Tuesday’s Government response to its marital redefinition consultation, conducted earlier this year, has conclusively demonstrated that the entire consultation process had no purpose other than to shroud a shamelessly undemocratic exercise in a cloak of false legitimacy. The Government has made clear that it intends to redefine marriage despite opposition from the overwhelming majority of respondents to its proposals.
Of 228,000 individual responses to the consultation, 53pc – fewer than 121,000 – said same-sex couples ought to be able to marry, according to the Government. However, with every single petition the Government received on the issue opposing marital redefinition, it’s clear that more than four times as many people contacted the Government to support the traditional understanding of marriage rather than to overturn it: the Coalition for Marriage’s petition alone bore 509,800 signatures when it was submitted. It now bears more than 620,000.
The Government, therefore, can claim no mandate for its plans, and Archbishops Vincent Nichols and Peter Smith hardly exaggerate when they say “the process by which this has happened can only be described as shambolic”.
Marital redefinition went unmentioned in both the Conservative and Liberal Democrat election manifestos, and was absent from their 2010 programme for government. Parliamentary process has been scorned in the rush to redefine marriage: the Government has produced neither a green paper nor a white paper on this issue, which wasn’t so much as alluded to in the Queen’s speech at the State Opening of Parliament this May.
Despite lacking democratic legitimacy, Mr Cameron admitted last week that he intends to go even further than previously planned by facilitating the solemnizing of same-sex marriages by religious bodies. This U-turn makes a mockery of the already questionable consultation process, and is a profound betrayal of those who responded in good faith to the consultation – which a dozen times ruled out changes to what it called ‘religious marriage’.
Responding to Mr Cameron’s admission, the Anglican bishops drily observed that at least this suggested that the Government was starting to realise that, contrary to the chaotic language of the consultation document, the law recognises only one institution of marriage: “We welcome the fact that in his statement the Prime Minister has signalled he is abandoning the Government’s earlier intention to distinguish between civil and religious marriage.”
The Anglican bishops said that they looked forward to studying the Government’s response to the consultation, but will have found little comfort there. Despite boasting that it intends to introduce a ‘quadruple lock’ to protect religious institutions from being compelled to act against their principles in connection with the proposed legislation, the Government admits that churches and other religious bodies could still face legal challenges if they refuse to solemnize same-sex marriages.
The Government’s decision is probably motivated by a desire to evade challenges under the European Convention on Human Rights , but it is difficult to have confidence in any planned safeguards; the Human Rights Act embeds the ECHR in UK law, and the European Court of Human Rights has ruled that if a state allows for marriage between persons of the same sex, it must do so on exactly the same basis that it allows for other marriages.
Leaving aside how later parliaments might rescind any safeguards established by this one, it seems clear that any religious body which declined to solemnize same-sex marriages would almost certainly be acting against the Human Rights Act and the ECHR, and would, at the very least, be seriously vulnerable to legal challenges.
The Church of England, uniquely to be banned from solemnizing same-sex marriages, will probably be proof against such challenges, but in this case it would be the state itself that would be compelled to stand in Strasbourg and justify why same-sex Anglican couples should be the only people in England and Wales barred by law from marrying in their own churches.
The proposals raise important questions about the status of the Church of England as an established church; the Government recognises Parliament’s right to overrule Anglican canon law, but ignores how the basic definition of marriage in English law has for centuries been that embedded in the Church of England’s official prayerbook, licensed by Parliament and recognising marriage as a voluntary union of a man and a woman with the principle aim of bearing and rearing children.
The Government’s proposition would require the state to speak differently from both sides of its mouth, Parliament saying one thing, and the Church of England saying another. This raises a profound constitutional problem, as George Pitcher recognised on BBC this week:
“If we’ve got the state having a completely different definition of what marriage is from what the Church calls ‘holy matrimony’ then it’s a bit difficult to see that the Church can continue with such a central area of our theology at variance with the state. We’ve got the Queen, who is not only the head of state but also the Supreme Governor of the Church of England, presiding over our established church and – as a figurehead – over the state, and it’s very difficult to see how that can cohere once we’re departing on such important institutions in our heritage and history.”
Not merely is Mr Cameron out of his depth on how redefining marriage could have serious repercussions for the British constitution, but the entire Government seems to have a grievously flawed understanding of religious liberty and freedom of conscience.
The Government insists “no one should face successful legal action for hate speech because they preach the belief that marriage can only be between a man and a woman,” but in using the word ‘preach’, it seems, as with cases currently being considered by the European Court of Human Rights, to reduce ‘freedom of religion’ to mere ‘freedom of worship’. The ECHR, however, guarantees freedom to manifest religious belief in “worship, teaching, practice and observance”.
Catholic priests may be able to preach that marriage can only be between a man and a woman, but will ordinary Catholics be permitted to practice what the Church preaches? Will those who believe ‘same-sex marriage’ to be a contradiction in terms be obliged to recognise it as a reality, rather than a legal fiction? The Government’s response is far from clear on such issues, and Bishop Philip Egan of Portsmouth seems to have been fully justified in asking, “Will Catholic schools, societies and institutions be free (and legally safeguarded) to teach the full truth of Christ and the real meaning of life and love?”
Interviewed on Radio 4 this Tuesday, Culture Secretary Maria Miller displayed her fundamental incomprehension of such issues when she dismissed concerns about consummation and adultery as irrelevant to same-sex marriages. Responding to the fact that some see these issues as central to what the word ‘marriage’ means, she said, “this may well be why the Catholic Church does not want to opt into the system of being able to offer same sex marriage”. However, as Timothy Radcliffe says, it is less that the Catholic Church opposes same-sex marriage than that “it considers it to be impossible.”
If the Government’s response to its consultation tells us anything, it tells us that it wasn’t listening.
Religious freedom, however, is not the immediate issue here; more urgent, as our briefing paper In Defence of Conjugality: The Common-Good Case Against Same-Sex Marriage points out, are the questions of what marriage is, why the state has an interest in it, and whether the state has the power to redefine it.
The Government’s response states that “At its heart, marriage is about two people who love each other making a formal commitment to each other,” but it is difficult to see why such a private commitment should be a public concern: the state is not in the business of legitimating private relationships, and cares about marriage purely as a matter of public good.
British law has long recognised that marriage provides a uniquely stable and balanced environment in which children can be born and raised, protecting it as the one public institution that exists to uphold the principle that every child should – ideally – be raised with the love of a mother and a father.
It is telling, therefore, that the Government’s 47-page response devotes just three paragraphs to children, relegating them to the peripheral ‘wider issues’, and rejecting outright the view of 84pc of British people, as found by a ComRes poll for Catholic Voices this March, that children do best in life when raised by a mother and a father in a stable and loving relationship.
Regardless of governmental cynicism, it is indisputable that many support this project for the best of motives. Unfortunately, such support is misconceived: the introduction of same-sex marriage would not correct any injustices, couples in civil partnerships already having the same rights as married couples, and can only be brought about if British law decrees children to be at best peripheral to marriage and the state to have an interest in regulating people’s private lives.
Few people in modern Britain, it is safe to say, want either of these things.