Destroying the Meaning of Marriage

This is a reproduction of an Article I had published in the March 3rd issue of The Catholic Herald

“Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others” are the first words in the law report of the 1866 case of Hyde v Hyde when a Court in England was asked to consider the legal validity of a potentially polygamous Mormon marriage, much the same conclusion was reached by the US Supreme Court in the 1878 case of Reynolds v USA which also involved polygamous Mormon marriage.

Today mainstream Mormons reject polygamy but the question raised in these 19^th Century cases “what is marriage ?” is once again a live issue with the announcement by the government that it is considering legalising same sex marriage and the unequivocal rejection of the idea by Archbishop Peter Smith spokesman for the English and Welsh Catholic Bishops.

As Archbishop Smith has pointed out is “Marriage does not belong to the State any more than it belongs to the Church. It is a fundamental human institution rooted in human nature itself.” and that is borne out by the legal history of marriage itself. The Marriage Act 1949 which regulates the registration of Marriage in England and Wales does not contain any definition of what marriage is because that would have been regarded as an unnecessary statement of the blindingly obvious marriage was not created by the 1949 Act or indeed any earlier statute because marriage has always existed. All that Parliament did in 1949 and earlier Acts was to set out the legal formalities for the registration of an already existing human institution; s1(1) of the Civil Partnership Act 2004 by contrast does define civil partnerships as “a relationship between two people of the same sex “ because the 2004 Act was creating an entirely new legal institution.

Proponents of Same Sex marriage, in particular the omnipresent Peter Tatchell repetitively compare the ban on same sex marriage to bans on inter-racial marriage in the American South or South African Apartheid but this is a simplistic and ignorant argument. In both Dixie and SA the idea was to prevent 'miscegenation' ie racial mixing and so the laws did not merely prevent inter-racial marriage but also made inter-racial sex and inter-racial cohabitation criminal offences.

In view of the accusations of ignorant bigotry which are routinely thrown at Christian organisations in contrast to scientific rationalism it is perhaps worth remembering that much of the justification for banning inter-racial marriage was inspired by Eugenics 'scientists' inspired by Darwin. The 1924 Racial Integrity Act in Virginia for example was passed in tandem with an Act for “the compulsory sterilization of persons deemed to be "feebleminded," including the "insane, idiotic, imbecile, or epileptic.”

More fundamentally segregationist laws did not change the nature of marriage as involving a man and a woman what they did was to specify on racial grounds which woman a man could or could not marry and vice versa. This was the reason why American miscegenation laws were eventually ended by the US Supreme Court in the 1969 case of Loving v Virginia. In Britain by contrast mixed-race marriage has never been illegal and indeed was never illegal throughout the British Empire. But regardless of whether mixed race marriage was legal or illegal the fundamental nature of marriage as involving a man and a woman was never in question and that is why the comparison of same-sex to mixed-race marriage is spurious.

So the Church therefore does have a legitimate right to object to suggestions that the fundamental human institution of marriage should be redefined by Parliament but it is also right to be concerned as to the implications for religious freedom of any redefinition of marriage or any attempt to allow civil partnerships to be celebrated in religious buildings and as part of any religious ceremony.

There are two proposals currently being considered by Government, firstly to allow same-sex civil partnerships to be celebrated in religious buildings in accordance with religious rites and secondly to redefine marriage to include same sex relationships. At present civil partnerships are, as their name implies, purely civil with no religious element involved though, as Archbishop Peter pointed out, there is nothing stopping any religious organisation giving a blessing or other religious ceremony separate from the formal legal “civil” ceremony. Quakers, Unitarians and Liberal Synagogues do this already but they have asked that they be allowed to hold the formal legal part of civil partnership at the same time and in the same premises as the religious ceremony. The Church of England and Catholic Church both oppose this suggestion

The problem with both these suggested changes is that in the present era of Human Rights and Anti-Discrimination laws once something is allowed it can become illegal to refuse to provide it

If Churches, Synagogues, Mosques etc are allowed to perform same sex marriages or civil partnerships they could easily find themselves being sued for “Discrimination” if they refuse to perform them. Any legislation would, no doubt, say that no church etc would be obliged to perform same-sex ceremonies but any such guarantees could be legally challenged and are not likely to be worth the paper they are written on.

In a recent case concerning Marriage Commissioners in Saskatchewan the Canadian Courts struck down provisions in their Marriage legislation that protected Marriage Commissioners who for reasons of conscience did not want to perform same-sex marriages.. In an Orwellian decision this recognition of freedom of conscience was declared to be contrary to the Canadian Charter of Rights and Fundamental Freedoms. The Charter is very similar to Britains Human Rights Act and therefore it is quite possible that the UK Courts would use the same logic as the Canadian Courts in order to strike down any conscience protections given to religious organisations that did not want to perform same-sex ceremonies. Arguments about religious freedom are not likely to carry much weight because in the 2009 case of Ladelle the Court of Appeal declared that religious objections to same-sex relationships were not a “core part” of Christian belief and so were not protected under the Human Rights Act.

I began this article by referring to the 19^th Century legal cases involving Mormon polygamy which were dealt with by the Courts on the basis of a robust understanding of marriage as the union of one man and one woman. In 2003 the Canadian Courts rejected this definition as discriminatory and in consequence same sex marriage was legalised in Canada. Today in British Columbia a fundamentalist Mormon Polygamist is defending himself on Bigamy charges by arguing that the Bigamy law is discriminatory. It is quite possible that he will win in which case Canada will have legalised, same sex marriage, polygamy, polyandry and polyamory. David Cameron has said that he regards marriage as fundamental to society but he and the government need to recognise once they open the Pandora’s box of trying to redefine marriage they will end up destroying it