Monday, 20 May 2013

More on the Marriage (Same Sex Couples) Bill

The issue of allowing same sex couples the right to marry has featured on this blog a number of times - first in March 2012 when I first argued in favour of this change; then in June 2012 when I took issue with three of the main arguments used against the change; and most recently in February 2013 when I sympathised with the difficult position that the Prime Minister had found himself in, attacked over this proposal from left and right alike. But here we are again.

Last Friday, after a fairly short but rocky road, the French equivalent law allowing same sex couples to marry was signed by President Hollande. Here on this side of the Channel, things are less straightforward. Apparently Tim Loughton MP (Con, East Worthing and Shoreham; formerly Children's Minister before he was sacked last autumn) is introducing an amendment to the Marriage (Same Sex Couples) Bill today. The amendment will say that, at the same time that marriage is opened up to same sex couples, civil partnership will be opened to heterosexual couples.

Now obviously proposed amendments to Bills do not necessarily end up being adopted, but this one is said to have the backing of 150 Conservative MPs (the Tory Party has a free vote on this Bill) and, at least possibly, the support of the Labour front bench. Superficially, it might sound like a good idea, but I can't begin to explain the many ways in which this makes me despair. Here's two for starters.

First, and most importantly, this is a wrecking amendment. Loughton is on record as being opposed to equal marriage rights for same sex couples, and this wrecking motion works in two different ways. One is that it makes it less likely that the Bill will be passed into law at all. In this instance, the way in which that is calculated to happen is that those favouring the amendment hope that, with it there, the government will pull the plug on the entire Bill. I'm not sure how likely that is on this occasion, given how committed David Cameron seems to be to the body of the Bill itself, but it's possible.

The other way that the wrecking motion works is that it delays the implementation of the Bill by making it more complicated. I'm not sure how effective this approach is on this occasion either, but it seems to have the government running scared, which says something about its potential. The alleged cost of the amendment is hard to assess objectively, because allowing straight couples to enter civil partnerships doesn't actually add any significant 'cost' unless these are straight couples who wouldn't have married.

There are some such people, of course, because they object to marriage for personal reasons (usually related to either its perceived religious status - which civil marriage doesn't have - or its patriarchal history which the law has long since resolved). But those people are making a personal choice, not having one imposed on them by law. The eligibility criteria for civil partnership are identical to those for marriage. (At the moment they aren't of course - the requirements as to the sex of the people involved are different - but those differences will be removed by this Bill.) So while some people who can marry but choose not to do so may later choose to enter civil partnership, they haven't really gained anything that they didn't have before. The legal consequences of marriage and of civil partnership are identical in all material ways.

That brings me to my second reason for sighing at Loughton's amendment. Civil Partnership was introduced in 2003-04 because the government of the day was led to think that it would be unable to get a same-sex marriage Bill through the House of Lords. Now, whether they were right about that or not, the compromise that they found was to enshrine all the same rights and duties in a status which had a different label. In legal terms, civil partnership is marriage - only the name is different (other than one or two inconsequential details).

It has always baffled me why a heterosexual couple would want a civil partnership, since to me is represents a blatantly discriminatory, lesser status while carrying all the same rights and duties. That lesser status is apparent in international law, for example. Any marriage performed in this country will be recognised as such around the world. A civil partnership, on the other hand, will only be recognised as carrying legal rights in a few places.

The proposal to allow straight couples to enter civil partnerships is absolutely not comparable with the French position of having marriage on the one hand and the PACS on the other - PACS comes with very significantly lesser rights and duties than marriage, and is consequently open to many more people than marriage. (Siblings, for example, can enter a PACS, but would not be able to marry.)

So if this amendment is passed, and if we end up with a situation where any couple, whether straight or gay, can enter either a marriage or a civil partnership, the law will have reached the farcical position whereby a stop-gap measure introduced to grant legal rights to same-sex couples in the face of social opposition will have been extended to create two virtually identical statuses which all couples can pick between.

Ironically, this amendment is being pursued not only by those who are opposed to equal rights for same-sex couples, but by those who are most enamoured with the arguments about protecting 'traditional marriage'. I think it is quite reasonable for Cameron to position his approach as supporting marriage - by extending marriage to same-sex couples, more people can marry and enter this special union. Those who support the amendment, on the other hand, are favouring extending to opposite-sex couples all the legal rights and duties of marriage, but outside marriage. How this fits with their pro-marriage agenda is beyond me.

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