That letter was discussed in an article by Aidan O’Neill originally published under the title Ties that bind. This article first appeared on 11 February 2006 in The Tablet, the Catholic weekly. www.thetablet.co.uk, and is reproduced here with permission.
Aidan O’Neill is a QC based in Scotland.
The article will I believe be of interest to Anglicans.
CIVIL PARTNERSHIPS AND THE SCOTTISH BISHOPS
by Aidan O’Neill
On 25 January 2006 the eight bishops who make up the Bishops’ Conference of Scotland issued a Pastoral Letter on Family Law, to be read in all parishes and distributed to Catholic households throughout Scotland. The signatory of the letter is the Archbishop of Glasgow, Mario Conti. In this letter Archbishop Conti condemns the Civil Partnership Act 2004, which makes provision for the registration and legal recognition in the United Kingdom of same-sex partnerships. He describes the 2004 Act as creating a “fiction of marriage” for same-sex couples by according to registered civil partners the same access to tax relief, inheritance rights, housing and social-security benefits as are available to married couples. At the same time he calls the Act “defective” on the grounds that it fails to make like provision for existing “family members who share their property and accept responsibility of care for one another”.
The Scottish bishops’ opposition to the legal recognition of same sex partnerships is clear from Archbishop Conti’s letter of complaint. They see it as constituting both insult and injury to marriage. But the presumptions and reasoning supporting this conclusion are less than clear, and need some unpacking.
In the first place, the Archbishop’s letter fails to take account of the fact that there exists a fundamental distinction between civil marriage as regulated by the State and sacramental marriage subject to the discipline and regulation of the (minority) Catholic Church. In Scotland, the State has long allowed for divorce and remarriage; the Church (in theory) does not.
In pre-Reformation Scotland the Catholic Church’s rules concerning the prohibited degrees of relationship which invalidated marriage were exploited by clergy and laity so as to permit a flourishing “divorce culture” among the unreformed pre-Protestant Scots. The Church’s rules – which constituted the law of the land prior to the Scottish Reformation in 1560 – were that no-one was permitted to marry another related to them within four degrees of consanguinity, affinity or spirituality. This meant that people who shared a common great-great-grandparent – whether related to them by blood, by marriage, or god-parenthood – could not validly marry one another without canonical dispensation. But such marriages were, of course, commonly entered into. Thus, if a divorce was subsequently considered expedient then the failure to obtain the appropriate dispensation at the time of marriage could be used to obtain an annulment from the Catholic Church authorities.
It was, in fact, to strengthen respect for the marriage bond – the practice of the canon law on marriage having fallen into disrepute – that the Reformed Protestant Church of Scotland promoted new legislation before the Scottish Parliament in the course of the 1560s. This civil legislation limited the relationships that invalidated marriage to the second degree (in conformity with the incest prohibitions contained in Chapter 18 of the Book of Leviticus) and allowed for divorce on the grounds of adultery or desertion and for remarriage in Church on the part of the wronged or innocent spouse. Thus the dominant reformed and Christian vision of marriage which has prevailed in Scotland for over 400 years is one which allows for divorce and remarriage – a view which the Catholic Church has not admitted.
Further the archbishop’s letter is – to use his own words – “disingenuous” when it seeks to use examples from “the other great world faiths in our midst” to support his views on marriage and the family. Jewish law has always made provision for divorce and remarriage during the lifetime of one’s former spouse, as has Islam. The rights of women within Islamic marriage differ considerably from those of men. And both Islamic law and Sephardic and Yemenite Judaism allow for polygamy, with men permitted under these religious laws to take up to four wives. These visions are impossible to square with Catholic orthodoxy on marriage and the family.
When the Scottish Bishops’ claim to be defending “marriage” in their pastoral letter it is not clear what particular tradition or definition of marriage they mean. In our pluralist democracy it is for the State and not for the Church to regulate civil marriage. The State’s extension to same-sex couples of the legal rights, benefits, duties and responsibilities of civil marriage does not impact upon the Church’s rights to define and regulate for its own adherents what constitutes religious marriage.
And when it talks of defending “family life” the Bishops’ pastoral letter relies on a reductionist notion of “family”. When used in the letter “family” appears to be confined to “parents with children”, albeit that it expressly includes “single parents, particularly those who are single not through choice but by circumstance”. But, says the archbishop, same-sex partnerships are not to be considered to constitute “families” worthy of the law’s respect and protection because they are “of their nature incapable of providing tomorrow’s citizens whose values will determine our society”. On this approach childless married couples would also fall outside the definition of “family” and the privileges which the law currently affords them should be removed and transferred, instead, to cohabiting couples bringing up children. This is hardly defensible.
The author of the letter is taking a somewhat ahistorical approach, because family, historically, means the members of a “household” and does not necessarily connote any blood relationship. As Lord Clyde noted in Fitzpatrick v. Sterling Housing Association (2001), a case in which the House of Lords ruled that the concept of “family” is now to be regarded as extending to committed same-sex partnerships marked by mutual fidelity, care and respect: “Some of the most close family relationships may be created by choice … Marriage is the obvious example. Adoption of children is another. The element of a free mutual choice … to spend one’s life with another is one form of a family bond. The kind of [same-sex] relationship with which the present case is concerned is one where the parties of their own choice live together … Beyond that kind of case and the case of a relationship akin to that of parent and child the element of choice does not seem to operate to achieve a family bond. One cannot choose to become a brother or a sister, an aunt or an uncle.” The civil partnership legislation is all about two individuals choosing to become kin. It is about creating family life, not about its destruction or devaluation.
Sexual orientation is not about who you have sex with, but rather about who you fall in love with, body and soul. And civil partnerships seek to affirm and support the love of two individuals for one another. Rather than speculating about sex, would it not be better for our bishops to concentrate on preaching the Christian message that God is love and that “where love and loving kindness dwell there God abides” ?