My Lords, the noble Lord, Lord Jenkin, observed that, from a Christian perspective, God can be present in every true love. I absolutely agree. But marriage is about more than love. Then we are told that the issues at stake here are equal rights, justice and social inclusion. Certainly, these are things about which Governments may legislate. Indeed, if they wish to support particular kinds of relationship by according them tax and pension benefits, that must be a matter for normal political debate. However, in this Bill the Government have chosen to proceed not by addressing real, material or legal inequalities but by redefining the key concept of marriage and its meaning.
When Parliament legislated for civil partnerships, society gave legal and institutional expression to what many hold to be true—that gay and lesbian people should have the same rights to formalise their commitment to each other and enjoy the social and legal benefits that opposite-sex couples have. If there are matters in that legal provision that are inadequate or missing, rights that have not been conferred or legitimate aspirations not recognised, then that Act should be amended, and that would have my general support. However, the battleground that the Government have chosen is not material but conceptual. The argument is driven by emotional rather than logical considerations, which is why it is so difficult to debate. No matter how loud the protestations to the contrary, at stake is a shared and common understanding of the concept of marriage, together with the consequences—intended and unintended—to which they may lead.
We are told that the scope of marriage has evolved. It has, but “scope”, my Lords, not fundamental nature. The scope, as shown by the noble Lord, Lord Pannick, has been varied through history with regard to age of consent, number of permitted spouses, termination, what is allowed or prohibited and restrictions on members of the same family group. What has remained constant in all times and all cultures until very recently is an understanding of marriage founded on the premise of sexual differentiation and the resulting generic potential for procreation. It is with this unchanging basis that marriage has taken otherwise different forms.
The Christian tradition, in an understanding that has hitherto also informed English law, speaks of sexual union, the sharing of worldly goods, the help and comfort of one for the other, and the procreation and nurture of children. On their own, none has been understood to constitute marriage. Indeed, each of these worthy objectives may be found embodied in other legal arrangements. An agreement to share goods may be a valid contract, but it is not marriage; nor does sexual union of itself constitute marriage. Family units with children exist and have always existed outside the bonds that are recognised as marriage. There are many forms of human relationship for the support and encouragement of mutual love and comfort that are not marriage. Yet now, a commitment to love and be loved, arbitrarily confined to just two non-related human beings, is to be the sole basis for the married state.
Many of those advocating this development have sought to portray any opposition to it as a faith issue. It is not; it is a societal one. Shorn of the element of complementarity of genders, all marriage will be redefined, with consequences for all. Until now, common to the definition of marriage accepted by church and state has been an understanding that a marriage is not completed in the marriage ceremony, wherever that may take place. Marriage must also be consummated—completed—in the sexual union of male and female, and is voidable if it has not been consummated. However, with the marriage of two people of the same sex, the proposed law says that these provisions do not apply. Where is the equality in that?
Similarly, the current definition of adultery will remain unchanged—sexual intercourse outside marriage with a person of another sex—which, again, does not apply to marriages between those of the same sex. Where is the equality in that? Therefore, a Bill predicated on the claim that marriage should be equal and gender is irrelevant has to recognise that this logic breaks down when confronted by the reality of marriage as hitherto universally understood. However, the proposals contain their own logic, which is that over time the historic understanding of marriage must in law cease to exist. Despite this huge difficulty, I have still tried to understand the motivation for this radical reform. Why was civil partnership insufficient? Such partnerships already allow couples to share the legal benefits of marriage and, if there are remaining differences, it is easy to amend the law. I struggle to hear what is missing. I do not underestimate the power of law to change attitudes, but the question is, which law, and what is missing that would make such a difference? A civil partnership is an act of registration, simply recording in law what is already deemed to exist, whereas marriage, in law, is seen as a “performative act”. It brings something new into being, something that until the exchange of vows and consummation did not exist. A desire for such a performative act, a ritual, and an opportunity publicly to commit to mutual love seemed to be aspirations which I could appreciate, and so the law on civil partnership could be changed without depriving marriage of its single, central meaning.
However, Clause 9 of the Bill provides for an existing civil partnership to be transformed into a “marriage” simply by signing a register. If one marriage is simply a matter of civil registration without vows, performative acts or criteria for consummation, no provision concerning adultery, or presumption of parenthood, and if the word “marriage” is to have a single coherent meaning, then for every other marriage it must be the same. Marriage is now civil partnership by another name. A basic understanding of marriage, in law, will have irrevocably changed, and with one reality now bearing two different labels; or we will have legislated into being two very different realities, but confusingly bearing the same name. If that happens, it raises huge issues about social cohesion, and a move away from common shared values. I remain profoundly uncertain about the legal position not just as regards the personal views of teachers but as regards what may be taught in church schools. Are they to be allowed to teach a traditional understanding of marriage, one which until now church and state have shared, while in non-church schools a different understanding is to be taught? If so, what will be the implications for social cohesion as a result? Or will church schools be forced by law to conform to a new understanding which has no roots in the doctrines of any of the major faith communities, which then sets an extraordinary precedent for the state’s power to determine articles of faith, unparalleled outside the experience in history of repressive ideological states of the extreme right and left?
Further, what is to prevent other multiple understandings, including recognition of polyamorous, polygamous and polyandrous relationships, being legislated for in due course? That is the internal logic of tackling a legitimate issue of inclusion through the redefinition of concepts rather than addressing any real inequalities that may exist.
“Equity is a very much better principle than equality”.
In conformity with that principle, my hope is that the Government will withdraw the Bill, full of so many seen and unforeseen consequences for the fabric of our society, and start again to produce something which truly does address the really important issues that have been raised in this debate.