing a position that the record of this thread shows that I did not make?

In fact, I expressly re-iterated to Rosemary: 'I did say that 'The exemplar is that spouses (qua spouses) have a reason to want *and* capacity to surrender genetic rights mutually'. That reason is not based on fertility.' Consummation and fertility are not the same thing.

So, does your attempt to distort my position in parenthesis really help your argument? Maybe you think that in an environment biased to your cause, it does. Maybe there are a few TA commenters who, regardless of their support for gay marriage, will distance themselves on this thread from your outright distortion.

Posted by David Shepherd at Friday, 25 May 2012 at 8:38am BST

'The capacity to do so' refers to the immediately preceding statement, 'share genetic rights through consummation'. That is not the same as 'the capacity to have children'. So why resort to attributing a position that the record of this thread shows that I did not make?

Because infertile people also lack the capacity to have children through consummation.

Your insistence on dividing people who cannot have children naturally into 2 different groups and to blame one of those groups, the smaller one by far, for all ills in the world is just not very logical.

Posted by Erika Baker at Friday, 25 May 2012 at 12:58pm BST

Here's the logic.

A marriage partner is presumed by our law to surrender genetic rights to their spouse through consummation. The rights are now shared without ever having children.

They could choose to have children by any other means, such as IVF, adoption or otherwise. However, the common legal understanding of a valid marriage is that the genetic rights are thenceforth shared.

Without a normative standard upon which those genetic rights are shared, the courts are left to either presume, resort to establishing the birth mother as the legal mother by legal fiat, or establish a multi-tiered system for recognising the genetic rights of those who can and cannot consummate.

This is why the current proposals want to leave issues of adultery and consummation to case law. It's a statute law minefield.

Posted by David Shepherd at Friday, 25 May 2012 at 4:08pm BST

So we're in a highly theoretical realm where not being able to share genetics is valued differently depending on whether you cannot share them because of infertility or because you cannot have the right kind of sex.

Where we're not actually interested in the genuine legal and moral questions of assisted conception, donors and surrogates and the resulting children at all.
These are just props in a "straight sex is good" "gay sex is bad" game.

And so we're back to your pathological obsession with sex - which is where I shall leave this conversation.

But I would strongly recommend you to engage with Dennis' question to you, if not on this forum then at least for yourself.

Posted by Erika Baker at Saturday, 26 May 2012 at 9:43am BST

Dear David,

Just let two people who love each other get married, whether they are male or female.

You don't marry someone because of genetic rights. You marry someone because you love them.

And you shouldn't stop them, just because you have a different sexual orientation to theirs.

It's their love, their lives, their commitment, their decency, their tenderness, their sacrifice, and their desire for sacramental blessing on their faithfulness and devotion.

I find it extraordinary that you gloss over the primacy of this love, and develop lines of logic that can be handled by law and adapted for an era of marriage equality.

Just let love win.

Just let all people find consecration and sacrament for their loving committed relationships, free from discrimination.

Everything else can be sorted. Genetic rights issues exist, whether people are married or partners, whether a child is adopted or not. What matters is a duty of care, which the law should back up.

None of this duty of care should be used as a technical device to block justice for people who love one another, regardless of their orientation.

Two people love each other and want their faithfulness and commitment and tender intimacy to be consecrated in a sacramental marriage or, at very least, formalised in a legal secular marriage. They will probably want both if they are people of faith.

Their love matters as much as anyone else's. Their human decency deserves as much respect. Their desire for marriage should not be blocked simply because a minority hold dogmatic views against gay and lesbian orientation.

Yet the campaign against equal marriage is driven by dogma and the vilification of gay and lesbian sex.

Posted by Susannah Clark at Saturday, 26 May 2012 at 3:52pm BST

"They could choose to have children by any other means, such as IVF, adoption or otherwise. However, the common legal understanding of a valid marriage is that the genetic rights are thenceforth shared."

This is not actually true because many of the court cases have precisely involved the rights mothers who have given their children up for adoption, the rights of the adopted child to find out about its genetic parents and, recently, the rights of donor children to trace their genetic parent hence the loss of anonymity for sperm donors.

In a very real way "genetic" means "the biological origins of the child" and in the case of assisted conception and adoption this is not something that depends on infertile parents having the right kind of sex.


Posted by Erika Baker at Saturday, 26 May 2012 at 4:23pm BST

Nonsense. That an infertile couple can share genetic rights with each other through consummation refers to their equality within the marriage. That does not preclude the rights of a genetic mother external to the marriage, nor of their adoptive children to know their genetic parents.

Most gays, lesbians and bisexuals are perfectly fertile. Their sexual orientation does not render their reproductive organs redundant.

Unfortunately, until human cloning becomes widely available on the NHS, you must wrestle against a natural world that perpetuates gamete discrimination by combining cells that originate from a man and a woman.

BTW, there is a pattern. On The Guardian's CIF, I obsessed over atheism. I particularly picked on the smug atheists who could, on the one hand, support Stephen Hawking's unsubstantiated belief in alien life and the continued funding of the Search of Extra-Terrestrial Intelligence without concrete evidence. On the other, they condemned the 'blInd' faith that led Mother Teresa to serve the poor in Calcutta. I just hate inconsistent specious arguments.

Needless to say, I can count a few atheists among my close personal friends. My uncle has been an atheist since his university days, but to claim that made me unbiased would be mere tokenism.

I eventually realised that atheists are humans too and deserve equality. So now, to avoid the slightest whiff of inequality, I now believe that TA should accommodate more 'death of God' theology than it has. There's still hope for me.

Posted by David Shepherd at Sunday, 27 May 2012 at 1:44pm BST

And still no answer to my question, David.

I know that it is a tough one. But this is personal; it isn't a theoretical discussion. It involves the real lives of real people. Real people like me and my partner (of over ten years now). Please go back and read my question above and try to answer it.

What do you think of us, and why the obsession with making our lives harder? What have we done to you?

Posted by Dennis in Chicago at Tuesday, 29 May 2012 at 5:11pm BST

'Do you know any gay people? Do you like them? Do you think that they are normal average everyday people too, who also deserve a chance at the pursuit of happiness and social respect? What do you --personally-- think of gays and lesbians?'

I have personal friendships with gay and straight people. I realise that there's limited space and to name any is to invite accusations of tokenism. Nevertheless, Hans has been a friend for about 10 years. He's a Swedish guy who is civil partnered and planning to adopt. Hans has no need for scripture to endorse his choices. He's not looking for religious validation of his relationship, so we agree to disagree. He has more fundamental disagreements with Christianity than Lambeth Conference Resolution 1.10. I like Hans for his nonchalant honesty. I like the fact that I can openly disagree on a topic without being told that I'm endangering my salvation to do so.

Again, I like Bill Dillworth for his wry sense of humour, sheer inquisitiveness and intellectual honesty.

There are others on TA who just don't like being challenged. Forget the gay marriage issue, we could be discussing the more abstruse aspects of Byzantine eschatology and they'd expect instant intellectual deference. Unreasoning deference is a quality that I lack.

I comment on a wide variety of topics on TA. I've taken some positions that contradict liberal orthodoxy. On other topics, like last year's UK riots, my comments wouldn't win any conservative endorsements. I regularly review my position in the light of valid arguments, but those who opine must bear careful scrutiny. Try, like others, to tie me up in knots, but I'm still just one voice that doesn't always sing in harmony with the TA chorus. I'm hardly capable of making a substantial impression on your distant life, unless you need universal validation.

Nevertheless, that's what 'Thinking Anglicans' is: a 'no-holds-barred', 'no-taboo-subject-off-limits' wrestling arena for thick-skinned thinkers. TA's the one place where 'earnestly contending for the faith' continues unabated.

There are some here who I like, there are some here that I'll never admit that I like. Others, I just plain dislike. All quite human really.

Posted by David Shepherd at Thursday, 31 May 2012 at 1:06am BST
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