The heart of it, of course, is that it defines the legal contract of 'marriage' in existing legislation to include couples of the same sex. Most of it is then taken up with tidying up possible areas of confusion around pension entitlements, around arrangements for contracting same-sex marriages overseas (e.g. whilst on service with the armed forces or in British consulates). It sets down in which buildings, and under what conditions, same-sex marriages can be registered — it excludes the Church of England and does not impose a requirement that religious organisations should conduct such marriages against their wishes.
[What is different about the C of E is that it is a state church and therefore, unlike other churches, cannot refuse to marry any couple so long as one of them lives in the parish. Without this clause, the local vicar would be obliged to marry same-sex couples. It might have been possible to create legislation that got round this difficulty, but whilst the C of E is established, it would be difficult.]
It includes a useful and long-overdue section that tidies up a gap in existing law concerning married people who undergo an officially-recognised sex change. Under existing law, if they were to remain married to their partner they have to go through an annulment and then re-recognition (presumably as civil partners).
The law is — or at least was until this Bill — clear that marriage is an exclusive relationship in a sexual sense. It's fine for me, as a married person, to have a close relationship with someone other than my partner, but if I have sex with them I have crossed a line and opened myself up to breach of the marriage contract. Having sexual relations outside a marriage relationship is — or was until this Bill — grounds for divorce. But for some reason I don't understand, it would not be grounds for divorce in a same-sex marriage.
I'm sure that, back in the past, this prohibition of adultery was all connected with the importance of knowing whose children were whose — which children were entitled to maintenance by whom and whose estate they were entitled to inherit. You couldn't allow married people to go off and produce children outside the marriage without taking full responsibility for the consequences, and certainly not if it was done without the full consent — or even knowledge — of their partner. It would represent a massive breach of trust, and be a recipe for social chaos in which the most vulnerable — the children — stood to suffer most. The law is weighted such that if a married woman has a baby the legal presumption is that it is a child of the marriage, and the husband therefore has a duty of care towards it. In an era when men were seen as the 'breadwinners' I guess that makes sense for the protection of the child — but of course it creates a sense of the married woman being her husband's 'possession', to be jealously guarded.
In these days of easy contraception the risks of illegitimate children are much less, of course, and the State has let irresponsible parents (usually fathers) off the hook by providing some support for the upkeep of the child of an unmarried mother through the benefit system.
According to this Bill, if a partner in a same-sex marriage commits adultery with a member of the opposite sex it is still grounds for divorce, but not if they take up a sexual relationship with someone of the same sex. It seems odd to me for same-sex marriages to be given this exemption. Where's the equality here? Surely marriage, whether same-sex or not, is (in terms of erotic one-to-one behaviour) "to the exclusion of all others". Why should the taking of erotic pleasure in a one-to-one relationship with someone outside the married relationship without the knowledge or permission of the married partner not be considered an equal breach of trust, and grounds for legal complaint?
The fact that two people of the same sex cannot between them conceive a child is not deemed to prevent them being married. I agree with that, and support same-sex marriage, because the purpose of erotic behaviour is not only for conceiving children. So why should an adulterous same-sex relationship (that equally cannot produce children) not be considered a breach of that marriage contract?
If a same-sex marriage is not exclusive in terms of sexual behaviour, in what sense is it a marriage? There is an inconsistency here. In this sense, the Bill does represent a 'watering-down' of marriage, even an undermining of it, because it is saying that a supposedly equal same-sex marriage is not required to 'exclude all others' in a sexual sense. If it denies a wronged partner redress in the courts, it's a legalisation of adultery, surely?
My argument is not from tradition, custom or culture. It is rooted in an understanding of the place of erotic love in human nature and human society, particularly from a Christian perspective. One of my primary reasons for supporting same-sex marriage — indeed, for believing that it is long overdue — is that I believe 'one-to-one erotic behaviour' is best expressed, and for the sake of a healthy society should be confined to, married relationships 'to the exclusion of all others'. Even if many people choose to form exclusive one-to-one sexual relationships without making a formal legal commitment, and if many people fail to live up to the ideal, the legal definition of marriage as being 'to the exclusion of all others' is still generally understood as the model. And since it clearly doesn't mean 'not having any relationships of any sort with anyone else', it clearly means 'exclusive sexual relationship'. In Britain we may go in for serial monogamy, but we generally frown on polygamy. I agree that marriage is not intrinsically heterosexual and that it is not exclusively about procreation, and I imagined that it is because they resented being excluded from this committed, sexually exclusive partnership model — marriage — that many gay and lesbian couples want to see this Bill succeed.
But I do believe that sexual relations are at the heart of the marriage model. They're being short-changed -- we all are. Marriage (whether homo- or hetereosexual) is the best model because of the nature of erotic love.
The purest form of love — what the Christians call 'agape' love — is totally selfless. Its only concern is the welfare of the other. At its extreme, it is 'love your enemies'. If it is done for selfish reasons it ceases to be 'pure love' in this sense.
Erotic love, however, is a different sort of love — although it does not exclude agape love (as some suggest). In fact, the two go very well together. Unlike 'agape' love, the giving of erotic pleasure typically involves the receiving of it, too. One-to-one erotic behaviour can therefore be a very powerful way of strengthening the bond between two people. In Christian terms I would argue that this, rather than the making of babies, is its primary purpose. The fact that erotic behaviour produces a personal erotic 'reward' is one of its great blessings, because it gives people who might otherwise (in the busyness of life) drift apart a motive to get 'up front and personal' and renew their relationship erotically. The sex drive can drive us together — it is a bonding drive.
The Bill, however, doesn't afford it any value or relevance -- it strikes out 'non-consummation' as grounds for annulment. This, and the exemption for same-sex adultery cuts directly across this purpose of marriage (see Marriage (Same-Sex Couples) Bill -- Schedule 4 Part 3, 'Divorce').
By constraining erotic urges within an exclusive committed relationship, the marriage model of relationship 'channels' sexual energy to hold couples together. By saying officially that the expression of that bonding drive outside the partnership need be no impediment to the relationship, the Bill is effectively saying that marriage has nothing to do with sexual relations at all. To be consistent, the Marriage Act needs to be amended to remove adultery or non-consummation as grounds for divorce/annulment in heterosexual marriages too, thereby separating legal partnerships from sexual behaviour altogether. Only then will it be 'Equal Love' — but will it be 'love' of the sort most people think this debate is about? Will it be 'marriage' as most people — including those (like me) who support same-sex marriage — understand it?
The fact that one-to-one erotic behaviour produces a personal erotic 'reward' is also its danger, of course. It can so easily become a selfish act. In its most distorted form it becomes the using of another person for sexual purposes. If one of the purposes of marriage is to channel people's sexual urges into forging enduring partnerships that can form strong building blocks for society, then the complementary purpose is that of protecting society from the dangers of abusive (that is, purely selfish and exploitative) sexual behaviour. I would say that indulging in sexual behaviour outside of a committed relationship (without the partner's knowledge or agreement) is at the least selfish behaviour, in breach of trust. To exempt partners in a same-sex marriage from this constraint is effectively to say 'it was never a marriage in the first place'.
As I have said, the actual erotic preferences of the couples involved are completely irrelevant to this. Society's laws only need to reach into that private domain where the protection of individuals (other partner or children) from abuse by one of the partners has become an issue.
So the Bill is effectively an adulterer's charter for some, and if it were consistent it would be an adulterer's charter for all. It effectively 'desexualises' marriage. It deals with the same-sex issue by running away from it. I didn't realise this, and I'm sure most people don't. Far from affirming the sexual nature of same-sex relationships, it denies the significance of erotic behaviour in human relationships altogether as irrelevant. That is a recipe for a lot of confusion, misunderstanding and hurt. It would be quite simple to correct this fundamental flaw : just remove the same-sex adultery exemption (Schedule 4, Part 3, 'Divorce'). Then we might have 'Equal Love'.
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