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.

Defending Cameron? Well, Just on Same-Sex Marriage

Talk about a rock and a hard place. David Cameron's draft legislation on the legalisation of same-sex marriage ceremonies goes to Parliament on Tuesday, but the proposal seems to be attracting criticism from both sides. On the one hand, some religious groups and some on the political right have criticised the plans because the new law will depart from tradition and, in a somewhat contradictory argument, because there are more pressing things to attend to.

On the other hand, there are those on the other side of the argument who criticise the proposals because of the accommodations which are made for religious groups, and indeed some say that this proposal is really just a ruse on the part of the government to distract the population, either from their anti-equality approach to most policy issues or more broadly from their unpopularity with much of the electorate.

I'm not usually one to defend the PM, but I do wonder whether any of these arguments has any real merit. The new law will depart from tradition, that is obviously true. But then, most new laws depart from the status quo - that's what's new about them. The fact that reform will involve change is more or less inherent, and in itself is not an argument against change. Jim Hacker is right, in Yes, Prime Minister, to be incredulous when Sir Humphrey tells him that he cannot have a cook because that's the way it has been for two and a half centuries. Tradition is not in itself an argument.

At the same time, some Conservative party members seem to have missed the point of the reforms, which have drawn a clear distinction between civil and religious marriage. The former will be allowed, the latter will be left to individual religious groups to determine (except for the Church of England and the Church in Wales - more on that in a moment). Given that, the view of Mr Andrew Kolker, chairman of the Congleton Conservative Association, is a little hard to accept. He was quoted in the Guardian yesterday as saying this:

"We have more important things to do and we should be leaving this to the church to sort out."

I'm sorry, what? We should be leaving this - marriage, I suppose he means - to the church? I have no objection to there being religious marriages which the state accepts (though we might ask why some religious marriages count in the state's eyes and some don't) but, in a secular state, marriage is really not a religious institution. Marriage carries enormous social and legal consequences, and those of any religion or none are entitled to those benefits and burdens if they so chose. The Marriage Act of 1836 made valid marriage ceremonies performed in civil ceremonies by state-employed registrars, and it is extraordinary that, 177 years later, anyone should think that 'the church' (meaning, I presume, the Church of England) should 'sort out' this issue. No thanks. The state shall determine who may and may not enter a marriage.

Then there is the point that 'we have more important things to do'. The difficulty with this is threefold. First, it is always true that there are urgent things to attend to; but focusing only on the urgent can mean losing sight of what is important. A good chunk of Parliamentary business could be dispensed with if only the most important thing were ever attended to, and society would be much diminished by that approach. The second difficulty is that this point undermines the main argument against this legislation. By saying "we're too busy", it has to be conceded that, but that there were more time, this would be a good thing to do. If it's a good thing to do, then stop complaining about it. Finally, I take issue with the idea that same-sex marriage is unimportant. Some of its benefit is symbolic, since the legal benefits are available already through civil partnership - but symbols are important. The commitment to equality, both in our hearts and in our actions, calls for changes to the law to remove unjustified inequalities. This inequality has no justification, and it is important that it be removed.

On the other side, the PM faces criticism for giving too much ground to religious groups. This argument seems to me unhelpful. I am saddened that the Church of England has set its face against same sex marriage, and I think many of its members - including some very senior members - are deeply unhappy with the position adopted. I also think that it will be a relatively short time before the Church changes its collective mind, which makes it all the more disappointing that the message sent out has been so firmly against these proposals.

Nonetheless, just as I do not think that the state should be dictated to by any religion's views, I am also cautious about the state imposing its views on religious organisations. This is, perhaps, a less strong point for me, because there are limits to what a religious organisation can claim exemption from. I also think that there is a respectable argument to be made that any religion that wishes the ceremonies that it performs to be recognised by the state should comply with the state's rules. Nonetheless, for pragmatic reasons if nothing else, I would not choose this moment to start that fight. Let's get this legislation passed and deal with perfecting it later.

Then there's the 'ruse' argument. I've heard a number of people make this point, but I just don't see it. If it's true, and Cameron is trying to kid us, or distract us, into thinking he's a nice guy, I don't think anyone's buying it. I'm happy to support this measure, as is most of the Labour Party and many others who disagree with most of this government's agenda - but it doesn't make me any more likely to vote Conservative at the next election. At the same time, swathes of the Tory party's core membership is jumping ship, so it's hard to see this as a nifty political manoeuvre.

Moreover, for those hundreds of thousands of people whose welfare benefits are being cut, or who can no longer access local services or legal advice for their problems, or who are forced to remain on waiting lists longer for medical treatment as waiting times rise again, I hardly think that gay marriage legislation is going to make them forget the overall agenda of this government. There's plenty to hate about Cameron's government, so let's stop attacking him over the one thing he's doing that we agree with.

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.

Playing a Straight Bat? Financial Arrangements When A Civil Partnership Ends

This is a post about the Court of Appeal's decision in Lawrence v Gallagher in March 2012, which was the first appeal about financial arrangements following the dissolution of a civil partnership. I offer strong criticism of the Court of Appeal, but for reasons which apply just as much to many of its decisions in heterosexual divorce cases.


On the 29th of March 2012, the first appeal case was heard in England and Wales regarding the financial arrangements made after the breakdown of a civil partnership. The legal principles applicable to post-civil partnership financial arrangements are identical to those that apply when a heterosexual marriage ends - so the real question was whether the fact that the former relationship was between two people of the same sex, rather than between two people of different sexes, would impact on the way those principles are applied.


The facts of the case:

In Lawrence v Gallagher, the two men had been living together as partners since early 1997, and had entered into a civil partnership in December 2007. The relationship was formally dissolved in 2009. They agreed that the case should be treated as if they had been in a civil partnership for nearly 12 years since the legal option was not open to them during most of this time, and they would have availed themselves of it if it had been.

Before they met, both men had bought properties in London; Lawrence's was significantly more valuable than Gallagher's, since he worked in the City and Gallagher was an actor. They later lived in Lawrence's flat, while Gallagher's flat was sold. With the proceeds and additional money from Lawrence, they then bought a large weekend house in the country.

The financial arrangements that the court was asked to address were not straightforward, but the total assets being considered amounted to about £3.8m. By family law standards, this gets the case into the 'big money' category, especially as there were no children to consider. There were two properties, two pension funds (one very large), some shares (which had not yet been awarded), considerable cash savings and some valuable items. The men were also both working, with Lawrence earning considerably more than Gallagher.


The legal principles which applied:

The relevant legal principles for separating civil partners are set out in Schedule 5 of the Civil Partnership Act 2004. Paragraph 21(2) sets out 8 factors to which the court must give particular regard, and it is well known from the equivalent divorce cases under section 25(2) of the Matrimonial Causes Act 1973 that the overriding objective is to achieve a fair and non-discriminatory outcome, with all contributions to a family's well-being presumptively valued equally (see White v White). This overall objective takes into account three broad principles (see Miller v Miller; McFarlane v McFarlane):

1. meeting the parties' needs (generously interpreted)
2. compensating one party for losses incurred for the benefit of the family overall (such as giving up a career to look after house and home)
3. equal sharing of family assets

The decision in the High Court:

In the High Court, Mrs Justice Parker heard the case and gave a 'reserved' judgment (meaning that she went away to think about the case and write her judgment over a few days, rather than giving judgment immediately the hearing ended). She decided that Gallagher should get about 45% of the assets, totalling £1.6m. This included the country house, part of Lawrence's pension, a lump sum of £577,000, and part of the share value once it was obtained. Lawrence appealed to the Court of Appeal.


The appeal to the Court of Appeal:

The important thing to know about appeals in family law cases is that the Court of Appeal is supposed to have a very limited role. The appeal is not a second bite of the cherry for a litigant unhappy with the decision of the first court. The rule is that the Court of Appeal may interfere only where one of the following things has happened (see, eg, Piglowska v Piglowski):

• the judge failed to apply the correct law;
• the judge made findings of fact which were unsupported by the evidence which make the outcome untenable;
• the judge applied the law to the facts in a way which was "outside the generous ambit within which reasonable disagreement is possible".

Moreover, it is important that the Court of Appeal not assume too readily that the judge made 'sloppy' errors. As Lord Hoffmann explained in the Piglowska case:

"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. ... These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [which are identical to those applicable in the Lawrence case]."

So what did the Court of Appeal have to say about Parker J's decision in Lawrence v Gallagher? At para 19 of the appeal judgment, Lord Justice Thorpe described her judgment as "careful and conscientious", as referring "very fully and conscientiously" to the relevant authorities, and as "conscientiously apply[ing] the s.25 criteria".

This is high praise, though not surprising. High Court judges are the most experienced family court judges, well used to cases that are both factually and legally complicated - that is their job - and Parker J is widely regarded as a no-nonsense judge. Despite all this, the Court of Appeal interfered with her decision. So let's look back at the three reasons why the Court of Appeal is allowed to interfere:

Did Parker J make a mistake about the law? Clearly not.

Did Parker J make mistakes about the facts of the case? Well, yes, apparently she did make a few small errors, but Thorpe LJ was clear that "that neither individually nor accumulatively would they justify success" for Lawrence in his appeal (para 26).

So it must have been that Parker J made a decision which was "outside the generous ambit within which reasonable disagreement is possible"? Well, it's hard to see how. Let's look at the reasoning.

Thorpe LJ agreed with Parker J that Lawrence should get the London flat and Gallagher the country house. He agreed with her that there was then a need to give Gallagher something more to reflect the facts that (a) the flat was worth more than twice as much as the house, and (b) Lawrence had a much higher future income than Gallagher. (So far, so good for Parker J.)

Then we reach the crux of the case. Thorpe LJ criticised Parker J for not explaining more fully where the sum of £577,000 came from, on the basis that "the route that the judge chose to arrive at a fair outcome, followed too theoretical a map" (para 48).

What?! The Court of Appeal interfered with the discretionary judgment of a highly experienced High Court judge on the basis that she thought about the facts too theoretically in order to achieve a fair outcome? This judgment smacks of Court of Appeal judges doing precisely what Lord Hoffmann told them they were not allowed to do in Piglowska, namely "substitut[ing] their own discretion for that of the judge by a narrow textual analysis which enables them to claim that [she] misdirected [her]self". There was simply no basis for this interference by the Court of Appeal.

The end result was that Gallagher's original £577,000 award was reduced to £350,000, and the division of the shares was removed from the equation entirely.


Discussion:

There are two things to might be said about Lawrence v Gallagher. The first is that it is a little disappointing to see the Court of Appeal concluding the first post-civil parntership case by making the outcome less equal and giving more of the assets to the person with the high-paying job. The whole point of the post-marriage cases is that earning wages is not meant to be more valuable than contributing to family life in other ways. Homosexual couples are no different from heterosexual couples in this way - each brings what he or she can to the relationship - and there is a slightly mercantile feel to the Court of Appeal's judgment that leaves an unpleasant taste in the mouth.

However, that feeling is somewhat lessened by the second point worth noting, namely that this case looks like so many post-marriage cases. It is yet another example in a long list of the Court of Appeal interfering with trial judges for no legitimate reason in order to advance the interests of high wage-earners against their less well-paid former partners. Usually this works to the advantage of working men against their child-raising former wives, but Lawrence shows those principles to be annoyingly universal. 

It looks as if the Court of Appeal judges just can't help themselves. They see a decision that is not what they would have done, and they have to interfere - even though the law is, precisely, that they are not allowed to interfere on that basis. In the Lawrence case, the Court of Appeal changed Parker J's original division of 45/55 to a final division of 40/60. Parker J got the law right, and she made no material errors about the facts - so the Court of Appeal must be trying to tell us that, when the 'right' outcome was 40/60, it was not reasonable for Parker J to think that 45/55 was right?

Come off it. This was an experienced judge who thought about the case carefully and got the law right, and there was no legitimate justification for this appeal to be allowed.

Despite all that, there is no reason to think that Lawrence v Gallagher implies some different approach to civil partnership cases from marriage cases. In fact, it's business as usual - appeal judges sticking their oars in without justification. As Supreme Court Justice Lady Hale said in 2006, and as Lord Wilson repeated just 2 weeks before the Lawrence decision, the Court of Appeal's approach has the effect of "robbing the trial judge of the discretion entrusted to [her] by the law". It's certainly hard not to think that Parker J was robbed of her discretion in this case.

The title of this post was inspired by Jo Miles, Fellow of Trinity College Cambridge, but
she bears no responsibility for the views expressed here, which are mine alone. A fuller
version of the post has since been published in the Journal of Social Welfare and Family
Law, available here: http://www.tandfonline.com/eprint/H7aIPuZs27N2ePVrc7eW/full

Gay Marriage? Nah, Just Regular Marriage for Everyone Please

Eddie Izzard once said that there are basically three categories of people when it comes to attitudes to sexual orientation or sexual identity. At one of the spectrum, about 10% of people are really enthusiastic, very pro-gay, pro-transvestite and so on. At the other end, about 10% of people are thoroughly against homosexuality, transvestitism, etc. And then in the middle, about 80% of people really just don’t have any opinion. They are busy getting on with their own lives and whether another person is straight or gay or transsexual or intersexual or asexual doesn’t matter to them.

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.