Thursday, January 03, 2013

Natural Law and Marriage: 3: changing marriage

Smashing a glass at a Jewish wedding: irrevocability.
The best thing I've found (my search has not been exhaustive, I should add) on this subject is the Girgis, George and Anderson paper, What is Marriage? (A revised and expanded version is available as a book to buy.)

Also very worth reading is the paper by the British lawyer Julian Rivers: Redefining Marriage: the case for caution.

The Confraternity of Catholic Clergy have a good, short 'Briefing Paper on "Same Sex Marriage"'

Bishop Egan's short and trenchant statement is here.

A common theme in these treatments, which is developed at greatest length by the Girgis, George and Anderson (GGA) paper, is that the proposal is not simply to 'let gays marry', but represents a fundamental change to the legal understanding of marriage. GGA point out, in fact, a very important weakness in the case for change, in that advocates do not appear to have a coherent account of what marriage is, and for the most part they avoid even addressing the issue. This is a very important tip in dealing with them in debate: remember to ask what advocates of Same Sex Marriage (SSM) actually want. What is their vision of marriage?

Rivers reminds us of the Common Law definition of marriage: 'the voluntary union for life of one man and one woman to the exclusion of all others'. This is terribly simple, and it makes it look as though it would be a simple matter to extend it to same-sex couples. But, as Rivers explains, this is misleading, for without straying beyond a purely legal perspective there is a lot more to marriage than that. There is the connection with sex, both in relation to the seal of marriage (non-consummated marriages, however validly contracted, can be annulled, in civil as in canon law), and in relation to divorce (adultery is a ground for divorce; in canon law it is a ground for separation). There is the connection with property, which I don't need to go into, and there is the connection with children: they take their surname from their father, parents have all sorts of rights and obligations to determine their care, upbringing, and education, and even after divorce both parents normally have the right to see them. In short, the law's view of marriage assumes that it is an exclusive sexual relationship which will typically be fruitful. It needn't be either, of course, but the point of the legal penumbra of marriage is to deal with the fact that it normally is, and that is normally what people have in mind when they get married.
A military wedding: public recognition

Although they are rather keen on some of the tax implications of marriage, the advocates of SSM are not at all interested in the sexual and procreative aspects. They are hardly mentioned in the Government's various documents, for example. The question of what is going to constitute consummation, or adultery, in a same-sex marriage, is one they are keen not to ask. Instead, they just want to tweak the common law definition, so it says something like this: 'marriage is the voluntary union for life of two adults'. There would be no official definition of what kind of union it is, but (especially if siblings are excluded), the suggestion will be that it is a romantic union. And indeed, we are constantly told by advocates that it is all about recognising the love of the partners.

It is a fair assumption that, if SSM is enacted,  the concepts of consummation and adultery will, sooner or later, disappear from the legal understanding of marriage completely. Homosexual relationships, even successful, long-term ones, are not typified by sexual exclusivity, in any case, as a study cited by GGA points out. Nor are they as long-lasting, and this will put enormous pressure on the law to facilitate faster and cheaper divorces. The asymmetrical biological relationship between same-sex partners rights and any children they may have in their care will undermine the connection between the marital unit and the rights of children (in international rights law) to know and ideally be looked after by their biological parents.

The Arnolfini wedding: fidelity and fecundity
And so it goes on. It is interesting to note, of course, that the incidence of marital breakdown, the growth of unmarried families, and the growth of IVF, are all pushing the law in these directions already. The rights and duties of married parents vis-a-vis children are increasingly hard to distinguish from those of unmarried parents. Anyone in favour of destroying the family will see in SSM a golden opportunity to shove things a lot further and faster down the road we have been traveling, slowly, for a long time.

Now what is clearly out of the question, since it has already been tried (with Civil Partnerships), is a two-tier law of marriage, with one law for homosexual couples and another, stricter one, for heterosexual couples. That would obviously be discriminatory. Marriage will have to be made to fit homosexual couples, even if it is no longer so helpful to heterosexual couples. So the long and the short of it is that marriage, as it has been understood until now, will cease to be a legally recognised concept; in its place will be the notion of a legally recognised, personally significant, long term, romantic relationship, which may be sexually open, and may be ended at will by either party.

As the GGA paper explains, there is really no earthly reason why the law should get itself involved in personally significant, long-term romantic relationships, regardless of the sex of the parties. There is no need for legal (or indeed social) regulation of important friendships, and the addition of romance, whatever exactly that means, doesn't make any difference. Of course if it were a heterosexual romance, and children were likely to put in an appearance, then there are important social goods to preserve, and the law should, ideally, become involved, to strengthen the bond between the parents, and make provision for cases where the bond dissolves. But we are no longer talking about heterosexual relationships here.
'John Anderson my Jo': permanence

In a nutshell: in order to accommodate same-sex couples, the legal concept of marriage will have to shed the distinctive characteristics which make it useful and important for heterosexual couples starting a family. It will no longer be understood in terms of an exclusive sexual relationship, geared towards children, which is difficult to escape.

On the one hand, once the symbolic victory of allowing homosexual couples to marry has been won, no one is going to be able to explain the point of having all this legal flummery. It will have all the significance of a humanist funeral. And on the other, as the GGA paper explains, there will be no available explanation of why polyamorous groups should not be allowed to 'marry', or indeed humans and animals, or humans and inanimate objects. Sure, you'd need to tweak your conception of consent to let the last two types in, but it would be discrimination not to, wouldn't it? Polyamorous groups are not a joke: not only do many, many countries already recognise polygamy, but free-wheeling groups of people who are romantically involved are busily jumping on the SSM bandwagon already. The GGA paper gives you chapter and verse.

I think I'll say a bit more about some of the accusations made against defenders of marriage, in a further post or two.

1 comment:

  1. In other words, marriage is to be abolished and we're all to have civil partnerships instead, whatever they actually label them.