A Response on Marriage and Civil Partnerships
Thursday 17th May 2012Following reports of my interview, in Jamaica, with Martin Beckford of the Daily Telegraph, I have received a number of letters and emails relating to the views which I shared in that interview, including an open letter from students in the JCR of my beloved college, Selwyn, Cambridge. An open response follows....
Following reports of my interview, in Jamaica, with Martin Beckford of the Daily Telegraph, I have received a number of letters and emails relating to the views which I shared in that interview, including an open letter from students in the JCR of my beloved college, Selwyn, Cambridge.
Media reports of long interviews are inevitably selective, and the full transcript is available here for clarification: (http://www.archbishopofyork.org/articles.php/2338/archbishops-interview-with-the- daily-telegraph).
A number of letters endorsed the points I made in that interview. Others challenged my views, raising a number of points on which my arguments differ from theirs.
I am therefore writing a general open reply to all the issues raised in these letters.
Let me start by setting out the areas where I believe there is agreement.
First, there is no question about the equality of all human beings, “heterosexual” or “homosexual”. None of us is of greater value than anyone else in the eyes of the God who made us and loves us. ‘At the deepest ontological level, therefore, there is no such thing as “a” homosexual or “a” heterosexual; there are human beings, male and female, called to redeemed humanity in Christ, endowed with a complex variety of emotional potentialities and threatened by a complex variety of forms of alienation.’
Second, I have pastorally supported people in same sex relationships even before Civil Partnerships came into being. And it is important to note one aspect of the remarks I made to the Telegraph. The interview took place in Jamaica, a country where homosexual relationships are still criminal acts. It was in this context that I said same sex relationships must not be diminished, condemned, criticised, or patronised in any sort of way.
Some people have expressed surprise that for me it is another thing entirely to say that there is no difference between civil partnerships and marriage. Explaining that difference is not a matter of simple, knock-down arguments or slogans, so I will try to set out my case clearly.
II Civil partnerships in the United Kingdom
granted under the Civil Partnership Act 2004, give same-sex couples rights and responsibilities identical to marriage. Civil partners are entitled to the same property rights as married opposite-sex couples, the same exemption as married couples on inheritance tax, social security and pension benefits, and also the ability to get parental responsibility for a partner's children, as well as responsibility for reasonable maintenance of one's partner and their children, tenancy rights, full life insurance recognition, next of kin rights in hospitals, and others. There is a formal process for dissolving civil partnerships akin to divorce.
This similarity does not turn them into marriage. They are different from marriage. They are in every respect in ethical terms an honourable contract of a committed relationship. This difference does not imply that they lack protection in law, economics and social standing. To change the law and smooth out this difference on grounds of equality would force unjustified change on the rest of the nation. It is important for the understanding both of marriage and of civil partnership that the categories are not confused. The retention of the current understanding of marriage should not prevent gay and lesbian couples from being able to affirm and honour their relationship without being obliged to fit into another category.
In fact it could be argued that to create two kinds of marriage, as is proposed, Civil Marriage and Religious Marriage, creates a distinction and a new inequality within marriage. Hitherto, England and Wales have had a unified law of marriage based on a unified idea of what marriage is. This important legal bedrock is being discarded.
If the proposals currently before us come into effect, for the first time there will be two levels of marriage recognised within English Law, one open only to different sex couples entered into at a Religious Ceremony, the other open both to different and to same sex couples entered into at a Registry Office.
However the question for me is one of justice, and not equality. Justice is the primary category. It does not mean not treating everyone the same way but giving everyone what he or she needs or deserves: education to the young, home-care to the old, opportunity to the enterprising, protection to the threatened. Equality follows justice, and secures its consistent administration: not just some young people but all, not just some threatened people but all. A clear picture of the just order is what makes equality objective. Without it equality-claims are liable to be subjective and contradictory.
If it was a question of justice, what injustice would result from not turning Civil Partners into married couples? I submit, No injustice.
The virtue of the Civil Partnerships scheme lay in the attempt to treat the needs of gay and lesbian couples as what they are, not to bundle them into some other category.
Marriage is built around complementarity of the sexes, and therefore the Institution of Marriage is a support for stable families and societies.
Those Civil Partners who consider that their partnership is still inadequately recognised should give the Civil Partnership legislation time to establish itself and gain increasing public understanding.
It is a great mistake to use the Statute to give comfort and assurance. The Rule of Law exists to address injustices. The current difference between marriage and Civil Partnerships does not involve injustice, but, arguably, the proposed changes would, by creating two new varieties of marriage.
III The legal background (see Appendix):
Some have argued, in letters and emails to me, that the secular law has engaged through Acts of Parliament with the law of marriage on many occasions since 1753. I do not disagree. However Parliament has been concerned with matters of process and procedure, dealing with who may or may not enter into marriage, the preliminary authority and prior notice required for a marriage, the place and time of day of marriage ceremonies, the qualification of those who may solemnise or officiate at weddings, recognition of different procedures for religious and civil ceremonies, the registration of marriage and similar matters.
The definition of marriage upon which English law is based is drawn from the Book of Common Prayer, and most recently Canon B30, (which was approved by Parliament and received the Royal Assent on 5 May 1969 and thus became part of the Statue Law of England), of Holy Matrimony, which states that:
‘The Church of England affirms, according to our Lord’s teaching, that marriage is in its nature a union permanent and lifelong, for better or worse, till death do us part, of one man with one woman, to the exclusion of all others on either side, for the procreation and nurture of children, for the hallowing and right direction of the natural instincts and affections, and for the mutual society, help, and comfort which the one ought to have of the other, both in prosperity and adversity.”
No Act of Parliament touches upon a definition of marriage. In fact in the Act identifying the qualifications for marriage they completely overlooked gender and focused entirely on age and on ‘prohibited degrees.’
And even as late as 1973, in the Matrimonial Causes Act, that definition was also assumed.
It should be noted that the definition of marriage has in fact, until very recently, traditionally been part of International Law, and not a matter only for domestic national law. With the exception of a handful of countries, this continues to be the case, and a change in this definition would have wider implications than if it were just a question of choice made within this nation.
Other correspondents have mentioned the overturning of the ban on interracial marriage in South Africa. But this is a good example of how prior to that the Apartheid state had exceeded its rightful powers in banning such marriage in the first place. More recently the Chinese government asserted its authority to legislate on the number of children a couple may have. Such legislation, driven by ideological or economic pressures, has not generally been approved by more liberal democracies. It is not until very recently that governments have assumed the authority to redefine marriage as simply being between two persons, as Canada did in 2005. It is of course possible that the UK Parliament may choose to legislate in this way. If so this would indeed be a bold but a mistaken step. It is my belief that neither the State nor the Church, or any religious group, can change the essential nature of marriage.
English Law has always taken the essential nature of marriage as between a man and a woman as a ‘given’. Sir James Wilde, Judge Ordinary, said in his judgment in Hyde v Hyde and Woodmansee (1866) L.R.1P.D 130
“Marriage has been well said to be something more than a contract, either religious or civil, to be an Institution. It creates mutual rights and obligations, as all contracts do, but beyond that it confers a status. The position or status of “husband” and “wife” is a recognised one throughout Christendom. Marriage is defined as the voluntary union for life of one man and one woman, to the exclusion of all others”.
This continued to be the legal understanding, so that in 2004, Lord Millet made his judgement in the case of Ghaidan v Godin-Mendoza, stating that
“Marriage is the lawful union of a man and a woman. It is a legal relationship between persons of the opposite sex. A man’s spouse must be a woman; a woman’s spouse must be a man.”
Amongst the letters which challenged my conclusions, there were also many which agreed with the points I was making. One was from a gentleman who wrote to say that as a gay man who had been in a civil partnership since it was possible to have one, he felt ‘the hairs on the back of his neck bristle, thinking that dreadful things must have been said’ when he first saw the headlines about protests outside York Minster. However, he went on to say that, having read what I had actually said, he found himself agreeing with me. He added,
“I do believe that marriage is for a man and a woman and I personally feel no desire to emulate that.
I accept my relationship is different, and as long as I do not suffer from any form of discrimination legally, economically or socially I am happy. Unfortunately social full acceptance may take a while longer but we are in a better place now than we were a few short years ago. “
As I said earlier, it is important to giveCivil Partnerships time to become established and gain increasing public understanding. Those drawing up the new proposals appear to have done this in haste, and with little evidence of having listened to the experience of many since the 2004 legislation.
IV The social institution:
In arguing from the long history of marriage as a social institution I do not accept the criticism that I am simply arguing from tradition. And I am certainly not just arguing for ‘Christian marriage’.
As I said in the interview, ‘Marriage is marriage is marriage.’ We know of no time in history before men and women came together in marriage. The reason for this lies in the difference between, and complementary nature of, the two sexes. The coming together of male and female, of two people who are radically ‘other’, is unique to marriage, and marriage is unique to it. This is not in any way to decry other forms of relationships, only to say that they are not the same.
In the Daily Telegraph Interview, in referring to the launch of the Church of England’s Children’s Society Report on Childhood, Martin Beckford asked me about my views on family, and I spoke in support of different family structures where children are brought up. I did so however from the point of view of the needs of children, not the supposed human rights of potential adoptive parents.
As I said to Martin Beckford of the Daily Telegraph,
“My view, as a Parish Priest, was not to stigmatise single parents, my job was to support them in looking after their children. We had an extended family relationship with them. My view, as a Parish Priest, was not to look at cohabiting parents and say your relationship is a second-class sort of marriage. My job was to support them as they raised their children. My view, as a Parish Priest, was that for couples in same-sex relationships, I should support them and their children. “Sentamu, don’t diminish their relationships, support them.”
And in my village in Uganda, when I was growing up, there were two men living together in a house a few doors away from us. Everyone said they were in “a same-sex relationship”. My father was clear that we should treat them with the same respect as others and, as a Reader in the Church, he always encouraged them to come to church and to all church functions.
I believe that marriage is the bedrock of society. It is a gift from God in Creation. It has a public element, a public commitment made to one another and to the community. For richer, for poorer, in sickness and in health. Already in marriage, there are the ingredients of stability that children are looking for.
What we should not do is begin to create comparisons of the different family structures because I think that it is a dead end conversation.”
I am under no illusion that growing up in a family with both a father and a mother is always a recipe for flourishing. However it is a fact of life that children are born out of the physical relationship of a mother and a father, and that this relationship, with the unique genetic imprint which it conveys, is a foundational ingredient of the child’s identity.
We are, in part, what our parents have made us. However the inheritance from our biological parents does not stop there. Inevitably the nature of their relationship with each other – and with us as their children - helps to define who we are.
A number of arguments have tried to define marriage today as “an expression of love between two people”.
Special as this mutual expression of love between two people may be, I do not consider that this amounts to marriage. Mutual loving commitment alone does not capture the meaning of this particular defining relationship, most commonly recognised as a suitable context for the nurture, development, and flourishing of children.
I want to support families of all kinds in the care and support of children, but I also want to affirm marriage as an essential norm. We owe it to one another, and especially to our children, not only to support all who have the responsibility for their care, but also to cherish the stability offered to individuals, to couples, and to society as a whole by the Institution of Marriage.
Marriage, as currently understood as the union of a man and a woman, fulfils a key social function. It helps define who we are, what we value and how we build for our future. This is why it is spoken of as essential to our social fabric, as the bedrock of a hospitable and diverse society. Marriage is a lifelong commitment, and, regardless of steps taken relatively recently to recognise the realities of divorce and remarriage, the Church of England has at no time qualified its understanding of the ideal of permanence in marriage.
Innovation in relation to divorce/remarriage was not simply a question of accommodating people with special needs, but of thinking through how they could relate to the Institution of Marriage as we have understood it.
In a predominantly individualistic society, talk of social norms is not always well understood. The idea of a norm is often taken to be oppressive to those who do not, or cannot, share it. True, norms can be applied oppressively and we must strive against that. But if it becomes impossible to say how a good society needs most of its members to live, there is a much greater oppression waiting in the wings – the oppression which prevents us saying anything about a good society at all.
We all know the expression “the exception proves (that is, tests) the rule”. We are in danger of becoming such an atomised and individualistic society that every exception is assumed to destroy the rule, and that leaves us unable to talk about the common good at all.
V Valuing difference:
Some people did argue that the proposal for same-sex marriage would lead to “no change in the meaning or significance of any heterosexual marriage”.
Of course, if someone should ask, “How will my marriage be affected if couples of the same sex can marry?” the answer is, Not at all. But let me put the question another way: what sort of a society would we have if we came to see all family relationships primarily in terms of equal rights?
The family is designed to meet the different needs of its different members in different ways. It is the model of the just society that responds intelligently to differences rather than treating everyone the same.
Whilst I am a strong supporter of justice and equality of opportunity for all people, I want to insist that with those rights go our responsibilities one to another. These are enshrined, I believe, in our legal definition of marriage. Would we be a better society if we made marriage simply a private contract between two individuals with no wider implications of kinship and family? I do not believe that we would. The issue is not the implication for any existing marriage but the implication for people in future when the social meaning of marriage has been changed and, in my view, diminished.
Others have drawn the parallel between same-sex marriage and interracial marriage.
As I mention earlier, the nature of marriage expressed the complementary nature of the sexes.
Trying to draw the parallel between the proposed same-sex marriage and inter-racial marriage ignores the fact that there is more than one paradigm of equality. For me, racial equality rests on the doctrine that there is only one race – the human race – and any difference of treatment on ethnic grounds is therefore unjustifiable. But in the long history of feminism, for example, we find another view based on the complementarity of men and women. In short, should there be equality between the sexes because a woman can do anything a man can do, or because a good society needs the different perspectives of women and men equally?
As far back as Mary Wolstencraft we find that second view pressed very firmly. We see it today in the welcome insistence that all-male committees, clubs and so on are not fit for purpose. Unless one believes that every difference between the sexes is a mere social construct, the question of equality between the sexes cannot be completely addressed by the paradigm of racial equality. And on those grounds, defining marriage as between a man and a woman is not discriminatory against same-sex couples. What I am pressing for is a kind of social pluralism that does not degenerate into a fancy-free individualism.
VI A unique mystery:
The Archbishop of Canterbury, Dr Rowan Williams, in his recent speech celebrating the Universal Declaration of Human Rights framed those rights within the context of mutuality amongst human beings, and of what it is to be together in society.
Individual human rights find their place within a community of persons where we owe one another care and respect. For Archbishop Rowan human rights have strong spiritual roots:
‘It is essential that, in an age that is often simultaneously sentimental, utilitarian and impatient, we do not allow the language of rights to wander too far from its roots in an acknowledgement of the sacred.’
Marriage provides a particular context for acknowledging the sacred, in relation to our common self understanding both as human beings and as human beings designed to be in relationship.
The Book of Common Prayer Marriage Service cites St Paul’s analogy of marriage symbolizing the relationship between Christ and his church. The Apostle Paul introduces this describing how marriage involves a man and a woman each leaving father and mother and being joined together as ‘one flesh’. He says ‘This is a great mystery’. It is from this mystery, the union of a man and a woman, one way or another, that each of us derives our very existence. That is why for me marriage touches on the sacred, whether this is understood in religious terms or not.
Up to now, the only reason I have been given for a desire to redefine marriage to embrace same-sex relationships is that it meets an emotional need of some same-sex couples (only some, as I have forcefully been led to believe some reject the concept of marriage altogether). If the rights of Civil Partners are met differently in law to those of married couples, there is no discrimination in law, and if Civil Partnerships are seen as somehow “second class” that is a social attitude which will change and cannot, in any case, be turned around by redefining the law of marriage. It may even make social attitudes go in reverse gear. So I submit that to use the law to redefine marriage when there is no legal inequity involved is a misuse of the Statute. It must never be used to give comfort or reassurance but to remedy an injustice.
The outstanding judge of the past quarter-century Lord Bingham, makes clear in his book, The Rule of Law, that this is not an arid legal doctrine but is the foundation of a fair and just society, a guarantee of responsible government, and an important contribution to economic growth, as well as offering the best means yet devised for securing peace and co-operation.
For me, Justice is only possible when Law, Religion and Morals are inter-mingled.
My position derives from Lord Denning’s famous comment: “Without religion, no morality; without morality, no law."
Archbishop William Temple, one of my predecessors, said that, “It is axiomatic that love should be the predominant Christian impulse and that the primary form of love in social organisation is Justice.”
This is summed up in Luke’s Gospel, Chapter 10, when a lawyer asked Jesus of Nazareth, “Teacher, what must I do to inherit eternal life?” He said to him, “What is written in the law? What do you read there?”
He answered, “You shall love the Lord your God with all your heart, and with all your soul, and with all your strength, and with all your mind; and your neighbour as yourself.” And he said to him, “You have given the right answer; do this, and you will live.”
This precept – love towards God and love towards neighbour – is a precept of religion. Nevertheless in many affairs of life, love can only find expression through justice, which is God-like.
Religion, law and morality need to be brought together under the great tent of love.
I have made this lengthy response because much of the correspondence I have received has been thoughtful and measured and merited a considered treatment. I hope that in doing so, I have demonstrated that my arguments stem from my desire to see a flourishing society which has not been reduced to mere individualism and which sees the rights and needs of this generation in the context of the well-being of future generations.
I will be the first to accept that homosexual people have suffered discrimination and sometimes worse through the decades and that the churches have, at times, been complicit in this. There is much penance to be done before we can look our homosexual brothers and sisters in the eye. But that baleful history does not diminish the need to speak the truth in love.
I firmly believe that redefining marriage to embrace same-sex relationships would mean diminishing the meaning of marriage for most people with very little if anything gained for homosexual people. If I am right, in the long term we would all be losers.
I write as a seeker after truth and understanding, so please be patient with me, because God has not finished with me yet. And I will try to be patient with the many of you who wrote to me.
I am a follower of Jesus Christ, still seeking understanding.
Law and procedure
A civil partnership is a relationship between two people of the same sex, formed when they register as civil partners of each other, which ends only on death, dissolution or annulment.
Formation and registration
Under the standard procedure, before registration, each party will usually have to give notice to the appropriate authority. Each party must have resided in the UK jurisdiction in which they intend to register, (England and Wales or Northern Ireland) for at least seven days immediately preceding the giving of notice and there will, in most cases, be a fifteen-day waiting period after notice is given. A civil partnership in Wales (Welsh: Partneriaeth Sifil) may be conducted either in English or, provided that both registering parties, the registrar and witnesses are able to understand and write in the Welsh language, in Welsh. Civil Partnership documents issued in Wales (regardless of the registering language) follow a standardised bilingual English and Welsh format.
Each party to the civil partnership must be of the same sex and be at least 16 years of age. Anyone below 18 years of age will usually need parental consent, except in Scotland where such consent is not required. Furthermore, the parties to the proposed partnership must not be within the prohibited degrees of relationship specified in part 1 of schedule 1, paragraphs 1 and 2 of the Act (paragraph 3 was not brought into force following a ruling from the European Court of Human Rights against similar provisions for marriage). Any party who is already in a marriage or a civil partnership is ineligible to register.
 The St Andrew’s Day Statement: An examination of the Theological Principles affecting the Homosexuality Debate, St Andrew’s Day 1995, p.5
 Ghaidan v Godin-Mendoza  UKHL 30.
 The Changing Law (1953)Baron Alfred Denning