Marriage (Same Sex Couples) Bill – in a Public Bill Committee at 4:16 pm on 12th February 2013.
For the record, Professor Julian Rivers, can you just tell us a bit about yourself?
Professor Rivers: Yes. I am an academic at the university of Bristol. I have been teaching legal theory and public law at the university of Bristol for 20 years and I have written quite extensively on the legal regulation of religious organisations and questions of religious liberty, religious equality and human rights generally.
We have heard others talk about a religious view of marriage. Do you think there is a proper social view of marriage as a social institution? How do you see that meaning defined and what is its purpose?
Professor Rivers: We are seeing a conflict between two fundamentally different social views of marriage, and it reflects a debate that has been going on for at least 150 years. It is just that, right now, we are in the middle of a head-on collision between those two views. The institution of marriage has changed quite considerably down the centuries, but the older view, in its essence, tries to construct an understanding of marriage that is responsive to biological fact—what it takes to be true about the natural world. Of course, that process of construction has been going on for over 1,000 years.
What we see arriving in about the mid-19th century is what we could call a romantic view of marriage, where marriage is fundamentally about the expression of love of two people for each other. That is a view, then, which in some sense floats more freely above what is taken to be the natural givens of biological reproduction and of gender difference.
That debate has been going on for an awfully long time. The difficulty is that towards the end of the 20th century, for some very interesting cultural reasons, we found ourselves in a position in which the idea that ethics is grounded in nature becomes less and less plausible, and the idea that our ethics are fundamentally an expression of individual will and construction—our individual autonomy—becomes more and more plausible. In every society within the western world, we are seeing societies reaching a tipping point at which, suddenly, the older traditional view of marriage comes to seem unacceptably limited, and potentially even oppressive.
The romantic view of marriage, in which marriage is fundamentally about an expression of love of two people for each other and commitment for each other, comes to seem normal and appropriate. Once that tipping point happens, all the language of discrimination and equality cuts in. If we take the considerably older and more biological view of marriage, it is not discriminatory for two people of the same sex not to be able to get married; they just cannot get married. It is not what marriage is. Their relationship is something different. It might be perfectly good, valuable and valid, but it is not a marriage. There is a category error being made there. Once societies tip over into accepting the romantic view of marriage, the argument for discrimination is obvious; of course it is discriminatory to exclude two people of the same sex from such a view of marriage. Of course two people of the same sex may love each other and can commit to each other. We are just right in the middle of that tipping point in the UK. Other countries will hit that at different points; some have been there already. No doubt, many others will come to that. The fundamental question that we need to face is how do we live with our difference? How do we live with the fact that we have these two conceptions of marriage knocking around our culture? Are we going to try and simply enforce one to the exclusion of the other or are we going to try to make space for both?
My own view is that neither will go away. We cannot assume that in a generation’s time, nobody will hold the slightly older, more biologically rooted view of marriage, often associated with most of the major religious traditions. That will still be there, as of course will be the newer view—I stress that it is not just 10 years old, but a century and a half old—and the romantic view of marriage in which it refers to any two people. Our difficulty is constructing a legal regime that handles that fundamental tension, that difference, fairly.
Order. Before Mr Burrowes follows up his question, may I appeal for shorter answers, so that we can have more questions?
I invite headlines. What are the defining characteristics that have permeated law to the point where we are at? You say there are two views, but what are the characteristics that have defined the institution of marriage?
Professor Rivers: The law has tried hitherto to track the more biological conception of marriage. In that sense, that is why it has, for more than 1,000 years, insisted that a marriage can only take place between a man and a woman. It has been a settled part of the common law, and the romantic view of marriage has been allowed to flourish extra-legally through cohabitation primarily by people who rejected marriage and then more recently in civil partnership as a regulated form of a more romantic notion of marriage.
I am sorry, but I do find that analysis hopelessly flawed and historically completely inaccurate. The 1662 prayer book provides three reasons for marriage, one of which might by your romantic thing of people being able to share a mutual society in adversity or in prosperity. Before that is your procreation, and the second one is to prevent fornication and to provide for a more secure society. Have you ever read the judgment of the Massachusetts supreme court in 2003 in relation to same-sex marriages? It makes it clear that there is a long history of people getting married for a lot of different complex reasons, many of which were to do with money and property rights. I just do not see that binary division. It seems that you have created this, to be able to argue against same-sex marriage.
Professor Rivers: No, I do not agree with that. I did not mean to imply that the longer-standing, more biological view excluded the romantic dimension, but it insisted that several things were tied together to form a marriage. Obviously, the prayer book is a classic statement that tied together the three purposes that you identified, which includes the notion of romantic love.
But until 1753 and Hardwicke’s Marriage Act, there was no provision, other than that a clergyman of the Church of England had to take the service. There was no other reason that a marriage could be voided.
Professor Rivers: That is not strictly correct, because it was only in the 16th century that the requirement of ecclesiastical solemnisation became normal within what was then the Catholic—the universal—Church. If you go back even earlier, it was simply by mutual consent that you could get married, but it was mutual consent between people of the opposite sex.
I do not see how that creates your binary definition—that one thing is romantic love and relationships, and if you think that that is all that marriage is about, it is bound to lead to this; and that another version of marriage is about procreation, and therefore you could not possibly entertain the idea of same-sex marriage, and that is when you end up with: why on earth would we allow Prince Charles to marry Camilla?
Professor Rivers: When I talk about the older conception of marriage as being, to use this label, “biological”, that was a shorthand for saying that it attempted to be responsive to what it took to be natural facts about human kind—namely, the division into two sexes and the involvement of both sexes in the procreation of further human beings. That concept of union is ultimately responsive to biological union, in that it takes two people of opposite sex to produce another human being. It is biological in that broader sense, not in the sense that every single marriage obviously has issue in children.
A large number of the civil partnerships that I have seen have family responsibilities. They either have actual children—whether surrogated or however they managed it—or adopted children, so I would have thought that the care of children as a social good and as a strengthening of society was a third part of the value of marriage for everyone.
Professor Rivers: With respect, that misses my point. My point is that the meaning of marriage is socially constructed. We can define marriage in a number of different ways, and the question is how we go about doing that. We can go about doing it in a way that attempts to track biological reality—I am simply recording, as a matter of fact, that that has been the typical approach for centuries, if not millennia—or we can focus particularly on one dimension of a relationship, which is the romantic attachment, and we can make that the essence of marriage. We could make other things the essence of marriage. We could make it, and many cultures do, securing the inheritance of property. We could make marriage into fundamentally a property-based institution.
But we might want to do all these things, and that might point to why same-sex marriage adds to the greater goodness of the whole of society and cannot detract from the marriage of heterosexuals.
May I intervene in this conversation or debate between the witness and Mr Bryant? Several other Members wish to ask questions. I again appeal for brevity in questions and particularly in answers.
You are putting forward a fascinating argument, and your note was well argued. I want to ask you a question about the note that you produced. You said,
“Marriage affirms the equal value of men and women”— that was a constant theme through the note—and that
“the logic of equal recognition and radical choice means that the boundaries of any new definition will be far more vulnerable. Challenges to its exclusivity, its permanence and even its sexual nature will be unavoidable.”
Because of that, you think that marriage will “unravel”. Will you elaborate on that? What do you think the result will be of going down the path of this Bill?
Professor Rivers: Obviously, we are into crystal ball gazing, which is a dangerous exercise. I am simply trying to follow through the logic of what I see as the underlying conception of marriage, which is one based on romantic love and commitment, driven by a sense of individual choice: I decide to affirm my love for an individual and commit myself to that individual.
I suppose that it is a fairly simple point that love knows no norms. If you take seriously the notion that romantic love is at the heart of marriage, romantic love is fickle, as we all know. It changes, and so might, too, the nature of the commitment that we have for each other. Romantic love is not necessarily limited to one person. If you follow through the logic of romantic love, I think that ultimately you end up with the removal of marriage as a legal institution. So it is not logically clear to me that marriage should be regulated by law at all on that sort of basis.
Interestingly, if you look at Soviet conceptions of marriage in the early 20th century, that was precisely the logic they followed. Marriage was not legally regulated because it was seen as a purely affective romantic relationship between two individuals. So yes, there are lots of steps to be gone through, and I was engaged briefly in some crystal ball gazing, but I think it is a genuine possibility, which we should take seriously, that what we are seeing in a number of western states right now is not simply one step that will then solve everything and everyone will be happy; it is simply the first in a series of steps towards the ultimate deregulation or de-juridification of marriage in its entirety.
If I am following the logic of what you are saying, Professor Rivers, you are suggesting that because lots of lesbian and gay people may want to join the institution of marriage, that institution may ultimately no longer exist.
Professor Rivers: Obviously not immediately, but the arguments used to support the extension of marriage to two people of the same sex are equally applicable in other contexts as well, and will, sooner or later, be used in those contexts. The concern, if I can put it like that—no, I will stop there.
Of course, Professor Rivers, you are entitled to your view, and it is crystal ball gazing as well, but that is the first time that I have heard the suggestion that, because lots of people want to join the club, it may stop existing. You said that marriage is a socially constructed concept. You were very clear that that is right, and you have also said that it has changed quite considerably down the centuries. You posited this binary notion, which I think Mr Bryant had some pertinent questions on. Where is the threat to marriage from two people of the same sex who love each other wanting to experience the benefits that those of opposite sexes have in an institution that everyone acknowledges brings real benefits? What is the threat?
Professor Rivers: I thought I had answered that in terms of the potential developments that might occur, following on over the next generation or so. That is one threat. The other threat is to religious organisations and people who wish to maintain a different view of marriage not being able to do so, when in good conscience they should be entitled to their views and protected in law. That is actually a much more important thing to focus on in terms of the Bill in front of us.
One final, quick question: in your biological definition of marriage, what would you say to those heterosexual couples who are infertile, or who marry later in life, perhaps past the point where they are able to have children, or to those children who have been adopted by a heterosexual married couple and grow up in their family? Are those marriages not valid under that interpretation of the binary system that you posited earlier?
Professor Rivers: The answer from within that more traditional account of marriage would be that the fact that not every single instance displays every characteristic of the definition does not deny the status of the paradigm as a central case. You posit as your central case of marriage the one in which a man and a woman join together and produce children, and you then have a series of debates about the extent to which social forms that are more or less like that fall within the boundaries of your definition. Of course, that debate is one of the ways in which the law of marriage changes. For example, questions on whether adoption is permitted or not is a point on which societies differ. At a certain point, they accept adoption, and when they accept it, they do so because it looks like your paradigm or your central case. You should not be thinking in terms of, “You’re either in or out.” It does not work like that.
Sorry, it is my fault, I am confused, but can we get this absolutely clear—you are opposed to same-sex marriage?
But at the beginning, you also said that this whole debate had come out of changes in the 19th century around definitions of romantic love, so did you not lose the battle 200 years ago? You also acknowledge that there will be different conceptions of marriage now and for the foreseeable future. That is surely a “live and let live” philosophy, as we have heard earlier, rather than an objection to it.
Professor Rivers: I do not think the battle has been lost; the battle will carry on. We are just seeing one more round in it, if you describe it as a battle. When the romantic notion of relationships developed, there was, of course, considerable opposition to same-sex relations. We know that. What has happened is a combination of society becoming more relaxed about same-sex relations, coupled with a romantic notion of marriage. When those two come together, the proposal that there should be same-sex marriage seems obvious.
You say in your essay:
“The fact of difference has to be acknowledged and valued if we are to secure equality.”
You talk about marriage securing the equal value of men and women. How do you make that point?
Professor Rivers: I make that point by reflecting on whether marriage might be distinctive as a social institution in being one of the few cases where the difference between men and women is both acknowledged and turned into a form of co-operation, rather than either being acknowledged and resulting in separation or not being acknowledged at all. Marriage is unique as a social institution, because it expresses the co-operation of a man and a woman.
Just for the record, Julian and I know each other for various constituency reasons in Bristol. We may come to this from different perspectives, but we can still be friends afterwards.
Your essay, which I have read—your daughter urged me to read it, so I have; you can feed that back to her—puts two arguments against same-sex marriage. One is the slightly puzzling one that it might undervalue the equal value of men and women that is afforded by marriage, but I want to ask you about the second one, on which you say:
“Marriage promotes the welfare of children”.
Normally we hear about the procreation of children. Do you accept that the welfare of children can be met in a variety of parental relationships? There can be gay dads and lesbian mothers. There are half-brothers, half-sisters and stepfathers. Family relationships are complicated in modern society, but the welfare of children might actually be strengthened by same-sex marriage.
Professor Rivers: Again, it is important to note the nature of that argument. There is a simplistic argument around the impact of same-sex parenting on children. I accept in the paper that the evidence is probably in favour of there being no detrimental impact on children whatsoever of being brought up in same-sex families. There is one little note of caution that I would sound there, but it is in the paper.
My main concern is about what the purely romantic view of marriage does to children in other-sex marriages—the vast majority. There I would highlight the impact of divorce on children. We know that divorce is incredibly traumatic for children. Divorce, to my mind, is one of the results of the taking hold of a more romantic view of marriage. Once you fall out of love with each other, there is no reason to stay together, and that is detrimental to children. In the paper, I worry about the potential development and strengthening of this purely romantic view of marriage, which might have that impact on children.
I have to say that I am slightly perplexed by the argument, which seems to me to be a very black and white view. Should marriage not be a far more multicoloured thing? It means many different things to many different people. My marriage is very special, but that does not mean that it should be the same as everyone else’s. Does not the Bill, to use your words, make space for both views? Is it not possible for those who wish to take part to opt in and for those religious groups that want to retain their view of what marriage represents not to do so? I do not understand your argument; it confuses me.
Professor Rivers: Thank you for raising the question of the opt-in in the Bill. I stress that my prime area of expertise is in religious organisations and religious liberty, and I had hoped to be able to address some of those protections for religious organisations in the scope of the Bill.
The opt-in is one element of the lock. It is important and, broadly speaking, correct. The fundamental question I had about the opt-in was the exclusion of civil partnerships from it. It seems to me to be unprincipled and potentially not compliant with the European convention to allow an opt-in for same-sex marriage but not to allow an opt-in for civil partnerships. However, that is only one of many ways in which I fear that this Bill is not fully European convention-compliant.
I was going to ask a question that was not to do with that area, so do you want to expand on any aspects of that? Do you feel that allowing those religious organisations to opt in makes the Bill stronger, in as much as it is not a blanket ban on religious organisations? Given what you have been saying about the development of different views, we have heard evidence from some religious groups whose view has developed to say that they wish to carry out same-sex marriages. I am really struggling, in an unacademic way, to understand how, given the long-term decline in people getting married, allowing more people to get married is going to contribute to that decline. That is a question and an observation.
First, do you think the Bill is strengthened by allowing some religious organisations to opt in, rather than imposing a blanket ban on all religious organisations from doing same-sex marriage? Secondly, how does the fact that some religious organisations wish to opt in fit with your view of the historical context and definition of marriage?
Professor Rivers: I think it is simply a matter of principle that religious organisations ought to be able to opt in. I do not think it is any more complicated than that. On the question of why some religions choose to do so, religions change over time and modify their views on what constitutes marriage. We should not think of religions as monolithic blocks. They are, of course, incredibly diverse and fluid things. The Bill quite rightly allows religious organisations that reconcile their view of marriage to opt in. I have no issue with that.
How watertight is this Bill with regard to potential challenges in the courts concerning human rights and particularly the religious angle?
Professor Rivers: I think it is almost perfectly watertight. There are a few points I will list in respect of the core function of marrying people, but I do not buy the argument that the exemption for the Church of England is at risk from being overturned in Strasbourg. I think the Strasbourg case law is reasonably robust that established Churches enjoy freedom of religion rights under article 9, so if the state should choose to exempt an established Church from carrying out certain forms of marriage for reasons of religious doctrine and practice, I would be very surprised if that was overturned in Strasbourg. Nothing is impossible, but that is close to impossible.
There are a few minor worries around a drafting point in clause 1. Section 17 of the Marriage Act 1949 contains the possibility of marriage in a church or chapel in which banns may be published under the authority of a superintendent registrar’s certificate. It would be worth clarifying that superintendent registrars should not issue certificates for the solemnisation of marriages in churches or chapels when the church or chapel is not prepared to solemnise those marriages. That is a minor point to do with proposed new section 26(1)(e) of the 1949 Act, which is inserted by clause 3.
I am also slightly surprised that the Government have decided to deal with the issue of the Church in Wales through delegated legislative powers granted to the Lord Chancellor. The reason I am slightly surprised is because—
Order. I am afraid that brings us to the end of the time allotted to the Committee to ask questions of our witnesses. I thank you on behalf of the Committee.