Law does not recognise same sex marriage

The issue of same sex marriage is not only incredibly topical but also highly contentious. The current legal position is that the law does not recognise same sex marriage. To evaluate this approach I will look at the three main reasons as to this decision. These are; the belief that marriage is solely a heterosexual institution, the fact that civil partnerships are available to same sex couples and the belief that the traditional family must be protected.

Marriage is between man and woman

The case Hyde v Hyde states that marriage is, “The voluntary union for life of one man and one woman, to the exclusion of all others" [1] This legal understanding of marriage remains the same to this day and it was this definition that was used as a defence, in the case Wilkinson v Kitzinger, [2]  against the idea that a gay couple could be married. This definition, or as Probert argues defence [3] , of marriage seems to be heterosexist. Why should the institution of marriage be thought of only in terms of man and woman? This ingrained view of marriage is accepted as the norm because there has never been another option that the law has given credence. Let us not forget that when this definition was made by Lord Penzance being homosexual was a prosecutable offence in England. [4] The courts were homophobic and this coloured their definition of marriage. As Crompton states, “Should we not have marriage for the twenty-first century reflecting twenty-first century values and not those of a time...when male homosexuality was outlawed and female homosexuality presumed not even to exist?" [5] English law has used a definition of marriage that is no longer relevant to the 21st century to, “bolster the argument that marriage was intrinsically a heterosexual institution." [6] In bolstering this heterosexual ideal the law denies gay couples the chance to express their love via the age old tradition of marriage.

In clinging on to the Hyde v Hyde definition as a defence against same sex marriage I believe that English law has revealed a lack of progressiveness. Just because something was, does not mean it still should be. If the law refused to change old understandings of what is just we would still have laws that today seem outrageous. For example as late as the 90’s the law allowed marital rape to go unpunished. It wasn’t until 1991 that the pivotal case RvR [7] changed the law of rape and took another step towards the empowerment of women. In this regard I believe the Hyde v Hyde [8] definition has to be reinterpreted so that it is relevant to a modern society which is made up of men, women, homosexuals, straight people and a myriad of other types of people. As Probert argues, “Hyde should be seen for what it is: a case of considerable historical interest, that tells us a great deal about the attitudes of mid-Victorian England — but nothing about how marriage should be defined today." [9] The case Goodwin v. United Kingdom [10]  saw the courts take a more expansive approach to who can get married when it allowed that a transgender person can marry providing they are able to have a biologically compatible sexual relationship with their partner. Whilst this can be seen as a step towards a more progressive approach to who the law allows to marry, the courts are still imprinting on couples a heterosexual ideal. It is only when the courts have had a radical rethink as to what marriage means today in 2011 that we might see a more advanced approach to same sex marriage.

Civil Partnerships are available as an alternative to same sex marriage

The Civil Partnership Act 2004 [11] created, “a parallel but different legal relationship that mirrors as fully as possible the rights and responsibilities enjoyed by those who marry..." [12] At the time it was seen as a revolutionary piece of legislation that finally gave gay relationships legal recognition. In Wilkinson v Kitzinger, Potter P held that not recognising same sex marriage was not a breach of article 8 of the European convention, the right of each person to, “respect for his private and family life, his home, and his correspondence." [13] It was argued in court that this article had not been breached as the option of having their relationship recognised as a civil partnership was available to the same sex couple. However, in creating an institution that is similar but different to marriage, English law may in fact be perpetuating inequality. Why does the law acknowledge that same sex couples, who are willing to legally commit to each other, should be entitled to the same rights and protection as a heterosexual married couple but then refuse to recognise those couples as married. As mentioned above the institution of marriage has a deep ingrained symbolism as recognition of the greatest show of love and commitment a couple can make to each other. As a gay respondent in a legal study stated, “The term ‘civil union’ perpetuates the stigma of being different. Why doesn’t the straight world abolish ‘marriage’ and adopt ‘civil unions’? Because they see it as second-class. As do I. So why should gays and lesbians settle for second class when the straight world doesn’t?" [14] Civil partnerships can be considered a second rate version of marriage, lacking the tradition, social acceptance and romantic symbolism. To the gay community it would appear that the law, rather than being a catalyst for change, is helping to keep homosexuals marginalized.

Also despite the assimilation of legal consequences of marriage to civil partnerships the law has sought to desexualize civil partnerships. Adultery is not a ground for the dissolution of a civil partnership [15] and non consummation is not a ground for annulment [16] . As Cretney states, “A civil Partnership is a ‘relationship’ between two people of the same sex but Parliament has not been prepared to ordain that it should necessarily be a sexual relation." [17] Why is it that the foundation of a heterosexual marriage is sexual intimacy but a civil partnership is stripped of the very act that is a significant expression of love and intimacy? The desexualisation of civil partnerships may give an insight into the recalcitrance of the courts to recognise same sex marriage. It could be argued that a possible reason for the laws unwillingness to recognise same sex marriage is that does hold the sexual intimacy of homosexuals as equal to that of straight people. The desexualisation of civil partnerships also reinforces the view that a civil partnership is merely a legal status. As there is no sexual element necessary for a civil partnership is can be abused by friends or business acquaintances as a “tax haven." [18] Although the same tax benefits are a legal right of marriage, marriage, unlike civil partnerships, is an institution that is shrouded in history and tradition and as a result it is less likely to be entered into without serious thought and a desire to truly commit to ones partner. It can be argued that the desexualisation of civil partnerships is yet another reason why civil partnerships are not a sufficient alternative to same sex marriage. As Crompton puts desexualisation of civil partnership is yet another way the law, “sends out a clear signal that these relationships are valued less highly than heterosexual relationships, however much this might be obscured by sound bites about equality." [19] 

Same Sex marriage cannot be allowed as the traditional family needs to be protected

In his judgement Potter P argued that while preventing same sex couples from marriage might be discrimination under article 14 of the ECHR it was justified discrimination [20] . He first defined marriage as a, “means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit (or "nuclear family")" [21] and then went on to justify the laws refusal to recognise same sex marriage by saying, “to accord a same-sex relationship the title and status of marriage would be to fly in the face of the Convention as well as to fail to recognise physical reality." [22] Potter P clearly hoped to protect the traditional family and believed that not allowing same sex marriage would do so. However I would ask; what is the traditional family? In the 21st century, families take on a wide range of guises from single parent families to families with no children. I would argue that this particular vision of the traditional family is coloured by the homophobia of the past when same sex relationships were a criminal offence and socially stigmatized. As Allen, discussing the legal approach to same sex marriage in America, states, “...the fact that marriage has not included same-sex couples in the past does not explain why that cannot be so now anymore than anti-miscegenation laws that prevented interracial couples from marrying justified continuation of those laws." [23] By adhering to an ideal that has never had the opportunity to be inclusive the law reveals itself as taking an outdated and, it could be argued, a somewhat homophobic approach to the idea of same sex marriage. As Auchmuty states, “by invoking a vision of a 'traditional' marriage, which only represented the dominant ideal for a finite period in relatively modern times and, even then, did not reflect the reality for many, Potter P fails not only to accept that this period has passed, but also to provide an adequate justification for defending it." [24] 

Potter P believes marriage, “encourage(es) monogamy but also the procreation of children." [25] However, I would argue that this is an inaccurate and out of touch view. Divorce statistics, although at an all time low, reveal that many marriages end in divorce because one or both partners have been adulterous [26] . This belief in the longevity of marriage, while romantic, does not reflect reality. Similarly, many marriages do not result in procreation. Women who are barren are still allowed to marry and the hypocrisy of drawing parallels with gay couples is evident as Culley puts it, “Heterosexuals are not prohibited from marrying simply due to infertility or impotence....Therefore, the inability to conceive a child naturally, which is biologically linked to both partners, cannot be grounds for denying same-sex marriage." [27] For the law to use monogamy and procreation as reasons why heterosexual marriage needs to be protected, by denying same sex couples the chance to marry, is galling. The ideal Potter espouses does not reflect the reality of modern society. Once again the law seems to be blinded by a romantized vision of family life in Britain and this is to the detriment of the gay community.

Finally, the defensive rejection of same sex marriage is, I believe, unnecessary as heterosexual marriage does not need ‘protecting.’ If homosexual people were allowed to marry, I don’t believe that would have an impact on whether or not straight people choose to marry. To use an example from the past, when America finally relaxed racial segregation the fact that black children were allowed to go to school with their white peers did not mean that white children stopped going to school and getting an education. As Baroness Hale puts it, “No-one has yet explained how failing to recognise the relationships of people whose sexual orientation means that they are unable or strongly unwilling to marry is necessary for the purpose of protecting or encouraging the marriage of people who are quite capable of marrying if they wish to do so." [28] Even if it was proved that allowing gay people to marry would have a negative impact on marriage is that something the law should be concerned with? There is the issue of whether the law, in its paternalism, is too overbearing, thus denying people full agency to decide their own decisions about their family structures. The paternalistic approach to heterosexual marriage has, in my opinion, a vastly disillusioning effect on the gay population. As a gay respondent in a study put it, “There is no logical or moral reason why any legal forms of discrimination should exist. To treat same-sex couples differently is to enshrine prejudice in law and to send a message to society that queers are second-class citizens." [29] 

To conclude, by denying gay people marriage, a fundamental institution, the law strengthens discrimination against homosexuals merely to protect the cultural ideal of the traditional family that no longer exists. From the desexualisation of civil partnerships, an institution that seems more like a legal status with tax benefits than an immutable show of love, to the refusal to stretch the concept of marriage to everybody it would seem that in this area English Law is not quite as forward thinking as it would like to appear. After a critical analysis of the laws approach to same sex marriage, the Civil Partnership Act 2004 seems more a conciliatory prize. The approach that the law takes to same sex marriage is one that I would argue is tainted with homophobia and it is not until the law stops treating gay people as similar but different from heterosexuals that we might see true equality in the way same sex marriage is approached by the law.

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Bibliography

Journal Articles

Probert, R. ‘Hyde v Hyde: Defining or Defending Marriage' (2007) 19 Child and Family Law Quarterly, 322-336

Crompton, L. (2004), ‘Civil Partnership Bill 2004: The Illusion of Equality’ 

Hardin, R. ‘Dogs Are “Registered", People Shouldn’t Be’: (2006) Legal Consciousness and Lesbian and Gay Rights, Social & Legal Studies, 15: 511

Allen, B. ‘Same-Sex Marriage: A Conflict-of-laws Analysis for Oregon’, Willamette Law Review, (1996), 32,  619-26

Auchmuty, R. ‘What's so special about marriage? The impact of Wilkinson v Kitzinger’ Child & Family Law Quarterly, (2008) 20 (4). pp. 479-98

Culley, E. ‘Justified Discrimination? A Critical Analysis of the Decision in Wilkinson v Kitzinger [2007] 1 FLR 296' (2008) Reinvention: a Journal of Undergraduate Research, Volume 1, Issue 2,http://www2.warwick.ac.uk/go/reinventionjournal/issues/volume1issue2/Culley Date accessed 01/01/2010

Bamforth, N. ‘"The benefits of marriage in all but name?"Same-sex couples and the Civil Partnership Act 2004’, (2007) Child and Family Law Quarterly, 19 (2), 133-60

Kirby, R. ‘Equal Treatment of Same-Sex Couples in English Family Law?’ (2007), Family Law, May 2007, 412-13

Books

Cretney, S. (2006) Same Sex Relationships, from ‘Odious Crime’ to ‘Gay Marriage’, Oxford, Oxford University Press

Official Reports

Mrs Jacqui Smith, Official Report (HC) 12 October 2004, vol 425, col 174

Statistics