Monday, 12 August 2013

Defending the Institution of Marriage (Originally published on Respublica's Disraeli Room on 18th December 2012)

To the political class redefining marriage to include same-sex unions is a straightforward matter of furthering the progressive-equality agenda - they are deaf to any contrary arguments. The issue is however worthy of debate, even if debate slows down the politicians’ goal of changing marriage. Indeed, many politicians (though not all) acknowledge the importance of marriage as a cornerstone of society. 
The Government consultation presumed that same-sex marriage should be implemented and that the only acceptable discussion was how to go about delivering this, rather than whether this change should take place. Nonetheless, despite the Government’s attempt to restrict debate (leading to some Conservative backbenchers calling the consultation a ‘sham’), the Church of England’s response to the consultation helpfully sets out the case against redefining marriage.
Marriage is the institution through which society addresses the difference between the sexes and brings about the benefit of that complementarity. Referring to the Book of Common Prayer, which follows Scripture, three virtues can be identified that are promoted by marriage: mutuality, fidelity and complementarity. The third of these virtues holds the potential to lead to fruitfulness. The purpose of marriage is then to bring the two sexes into complementarity, with the high possibility of children being conceived and brought up in that stable framework. 
Civil partnerships, recently introduced (and supported by the majority of Lords Spiritual), establish in other relationships mutuality and fidelity, but the key distinguishing feature is that civil partnerships are not there to address sexual difference.  Only marriage does this and it is therefore a uniquely heterosexual institution.  To change this defining aspect of marriage would undermine society’s way of singling out heterosexual commitment in a way that sustains a fundamental benefit to society – the biological family.
The Omni-shambles
The first sign of confusion came with the Prime Minister’s announcement that there would be an ‘opt-in’ for those faiths wishing to perform same sex marriages; contrary to the original commitment this would only apply to civil marriage.
In an attempt to push its agenda through and address the concerns of the established church, the Government’s official statement to Parliament has only muddied the waters further. The Minister announced that a ‘quadruple lock’ would protect the established church and others that wish to carry on solemnising marriages according to their own tradition and doctrine, free from threat of legal action.
The quadruple lock:
  • Ensures that no religious organisations or ministers can be compelled to marry same-sex couples or to permit this to happen on their premises.
  • Provides an opt-in system.
  • Amends the Equality Act 2010 so that discrimination claims cannot be brought.
  • Ensures that legislation will not affect the canon law of the Church of England or the Church in Wales
The purpose of the fourth lock is not actually to “ban” the established church from opting in, but to ensure that there is no conflict between canon law and statute, which would bring about a constitutional contradiction.  So by stating that the Government would make same-sex marriage “illegal” for the Church of England to opt in the Minister was simply wrong, which led to mistaken media-commentary about the Church of England being banned from opting in to same-sex marriage. 
To “opt in” the Church of England would legislate in Synod, producing a Measure (the equivalent of an Act of Parliament). Synod Measures require parliamentary consent and the Synod's powers include the ability to amend Westminster legislation, as the Church pointed out in a briefing note to MPs “it would not require separate, additional legislation on the part of Parliament to enact any change to the Church's practice on marriage… For Parliament to give the Church of England an opt-in to conduct same sex marriages that it hasn't sought would be unnecessary, of doubtful constitutional propriety and introduce wholly avoidable confusion.” 
At the same time the Government did not appear to understand the unique position of the Church of Wales, which it wrongly described as ‘established’. It is proposed to make it subject to the lock; but, while it retains the power to license marriages, being disestablished it cannot initiate legislation if it wishes ever to opt in. Therefore, while religious freedom is protected for the established church in England, the religious freedom of the non-established Anglican Church in Wales risks being curtailed.
In any event, the consequence of these proposals would be for the state, for the first time ever, to redefine the nature of marriage and thereby create two types of marriage. Marriage as we know it to be for millennia, protected by the churches, and a new sort of marriage, administered by the State, the Quakers, Unitarians and Liberal Judaism. The majority of faiths would thereby continue with marriage between man and woman, while the rest of the country would go down its own route, breaking the single institution of marriage into the status quo (maintained by churches) and a new form of marriage for those married outside most churches.
Let the Country Decide
Worse, as many signatories across all parties have put in an open letter to the Telegraph, this attack on an ancient institution has no democratic mandate.  There was no clear commitment in the governing parties’ manifestos. The petition of some 600 thousand plus to retain the current definition of marriage appears to have been ignored as part of the consultation.  The polls are ambiguous as to whether a majority favour this proposal.  Surely, without a mandate and for such a controversial change the public should decide.  Otherwise many will feel the new marriage has been imposed upon them.
While the political and media class may see this as a mere tidying up exercise to complete the equalities agenda, this is exceptionally controversial for many voters. If David Cameron wants to prove politicians aren't out of touch on this issue, and if he wants the policy to have full public backing, he should put his idea to the country in a referendum.
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