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26 February 2014
Equal marriage: is it a done deal or is everything still to play for? Barrister Anya Palmer gives her view.
So, the Government is now consulting on a proposal to redefine civil marriage so that same sex couples are no longer excluded.
Depending on who you believe, this could either be a done deal or everything could still be to play for. Equalities Minister Lynne Featherstone told The Independent last week that “the essential question is not whether we are going to introduce same-sex civil marriage but how” and went on to give a “cast-iron guarantee” that civil marriage would be legal by 2015. Meanwhile, over at theDaily Mail Work and Pensions Secretary Iain Duncan-Smith was assuring readers that the Government will allow a free vote on this issue.
With opinion polls divided, a free vote doesn’t sound like a done deal to me, so I thought I’d better “have my say” and fill out the consultation online. You can have your say online here.
Personally, I worked out where I stand on this a long time ago. I’m never going to be a poster girl for the Equal Love campaign. I don’t want to get married. I don’t believe in it. (Luckily my partner of 15 years agrees.) But I do want to not get married from a position of choice, like plenty of heterosexual couples I know. And I do support the right of those who do wish to get married to do so regardless of gender. It’s a simple matter of equality.
Civil partnerships were a step in the right direction, although query whether they were a necessary step by the time they were enacted – in 2005, the same year as they came into force here, Spain simply lifted the ban on same sex couples entering a civil marriage. And guess what? The sky did not fall in. In the little Spanish town where I spend time on holiday, I have seen villagers dressed in their finest heading through the streets to the town hall for a gay wedding. Except for them it was just a wedding. Surely if Catholic Spain can adjust to this, we can too?
So I wasn’t expecting the consultation to be difficult, but some of the questions are somewhat difficult to answer. For example, the proposal is not only not to force any religion to marry same sex couples (I agree) but also not to allowany religion to marry same sex couples even if the religion wants to (I strongly disagree).
The only question asked is this: “The Government does not propose to open up religious marriage to same sex couples. Do you agree or disagree?” Answer (I had to use a comments box at the end for this): “This is not a matter for the Government. The Government should neither force any religion to marry same sex couples nor prevent any religion from doing so.” Why is it wrong for the Government to dictate to Catholics but okay to dictate to the Quakers?
Next, the question of what is to happen to civil partnerships. The proposal is to keep them for same sex couples but not extend them to heterosexuals “because we have been unable to identify a need for this”. Really? Allow me to suggest one. The principle that the law should treat everyone equally? And some heterosexual couples would prefer partnership to marriage. Indeed, Equal Love have a test case involving four heterosexual couples who want a civil partnership. So why not keep them but extend them to everyone?.
There are other issues, such as what will constitute grounds for divorce between same sex couples, which the consultation ducks altogether. For example, how do you define non-consummation in the case of a lesbian or gay couple? (See the Law and Sexuality blog by Chris Ashford for more on this).
Those concerns aside, if implemented this proposal will be a major step towards equality for lesbians, gay men, bisexuals and (especially so) transsexuals, so I urge you to respond to the consultation and give the proposal your support.
Maybe it is a done deal, but I’d rather we got there by popular agreement all the same.
Anya Palmer is a barrister at Old Square Chambers. She Tweets as @anyapalmer.