Nationalising marriage

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Same-sex marriage. What do I think about it? The executive summary, for the benefit of those who can’t be bothered to read the entire article, is that I’m in favour of same-sex marriage per se, but I’m not entirely convinced by the current proposals to legislate for it. The rest of this article is an attempt to explore some of the issues involved and explain why I reach that conclusion.

Firstly, one of the things that has to be faced is that the same-sex marriage debate isn’t just about marriage. It’s also about sex. Same-sex sex, to be precise. And the reason that’s a problem is because, historically, marriage in Western Europe – including the UK – was controlled by the church. You were married if the church said you were married, and not married if the church said you were not. And mainstream Christian doctrine has always asserted – and still does – that same-sex sexual activity is sinful. So same-sex marriage was out of the question, because marriage requires sex and the only valid sex (in the eyes of the church) is heterosexual sex.

But, of course, the church doesn’t control marriage any more. And it’s instructive to look at why not.

In 1753, Parliament passed a law introduced by the then Lord Chancellor, Lord Hardwicke (that’s him, on the right). Officially known by its full title “An Act for the Better Preventing of Clandestine Marriage”, or its short title, “The Marriage Act”, it’s often better known as “Lord Hardwicke’s Marriage Act” after its creator.

Prior to the Act, marriage in England and Wales was controlled solely by the Anglican church. There was only one way to get married, and that was to be married by an Anglican priest. But not only was that the only way, it was also all that was necessary. So long as you could persuade a priest to marry you, you were married.

That led to several possibilities for abuse. For example, although the church officially frowned on bigamous marriages, or marriages where one (or both) partners was under age, the lack of any formal requirements for a valid marriage other than the blessing of a clergyman meant that it was perfectly possibly to contract an entirely valid and binding bigamous marriage, or for someone under age to legally get married.

In particular, under age marriages were a real problem. Wealthy men would buy a child-bride from traffickers (or even the girl’s parents, if they needed the money badly enough), bribe a priest to conduct the ceremony and – lo and behold – they were legally, and validly, married. Given that society (and the law) at the time effectively considered a wife to be her husband’s property, that amounted to little more than legalised slavery.

Lord Hardwicke set out to change that, hence the Act which bears his name. And there’s little doubt that it was justified; the abuse of existing marriage procedures had become a well publicised scandal and the whole system was ripe for reform. But in passing the Act, Parliament not only addressed the issue directly at hand but also took a revolutionary step in the history of marriage. Because, for the first time, the state made itself, not the church, the ultimate arbiter of whether a marriage is valid or not. Marriage had, in effect, been nationalised.

Of course, Lord Hardwicke didn’t make any radical changes to the way most people got married. Although the state now made the rules, it still left it to the church to exercise them and consecrate the actual marriage. Jews and Quakers were granted the privilege of holding their own wedding ceremonies, but everyone else – including Catholics, as well as Muslims, Hindus and any other religious minority – had to go to the Anglican church to get legally married.

It didn’t stop there, though. In 1836 the right to conduct their own weddings was extended to other Christian denominations and other religions. And, in 1949, the state also took upon itself the ability to hold the ceremony as well, with the creation of civil weddings. For the first time, it became possible to get legally married without the involvement of any religious organisation. And now, the government is proposing to go another stage further, and alter one of the fundamental definitions of marriage so that it is no longer restricted to heterosexual couples.

One of the most common arguments made by opponents of same-sex marriage is that the government has no right to make that change. But that argument was lost, at least in principle, in 1753. It was definitively shown to be lost in 1949, when the law ceased to require wedding vows to be made before God. The reality is that the state now defines marriage, has the sole prerogative to make rules regarding marriage and is perfectly entitled to extend marriage to same-sex couples.

For that reason, I support, in principle, the concept of same-sex marriage. I don’t do so because I believe in a specific right to same-sex marriage, but because I believe in the general right for people to do what they want with their own lives provided it doesn’t cause harm to others. If two people want to enter into a contractual relationship to live together as a couple, and they want to call that relationship “marriage”, I see no reason why they should not.

That is the libertarian view. To that extent, I entirely agree with David Cameron when he said “I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative”. I’m a member of the Conservative party because I believe it to be the most committed of the main parties to individual freedom and personal liberty. To be sure, there are times when I find some of my own party a bit too close to the authoritarian end of the spectrum, but, on the whole, I think it’s true to say that the Tories, on the whole, tend to stick up for the right of people to make their own choices in life. And getting married is one of those choices.

That then, is why I support gay marriage. So why am I uncomfortable with some aspects of the current proposals?

Essentially, it’s because of the same principles. I believe that the state should not prevent a couple calling their relationship “marriage”, provided it meets a few (hopefully uncontroversial) minimum standards, such as being voluntarily entered into by consenting adults who are not already married to someone else (we’ll leave the issue of polygamy aside, for now!). And I agree that the state should allow organisations to conduct ceremonies which create these partnerships and call them “weddings”. But, equally, I believe that the state should not force any individual, or organisation, to recognise as marriage something which their conscience says is not. If a church, or other organisation, believes that marriage is only for heterosexual couples, then, for them, they should be able to apply that belief to their own activities and their own members.

The government is proposing to deal with religious objections to gay marriage by simply making it illegal for religious organisations to conduct gay weddings. For the Church of England, it goes even further and proposes the so-called “quadruple lock” which not only forbids it but makes it impossible to permit without new legislation.

That is illiberal. There are religious groups that have no objection to same-sex marriage, and want to conduct gay weddings. Why should they be forbidden to do so?

The problem is created by the nationalisation of marriage. Since the state decides who is and who is not married, not only is it impossible for anyone to create a valid marriage in defiance of the state, but it is equally impossible for anyone to deny the validity of any state-endorsed marriage. So, even though religious groups will not be permitted to conduct same-sex weddings, they will still be required to recognise as valid any same-sex marriage legally contracted elsewhere.

We’ve already seen the effects of this in some court cases related to civil partnerships. A B&B owner, for example, was successfully prosecuted for unlawful discrimination as a result of refusing to allow a same-sex couple to share a double room. The rights and wrongs of that decision as it applies to businesses are a matter of debate, but things could get a whole lot messier if the principle is applied to religious organisations. Suppose a church has, say, a policy that only married couples may be home group leaders. Will they be at risk of being sued if they refuse to accept a homosexual couple as married?

It seems to me that the solution to this is to de-nationalise marriage. Or, possibly, go to the other extreme, and espouse the principle used in, for example, France that the state is only concerned with state marriage and has nothing at all to say about any other form. Either way, religious and other groups should be able to make their own definition of marriage and use their own definition for their own purposes. Only in matters of law should the state definition take precedence.

What I propose is that the state should get out of the marriage business, at least directly. Close the registry offices, conduct no more civil weddings (or civil partnerships). Instead, let any organisation – religious or secular – have the freedom to conduct weddings and pronounce the resulting partnership a marriage.

We’d still need some basic regulation, along the lines of that originally introduced by Lord Hardwicke. Only one marriage (from any source) at one time, a minimum age for any marriage partner and a requirement for witnesses and the formal registration of a marriage. But beyond that, nothing. In return, the state agrees to recognise as valid, for legal purposes (eg, tax, inheritance, parental rights), any marriage which meets the stipulated criteria. But, crucially, that acceptance of validity by the state does not extend to an obligation on anyone else. If the Liberal Catholic Church of Saints Peter and Paul Conjoined wishes to celebrate same-sex weddings, then let them. Equally, if the Apostolic Church of the First Century Traditionalists believes that a marriage can only be validly contracted by a couple who are not only of different sexes but have been baptised by immersion as adults and where the female parter keeps silent in church, then, for them, that is the only marriage they are required to recognise.

More realistically, the majority of mainstream Christian churches (as well as most Muslims and Orthodox Jews) will want to preserve their traditions of marriage being for heterosexual couples only. A significant minority will disagree. Most secular groups will see marriage as gender-neutral. There is no reason why any of these should be forced to act against their own beliefs and opinions.

The whole reason why the same-sex marriage debate has become so bitter is because both sides are starting from the position that it’s all about telling other people what they must and must not do. If we started, instead, from the position that it’s all about letting people do what they want to do, then I think it would be a lot easier to find common ground. Any chance we could, at least, try it that way?

Post script

There are two major objections to my proposed solution, so I might as well mention them, if only in passing. The first is from the traditionalists, who would argue that, by adopting the widest possible definition of marriage for legal purposes, the state is implicitly taking sides even if it is ostensibly not seeking to impose that position on anyone else. The other is from the radicals, who would argue that a marriage which isn’t recognised by everyone is still a second-class marriage and thus not truly equal to a traditionalist marriage which has no opponents. I think both of these arguments have merit, but I also think that, to an extent, they cancel each other out. No solution is going to be ideal for everyone, but no libertarian solution ever will be because it starts from the premise that people are allowed to disagree without being forced to conform.

Post-post script

I’ve written a few extra comments about this in a separate article.

  • Solid analysis. The root cause of the problem is the widely held view that it is the job of the state to prevent discrimination. This leads to a perceived conflict of rights. The right of Gay couples not to be discriminated against because of their sexual orientation and the rights of Christians not be discriminated against because of their religious beliefs.

    Gay couples should of course be free to live their lives as they see fit, but that does not give them a right to force Christians to approve.

    Christians should be free to live their lives as they see fit, but that does not give them the right to force gay couples to share their views.

    In a libertarian society no problem arises, gay couples can live together and refer to it as marriage. The ceremony would be performed by whoever was willing and others would be free to refer to them as married or not depending on their views.

    There is a libertarian right to discriminate, although exercising such a right is often counter productive. Take the case of B&B owners who refused to allow a gay couple to rent a double room. In a libertarian society such a refusal is entirely legitimate, people should be free to use their property as they see fit without coercion. There is no legitimate right to force another to rent you a room. However, businesses that operate objectionable discriminatory practices are unlikely to thrive in a free market where customers are also free to not do business with such people.

    More on the ethics and economics of descrimination here

  • chforsyth

    “In return, the state agrees to recognise as valid, for legal purposes (eg, tax, inheritance, parental rights), any marriage which meets the stipulated criteria. ”

    Why bother connecting those any longer with “marriage”? The original reasons for making the connection have long since been moved to other legislation. There are no longer any tax breaks from marriage, inheritance could be handled separately by registering a legal agreement unconnected with marriage, and parental rights should apply when parents are not married.

    Hardwicke’s other aim (protecting the underage) is surely amply covered by modern legislation independent of marriage acts.

    The connections are now so diffuse that there seems no reason at all for the state any longer to be involved. The Times leader refers to “[couples] who seek no more than the civic recognition of their union” but why should the state be involved in relationship registration (if so, why not fiance(e)s or your bidie-in?). If a couple want to announce their life-long partnerships to their friends, let them. It’s not clear why officialdom needs to be involved.

    It might be thought that immigration rights would be lost, but as it stands, the Labour government passed legislation that specifically prohibits a person younger than 21 from gaining immigration rights by marriage (cf. case of young Canadian bride a few years ago ), so once again there is no longer a necessary link to marriage. (“The Home Office said the benefits of the new rules in helping prevent forced marriages outweighed the drawbacks”, which shows there is sometimes little advantage in an official recognition of marriage.)

  • Topcat

    I still dont understand why two sisters living together are still discriminated against. It’s unlikely they would what to marry – but why tax discrimination, in particular inheritance tax?