Equal Marriage?


Media coverage of the equal marriage debate was once boring. It’s now moved beyond even that. Watching  the minister for women and equalities Maria Miller present the Government’s response to the public consultation to Parliament, I couldn’t help but agree with journalist Suzanne Moore that the whole thing was ‘too damn straight’. For months the debate has been presented by politicians and the mainstream media as one about freedom; be that sexual vs. religious, private vs. public, liberal vs. conservative. Such debates are tired, and exaggerate small differences of opinion.

It seems obvious that religious institutions need to modernise. This is acknowledged by religious people, just not the conservative leadership. At the very least they should be given the option, though in the current proposals for the Church of England and the Church in Wales this has been controversially precluded. Regardless, to only highlight religious conservatism is to do a disservice to faith. Anyone who was lucky enough to see ‘Call Me Kuchu’, the devastating documentary about Ugandan gay rights activist David Kato, will be aware that the Bible offers more radically anti-essentialist views on identity than are held by any of the pro-science rationalist-atheists. For, as Bishop Christopher Ssenyonjo repeated in the film, Paul wrote in Galatians 3:28 that ‘There is neither Jew nor Greek, slave nor free, male nor female, for you are all one in Christ Jesus.’

Indeed, arguments from the liberal position are framed in annoyingly reductive terms. Take Nick Clegg, who cited the principle of anti-discrimination in arguing that ‘love is the same’; or the Guardian editorial, whose appeal to extend ‘the ordinary language of love to minorities’ patronises to the point of revulsion. In one stroke, these arguments depoliticise the legacy of resistance by queer radicals that goes back generations. Jean Genet would be turning in his grave.

To get around this, it makes more strategic sense to concentrate on the minutiae of the proposed reform. Miller told the House of Commons that gay couples will be able to opt for either marriage or civil partnership – in spite of opposition in the proposal to the idea of extending civil partnerships to straight couples. What is equal about that? I know many straight couples who, uncomfortable with marriage’s patriarchal heritage, would prefer their relationship to be labelled a ‘partnership’.

Then there are the legal arguments. First up is the standard for proof of adultery, which has been included in the proposals as a cause for divorce. Currently this requires ‘at least partial penetration of the female by the male’. So far, so straight. But as academics Sarah Beresford and Caroline Falkus have argued, this is the only workable solution given that the definitional validity of ‘adultery’ requires heterosexual parameters. The Government requested a new definition, but alternatives (such as the Canadian ‘breach of trust’) were deemed overly subjective by the Family Law Bar Association, amongst others. Just as it was omitted by New Labour from the civil partnership legislation, the Coalition proposal accepts that the definition of adultery must remain the same. The effect of this is that a person in a same-sex marriage can only commit adultery with a person of the opposite sex. As is currently the case in civil partnership, gay sex can only be cited as ‘unreasonable behaviour’. Equality hardly springs to mind.

The same difficulties arise in relation to non-consummation, hence its omission as a cause for divorce. The current definition relies on the fact of ‘ordinary and complete’ heterosexual penetration and ‘emission’. According to preference, many gay couples never engage in penetrative sex, and so to rely on consummation would have been ridiculous. Is it even linguistically possible to invert a ‘betrayal of trust’?

Out of context, this could be framed as the proposal’s most progressive provision. In a parallel world, the decoupling of procreative sex and marriage would signal an attempt to reclaim the institution from the capitalist economy. (Bear with me.) In his outstanding History of Sexuality, French philosopher Michel Foucault situates the term ‘homosexual’ firmly within its historical context. His analysis suggests that it came into use at a time when Victorian Britain was going through an expansive period of industrialisation – which required a massively burgeoning population.

In light of this, it would take some coincidence to explain the simultaneous attempts to write off as ‘unnatural’ those sexual practices whose aim was not to procreate. Acknowledging today the legitimacy of such practices would go some way to renouncing the insidious policy of yesteryear. But that isn’t what’s happening here. Indeed you could argue quite the opposite. Remember that what is proposed is equal marriage – this provision would only signal progress if it were extended, and applied equally to straight marriages. Only this would put an end to procreative privilege. Unsurprisingly, this didn’t feature on Miller’s agenda.

To conclude I’ll leave you with one last example of how this issue blurs political divides. Penny Mordaunt, a Conservative back-bencher, made a telling – if unintentional – contribution to the Commons debate. Reminding us of the 88- and 90-year-old ‘spinster sisters’ Joyce and Sybil Burden (who argued unsuccessfully for the right to be considered in a civil partnership in order to guarantee that the longest surviving sister could retain their family home), Mordaunt offered her colleagues assurances that in light of the proposal, and as an unmarried heterosexual woman, she would ‘certainly consider the institution’. The question is whether she should have to. As things stand she is given financial incentive – which in the case of inheritance tax proved vital for the Burden sisters. Is there any equality here?

The current proposal ignores the issue. If it is equality that we are pursuing then arguably the most equal thing would be to put an end to civil marriage, and acknowledge instead the value of all loving relationships. Paradoxically, banned marriage might prove to be the most equal marriage of all.


Chris Dietz

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