My guess is that Hugo Rifkind is in the 80%, so it’s great
that he’s written a long comment article in The Times today supporting gay
marriage and dismissing the so-called arguments against it. His
explanation that the view of some that “marriage is a thing between a man and a
woman” is not an argument but a description of the status quo is disarmingly
straightforward. And he’s right – it is exactly akin to the view before
suffrage that “voting is a thing done by men”. It is a description of a
prejudiced status quo, and in fact identifies the very problem under
discussion. Voting was a thing done
by men, but there was no objective justification for that fact. Marriage is a thing between a man and a woman,
but there is no objective justification for that fact either.
It is sometimes said that marriage is a religious ceremony and that legalising same-sex marriages would ‘overrule the bible and tradition’. Well, it will overturn tradition, but that is the whole point. As for overruling the bible, it is important to remember that the UK has had non-religious marriage ceremonies for almost 200 years – the law was changed to allow civil marriage ceremonies in 1836. It is simply not realistic to say that religion and marriage are inextricably linked. Those of religious faith are free to think that having a religious ceremony as part of their marriage ‘raises [marriage] to a new level’ – but they are not free to say that anyone else’s marriage is inferior, nor to dictate who is allowed to marry. That is for society as a whole to decide together, not for one group to dictate to the others.
Now, it might be said in response that allowing gay marriage
does allow one group (those in favour of gay marriage) to dictate to others (those
against gay marriage). However, this argument just won’t do. If you are against
something, don’t do it. Don't like gay marriage? Then don’t marry someone of the same sex! But don’t impose
your personal views about it on the way that other people can live their lives.
The only justification for doing so is clear and objective harm being caused to
people other than those engaged in the action in question, and there is simply
no evidence that gay marriage harms anyone. Not the couples themselves, and not the children
of those couples.
In fact, since marriage is aimed at promoting stable
relationships, it could even be said that preventing
gay couples from marrying is harmful to society. Baroness Hale of Richmond, a
Justice of the Supreme Court of the United Kingdom, put the point beautifully
in her judgment in a 2004 case called Ghaidan v Godin-Mendoza, paragraph 143:
“But what could be the
legitimate aim of singling out heterosexual couples for more favourable
treatment than homosexual couples? It cannot be the protection of the
traditional family. The traditional family is not protected by granting it a
benefit which is denied to people who cannot or will not become a traditional
family. What is really meant by the ‘protection’ of the traditional family is
the encouragement of people to form traditional families and the discouragement
of people from forming others. There are many reasons why it might be
legitimate to encourage people to marry and to discourage them from living
together without marrying. ... But ...
it is difficult to see how heterosexuals will be encouraged to form and
maintain such marriage-like relationships by the knowledge that the equivalent
benefit is being denied to homosexuals. The distinction between heterosexual
and homosexual couples might be aimed at discouraging homosexual relationships
generally. But that cannot now be regarded as a legitimate aim. It is
inconsistent with the right to respect for private life accorded to ‘everyone’,
including homosexuals, by Art 8 [of the European Convention on Human Rights] since Dudgeon v
United Kingdom (1981) 3 EHRR 40. If it is not legitimate
to discourage homosexual relationships, it cannot be legitimate to discourage
stable, committed, marriage-like homosexual relationships of the sort which
qualify the survivor to succeed to the home. Society wants its intimate
relationships, particularly but not only if there are children involved, to be
stable, responsible and secure. It is the transient, irresponsible and insecure
relationships which cause us so much concern.”
So, if the aim is to promote stable relationships rather
than transient ones, is it enough of an answer to this argument to
say that same-sex couples in the UK can enter into the legally-recognised
status of being civil partners with one another, which grants them legal rights
almost identical to those of marriage? Well, no. Civil partnership was a
wonderful idea of the Blair government, allowing important legal rights to be
granted to gay couples without the inevitable problems that gay marriage
legislation would have faced from some members of the House of Lords, and Blair deserves much
gratitude for taking that step. But it is just a step, because civil partnership
is discriminatory.
There are only two possibilities. One is that marriage and civil partnership are legally different from one another, in which case the discrimination is obvious. More likely, the Civil Partnership Act succeeded in creating an institution which has all the same rights as marriage, but is not marriage. But that too is discriminatory, because the argument that two parallel institutions can be both separate and equal was exploded by the United States Supreme Court in Brown v Board of Education of Topeka nearly 60 years ago. “Separate but equal” is a contradiction in terms – if it is separate, it is inherently not equal.
When it comes down to it, though, this isn’t really about gay marriage. Gay people don’t want "gay marriage", just regular marriage that happens to involve two people of the same sex. It’s the same with everything. Gay people don’t “gay kiss”, they just kiss. Gay people don’t have “gay sex”, they just have sex. Life isn’t about gay or straight, and marriage isn’t about gay or straight. It's about love, and it's time.
