Friday, 1 June 2012

Deconstructing the Marriage Debate

Some people claim that gay couples should not be allowed to marry because it will be bad for children, have adverse consequences for other people, and because it is in any case unnecessary since civil partnership gives the same legal rights as marriage. This post explains why those arguments do not stand up to scrutiny. Marriage is a good thing, and it is sad that those who claim to be 'for marriage' are trying to argue against letting all committed couples marry if they wish to do so.

I attended a panel discussion on allowing same-sex couples to marry, hosted by the British Academy in London, earlier this week. On the panel were

 - the Rev Dr Giles Fraser, formerly Canon Chancellor of St Paul's and now a parish priest in London
- Professor Leslie Green, Professor of the Philosophy of Law at the University of Oxford
 - journalist Melanie McDonagh, currently a Leader Writer for the London Evening Standard; I cannot find a useful summary page, but a google search gets you lots of her published articles.

The panelists were, of course, aiming to give a different perspective on the issues raised, and a vigorous debate followed their talks. I'm not going to engage with all the points discussed there, but some of the claims made by Ms McDonagh reminded me of things said by the Coalition for Marriage (C4M), and I find these claims impossible to let pass.

The claim that marriage is good for children:

One of Ms McDonagh's points, and which one also finds under the heading 'Marriage is Unique' on the C4M homepage, is that children do best when they are raised by a mother and a father who are married to one another. As C4M puts it, 'the evidence shows that children do best with a married mother and a father'. Well, there is indeed a good deal of evidence that this claim, in itself, is true.

The problem is that those who are trying to make any further claims about what this evidence means are confusing correlation with causation. Children's well-being and marriage are positively correlated - in general, children of married parents do better on most standard measures than children whose parents are separated, children with only one parent for whatever reason (death of a parent or an absent parent), and children whose parents live together but are not married. However, that correlation says nothing about causation - the question of whether marriage causes this greater well-being is not answered by observing the correlation.

So what do we know about the causation? In 2010-11, the Institute for Fiscal Studies (hardly a radical organisation) published a number of papers based on their study of marriage and unmarried cohabitation. What their research found was that people who marry tend to have more of the characteristics that contribute to greater child well-being and relationship stability than those who have children outside of marriage. Research economist Dr Ellen Greaves is quoted on the IFS press release as saying this:

"It is true that children born to married couples are on average more cognitively and emotionally successful than children born to [unmarried] cohabiting couples. But careful analysis shows that this largely reflects the differences between the types of people who decide to get married and those who don’t. On average those who marry tend to come from more advantaged families, and are more cognitively and emotionally successful themselves, than those who cohabit. This explains the differences in outcomes for children. Marriage itself appears to confer little, if any, benefit in terms of child development."

So yes, it's true that children whose parents are married tend, on average, to do better than those whose parents are not married. But the children who do less well would not be helped by the mere fact of their parents marrying. (The main effect of such a shift would be on the statistics: the average well-being for children of married parents would come down, as less well-resourced (in a broad sense) parents entered the 'married' category.) The best thing that we could do to promote children's well-being is to help the unmarried parents to acquire more of the things that married parents already have - education, material resources, and other things to help with emotional and cognitive success in the adults.

I cited the IFS findings in a question to Ms McDonagh, and she responded by saying that "those findings have been disputed". The work that Ms McDonagh referred to, responding to the IFS study, comes from the Centre for Social Justice, but it makes for less than compelling reading. It combines bald assertions ("There is good evidence that the effects of marriage are really the effects of prior commitment which leads to marriage") with a flawed attempt to challenge the methodology of the IFS study.

For example, in assessing marriage versus unmarried cohabitation, the IFS study has 'controlled for' the likelihood of pregnancy being unplanned and for the quality of the parents' relationship when the child is 9 months old. The CSJ characterises this as the IFS "stripping out very important things". The CSJ's point seems to be that unplanned pregnancies are bad for relationships (which may be true; I don't know, and the CSJ gives no evidence in support of the claim) - they say this:

"unplanned pregnancies tend to make people feel trapped and result in more fragile partnerships in the longer term. If people have not made a conscious, deliberate decision to commit, they are more prone to split up when things get difficult."

But this point, true or not, is a distraction and is no answer to the IFS study. When a factor is 'controlled for' by researchers, that means that you take into account its effects - in other words, you are asking: what is the effect of relationship type, once you take into account whether the pregnancy was planned or not? Both married and unmarried couples have both planned and unplanned pregnancies; the IFS study is asking whether the parents' relationship type affects relationship stability and child well-being regardless of whether the pregnancy was planned or unplanned.

Leaving all this aside, though, I still struggle to understand how the 'marriage is good for children' argument can be deployed as a reason to prevent same-sex couples from marrying. For those who think that marriage in itself brings benefits, would it not be sensible to encourage as many couples as possible to enter into marriage? While this may come as a shock, same-sex couples often have children (especially lesbian couples). And, what's more, they do not require medical assistance to achieve that, as Ms McDonagh implied at the talk. Lesbians are perfectly capable of having children with the help of a willing male friend; and, indeed, gay men are perfectly capable of having children with the help of a willing female friend (though I grant you that the input of that female friend is rather more onerous than the input of the male friend of a lesbian parent).

So same-sex couples are parents, and have been being parents for a long time. (Single homosexual people have been doing this too.) The law provides various mechanisms to help same-sex couples to be recognised as parents, whether through adoption, assisted reproduction, surrogacy arrangements or obtaining parental responsibility for a child once the child is born. Same-sex parenting is both allowed and actively facilitated by our law, and so it seems strange for those who think that marriage is important for children to say that the institution should be specifically closed off to same-sex parents. After all, the children involved bear no responsibility for who their parents are, and if marriage is about promoting children then surely all parents should be encouraged to marry, regardless of their sex.

The claim that same-sex marriage will have 'profound consequences':

The next claim that I want to consider is the supposed broader consequences of allowing same-sex couples to marry. On this point, I find the sheer scale of the scaremongering on the C4M website rather astonishing. Under the heading 'Profound consequences', it says this:

"If marriage is redefined, those who believe in traditional marriage will be sidelined. People's careers could be harmed, couples seeking to adopt or foster could be excluded, and schools would inevitably have to teach the new definition to children. If marriage is redefined once, what is to stop it being redefined to allow polygamy?"

It is hard to know where to start with this passage. Perhaps I lack imagination, but I am simply unable to see how anyone will be 'sidelined' by the fact that same-sex couples are allowed to marry. My first question is: from what will they be sidelined? And what will it mean to be sidelined? I may be wrong, but I would have thought that most people's interest in marriage starts and stops with their own marriage (if they are married or plan to marry) and with those of people close to them. What possible difference does it make to me whether two strangers are or are not married?

And then, 'people's careers could be harmed'. I suppose this is a reference to possible further cases like Ladele v Islington LBC. Ms Ladele was a marriage registrar who opposed civil partnerships on religious grounds (though perhaps ironically, given the current debate, her real objection was to gay marriage, which she equated with civil partnership). Put simply, Ms Ladele eventually resigned from her job because she felt unable to perform civil partnership ceremonies as her employer was demanding, and then sued for constructive dismissal. The Court of Appeal dismissed her claim, essentially on the basis that "the legislature has decided that the requirements of a modern liberal democracy, such as the United Kingdom, include outlawing discrimination in the provision of goods, facilities and services on grounds of sexual orientation" (para 73).

While some may have sympathy with Ms Ladele, I simply cannot see that a person's views, religious or otherwise, should enable them to pick and choose which parts of their job they will do, particularly when that job is to perform a function of the state (being a marriage registrar). Suppose that a person were against inter-racial marriage - we would surely not countenance permitting them to refuse to perform such ceremonies and still keep their job. (Inter-racial marriage was illegal in many US States until Loving v Virginia in 1967. No doubt many people in those States objected to the change in the law which the US Supreme Court forced upon them, but the decision was still plainly right.)

Then there is the question of (presumably heterosexual) couples be excluded from adoption or fostering. Again, I struggle to understand this point. The rules on adoption and fostering are already de-coupled from heterosexuality and from marriage - a person or a couple can apply to foster or adopt regardless of these factors - so how will permitting same-sex couples the status of marriage affect that? I am told that there are examples of people being stopped from fostering or adopting because they oppose homosexuality; but whatever one thinks of those cases (if they exist), it is difficult to see that the marriage question actually makes much difference.

Next, schools will have to teach children that both heterosexual and homosexual people can marry. Well yes, okay, I'll semi-concede this one. It is true, I suppose, that if schools 'teach' about marriage they will need to point out that marriage is not sex-specific. (I may be deficient for not having gone to a religious school, but I cannot recall being taught about marriage in any significant detail when I was at school. I understand that the importance of relationships, including marriage and other stable relationships, is now included in the Personal, Social and Health Education syllabus, but I am not clear that this involves much detailed discussion about marriage per se.)

And then the polygamy argument. Without getting into the point that some cultures happily allow polygamous marriage (and indeed the law in this country will give legal recognition to a polygamous marriage performed in another country if the spouses move to the UK), this claim is a real red herring. It is really no different from the claim that allowing same-sex couples to marry would then, of necessity, require the state to recognise my marriage to a tree. Personally, I'm not sure that I see quite why we should not allow polygamous marriage, but that is beside the point. The 'thin end of the wedge' argument only works if the further examples are materially identical to the original claim, and multi-party relationships are, in some significant ways, different from two-person partnerships. Committed heterosexual couples and committed homosexual couples, on the other hand, have no material differences; that is one reason why discrimination on the ground of sexual orientation is prohibited by the Equality Act 2010, and the law has recognised that for a good many years now.

The claim that gay couples don't 'need' marriage because of civil partnership:

I'm going to deal with this one fairly quickly, because I discussed it on my blog a couple of months ago. The C4M website points out (correctly) that civil partnership offers the same legal rights as marriage, and then says (incorrectly) that this means that there is no need to 'redefine marriage' (as it describes the proposals). And then:

"It's not discriminatory to support traditional marriage. Same-sex couples may choose to have a civil partnership but no one has the right to redefine marriage for the rest of us."

Well, it is discriminatory to support traditional marriage if that means restricting it to heterosexual couples, just as it was discriminatory for some US States to bar inter-racial couples from marrying before 1967. Discrimination itself means only observing (and acting upon) a difference between two cases, but discrimination is prima facie wrongful when it is illegitimate to use that difference as a basis for the distinction. Our law identifies certain differences which are thought illegitimate (described in s 4 of the Equality Act 2010 as the 'protected characteristics'), including sex, race and sexual orientation. So the position that C4M advocates is undeniably discriminatory. In principle, that discrimination could be justified (and therefore be legitimate), but, for reasons discussed here and on my previous post, it is not, in fact, justified. (Put shortly, the discrimination is not a legitimate way of pursuing a legitimate aim - see, by analogy, the reasoning in Ghaidan v Godin-Mendoza.)

As for the second sentence, I'm back to this point: what difference does it make to one couple's marriage that another couple is also married? The effect of opening up marriage to same-sex couples is liberal and facilitative: it enables two people to choose to marry one another, but it does not compel anyone to do anything; and, at the same time, there are no consequences of this decision for anyone else's relationships (or, at least, no consequences not already arising from civil partnerships). Heterosexual couples are totally unaffected by whether homosexual couples marry or not. The claim that marriage should be restricted to heterosexual couples, on the other hand, is an attempt to impose one group's view on the way that other people can live their lives. I find more than a little irony in the fact that C4M is trying to lay claim to the "other people shouldn't impose their views on us" argument.

Debating the issues:

Finally, I want to say a brief word about a slightly odd remark on the 'about us' page of the C4M website. The authors call for a civilised debate (which I certainly agree with), and then say that they "will highlight any intimidation or intolerance shown to supporters of traditional marriage". I'm not sure what this means. I hope that the authors are simply trying to avoid unpleasantness, but the comment might be taken to imply that those of us who disagree with their views might find ourselves accused of intimidation or intolerance (again, some irony there perhaps). There was a little hint of this in some heckling from the audience at the British Academy talk, implying that disagreeing with the views of, in that instance, Ms McDonagh was, in itself, a form of intimidation. I would certainly be pleased to know that those who oppose opening marriage to same-sex couples consider this post to fall well outside intimidation or intolerance, even though I take issue with more or less everything that they say.