This Bill, for the first time in British history, fundamentally seeks to break the existing legal link between the institution of marriage and sexual exclusivity, loyalty, and responsibility for the children of the marriage.
These are the opening words of a briefing sent today to MPs by the Catholic bishops of England and Wales in advance of the parliamentary debate next Tuesday on same-sex marriage. (Download the CBCEW Briefing on Marriage (Same Sex Couples) Bill).
The document sets out in detail the effects, both foreseen and unintended, of changing the law’s understanding of marriage to accommodate same-sex partnerships. The fundamental problem with the Bill, say the bishops, is that this new legal understanding “threatens subtly, but radically, to alter the meaning of marriage over time for everyone”. If it becomes law, the bishops warn, “the true meaning of marriage will gradually, over time, be lost, to the detriment of future generations.”
Changing that meaning, they say, requires eliminating a number of elements upheld in the existing approach to marriage, such as the presumption that a child born to a mother during her marriage is also the child of her partner; sexual infidelity as grounds for divorce; and the need for consummation to validate a marriage.
Marriage thus becomes an institution in which openness to children, and with it the responsibility on fathers and mothers to remain together to care for children born into their family unit, is no longer central to society’s understanding of that institution (as reflected in law).
The bishops go on to point out that the existing approach to marriage is designed to encourage a particular understanding of it — that marriage is between two people, not several; that the commitment is lifelong; that the relationship is a sexual one; that it is exclusive etc. — in order to show that marriage has an important and unique function: one that is “intimately related to the conception and rearing of children”.
The bishops recognise that there is an alternative view of marriage which centres on the relationship between the parties. But
… marriage is not only the institutional recognition of love and commitment. Marriage, as legally recognised in this country, is also the institutional recognition of a unique kind of a relationship in which children are raised by their birth-parents. Even if this is not always possible in practice, the law, by recognising this core understanding of marriage, sends a vital signal to society of an ideal.
The bishops go on to show how retaining marriage for opposite-sex couples is neither discriminatory nor in any way disparaging of same-sex relationships. They say the equality / fairness argument in favour of the Bill is “fundamentally flawed” for “it is not unequal or unfair to treat those in different circumstances differently. Indeed, to treat them the same would itself be unjust.”
The document shows how the Bill in any case does not seek equivalence between same-sex couples and heterosexual couples, but treats them differently even within the same piece of legislation (non-consummation, for example, will be grounds for nullifying a civil marriage between a man and a woman, but not between a same-sex couple). The Government itself recognises, therefore, “that it is not necessarily unfair discrimination or a breach of the principle of equality to treat different people differently, if they are different in a relevant way.”
Our opposition to same-sex marriage is not based in discrimination or prejudice; it is based in a positive effort to ensure that the unique social values currently served by marriage carry on being served by that institution in the future.
The bishops go on to protest at the way the Bill has been foisted on the British public without a mandate, in the absence of public demand, and without proper consultation. They say it is essential that Parliament “proceeds with extreme caution before fundamental alterations are made to an institution that provides the primary tried and tested context in which children are born and raised.”
They also show how, once the core understanding of marriage in the current law is overthrown, the Bill makes the law on marriage vulnerable to “even more radical change in the near future”.
Even though their principal argument against the Bill is that it alters the meaning of marriage to the detriment of children and society, the bishops also object to the inadequacy of the safeguards the Bill puts in place to protect those who adhere to the law’s traditional understanding of marriage.
They foresee a series of difficulties and barriers both for individuals — especially, they say, teachers — and organisations, who face series of restrictions on freedom of conscience and of religion. Nor, they say, have the implications of the Public Sector Equality Duty been adequately addressed.
The Bill does nothing to prevent public authorities from taking into account a decision by a religious organisation not to opt-in to same-sex marriage. The Bill does nothing to prevent religious organisations which do not opt-in to same-sex marriage from being treated less favourably by public authorities, for example by refusing to award public contracts or grants to religious organisations.
In any case, the Government’s “safeguards” are subject to review by the European Court of Human Rights, which has already shown that Article 9 (protecting freedom of conscience and religion)
does not provide adequate protection when there is a clash between it and other competing rights and interests. The Government cannot therefore guarantee that the ECtHR would accept the safeguards put in place to protect the position of individuals and organisations that have a conscientious objection to same-sex marriage, should a challenge be brought.
Nor, the bishops say, have the wider implications of the Bill been thought through, “no doubt because of the rushed way in which the legislation was prepared”. The result, they warn, could be “costly litigation, the need for continuing ad hoc parliamentary engagement, or both.” The result will be a widening gulf between secular and religious understandings of marriage, and inevitably “a more complete separation of church and state in the area of marriage”. Indeed, they conclude, “the choices that Parliament is being called to make will have profound implications for the future architecture of relations between church and state in Britain.”
For more information, and how to contact your MP, see the CBCEW site special section here.