What happens when we redefine marriage?

If same-sex marriage becomes law in Britain, the law will demand that it be respected in word and in deed. Peter Smith considers where the same-sex marriage debate lies in Britain today. There are foreseen consequences of redefinition: the severe hindrance of the freedom of expression and the reasonable manifestation of religious belief, and a profound effect on the provision of fundamental public services. Back in January I set out David Cameron’s proposals for creating same-sex marriage, which he announced at the British Conservative Party’s annual Conference in October 2011, alongside some arguments against those plans. A year later, the controversy has moved on. There are now two parallel movements for same-sex marriage in the UK, a result of the devolution of powers to the Scottish Government. A consultation in Scotland ended in December 2011 and its results were snuck out shortly before Olympic fever dominated the Isles. It is notable how divisive same-sex marriage has been north of Hadrian’s Wall: an ‘unprecedented’ 77,508 responses were received in the ‘largest consultation exercise of its type ever held in Scotland’. Over 33,000 responses were submitted via forms amended by organisations with an interest in the two core proposals of same-sex civil marriage and religious civil partnerships. Opponents of same-sex marriage pipped supporters 52:48, but more than two thirds opposed religious civil partnerships. Nonetheless, the Scottish Government intends on continuing to legalise both relationships, and the Catholic Church – numerically and financially the largest single supporter of traditional marriage – has since ceased dialogue with Edinburgh on the matter. Down south, we are a step behind. The Home Office has also consulted on its plans to create such relationships in England and Wales, but they are effectively limited to same-sex marriages and not religious civil partnerships. After months of campaigning, two umbrella organisations broadly covered the diverse faiths, standpoints and interest groups in the opposing camps. In favour of same-sex marriage stands the Coalition for Equal Marriage, and its slick media campaign, Out4Marriage.org, which publishes clips of well-known proponents of gay marriage such as Boris Johnson and Hugh Grant ‘coming out’ in support of the move. Against liberalisation is the Coalition for Marriage, based out of the Christian Institute’s offices in Newcastle, which has mobilised tens of thousands of Christians to sign petitions and dominate the postbags of Members of Parliament. The Home Office consultation ended in June, and the results are unlikely to be known this calendar year. It is safe to say that there have been a considerable number of responses from both sides (although, as in Scotland, many will be standard pro-forma that campaign groups have handed out and emailed to supporters). Polls favouring both positions have been published. If, following the publication of the consultation document, the Government in Westminster puts legislation before Parliament in the new year, it is likely to be passed by the second anniversary of Cameron’s speech in 2013. But will that legislation be tabled? Opening Pandora’s box The best hope for opponents of same-sex marriage in England is for the Government to conclude it is too difficult to pass coherent and stable legislation that creates such marriages in the narrow circumstances so far envisaged. Social conservatives should not be too hopeful that such sense will prevail: Nick Clegg, the Deputy Prime Minister, gave a glimpse of the liberal class’s mindset when his staff trailed a speech in which he described supporters of traditional marriage as “bigots” – a slur he was rapidly forced to retract. As an example of the radical legal consequences of redefining marriage, the Coalition for Marriage has recently released a précis of a legal opinion by Aidan O’Neil QC, an expert in equality and discrimination law who practises from the same barristers’ chambers as Tony Blair’s wife, Cherie Booth. O’Neil was instructed to consider the implications for religious conscience and religious liberty arising from redefining marriage in England and Wales, and he considers the interplay between the Equality Act 2010 (including the Public Sector Equality Duty (PSEQ)), the European Convention on Human Rights, and case law on point. The PSEQ compels public authorities – including state schools, councils and the National Health Service – to “have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited...” when exercising their public functions. This includes the obligation to “tackle prejudice” and “promote understanding” between homosexual and heterosexual people. It is a far-reaching obligation on an enormous range of bodies and organisations, and it reduces substantially the lawful opportunities for supporters of traditional marriage to explain – let alone mention – their views. The Coalition for Marriage asked O’Neil to consider some hypothetical situations where religiously-minded people could find themselves in difficulties – and potentially fired from their jobs. Here are elaborations of some of his examples (the précis contains more), which focus on practical positions that readers of MercatorNet might find themselves in, should the prohibition on same-sex marriage be removed. (For brevity, the precise legal reasoning is omitted. What follows is a characterisation of the legal positions, which are necessarily latent or untested propositions.) The chaplain A hospital chaplain is also a local Church of England vicar. Suppose he preaches, at a private wedding service in his church, that marriage is between only one man and one woman. If his hospital employers were to hear of this action, they could take into account his conduct outside of the workplace when determining whether the chaplain was acting in accordance with the requirements of his hospital work and the ethos of the hospital. This is true for any chaplain employed with the public sector (e.g. within a university or the Armed Forces) who, in all likelihood, would have a duty to accept only that marriage could be between two people of the same sex, and that any contrary restrictive view would lead to their lawful dismissal as this view would be ‘un-ethical’, ie, against the prevailing ethos. The teacher A teacher is told by her head that she must use in class a book recommended by the local council and a gay advocacy charity. This book is about a man who falls in love with a prince and marries him. If the teacher asked to opt out of using the book on the grounds of conscientious objection, she would be refusing to obey the otherwise lawful instructions of her employers, thus constituting grounds for her dismissal. Moreover, it would make no difference if the school was a faith school or any type of school with a religious ethos or none. The child A child says in a school assembly that he thinks marriage is only between a man and a woman, on religious grounds. The assembly theme is on marriage and same-sex marriage is discussed. The child is subsequently bullied but the school takes no action. Because the school is under a duty to teach about marriage, and because marriage would mean same-sex marriage, a school which taught marriage equality (same-sex and opposite-sex marriages are the same) would not be discriminating against the child’s religious views. Furthermore, the school is potentially under a duty to ensure that the curriculum it teaches is delivered in a way that discourages and even eliminates the attitudes held by its pupils that involve sexual orientation. This potentially implies that it may brook no dissent from the redefinition. The parents Concerned parents learn that their school is planning a gay and lesbian history month, including lessons on ‘the campaign for marriage equality’. The parents insist that they have the right to withdraw their child from these history lessons. In fact, even if the school were a faith school teaching a subject in a manner contrary to the orthodox teachings of that faith, the parents would be completely unable to withdraw their child from these lessons, and the European Convention would not facilitate it. The foster couple Couples who apply to become foster carers and, during the interview process, let it be known that they could not support same-sex marriage, could be barred by a local authority or council from continuing with their application. The local authority is under an obligation to investigate the views of potential foster parents, and to consider the extent to which those views might influence and affect the behaviour and treatment of a child in their care. As a public authority, the council is under an obligation to safeguard and promote the welfare of looked-after children and this could be construed to include the prevention of exposure to an environment that is potentially exclusive of same-sex marriage. The crucial lesson of civil partnerships It is worth noting again the analogy between same-sex marriage and civil partnerships in England and Wales. When the Civil Partnerships Act was winding its way through Parliament in 2003 and 2004, Tony Blair promised that no religions would be compelled to carry out partnerships. In fact, religious readings, music or symbols were prohibited from the partnership ceremony. However, with only cursory scrutiny by Parliament, this ban was lifted in December 2011. This substantial change in civil partnership policy demonstrates that religious leaders should be very wary of accepting any ‘red line’ promises from ministers (even the Prime Minister) as a way of ameliorating opposition to the current proposals. In the current proposals, there will be a blanket ban on religious ceremonies in England and Wales. This is effectively a religious exemption and means thatchurches and ministers cannot host or celebrate same-sex marriages. However, the O’Neill opinion suggests there is would be a strong case that a blanket ban would be overturned by European human rights law. The material provision is Article 12 of the European Convention, which establishes a right for two individuals to marry: “men and women of marriageable age have the right to marry and found a family...” O’Neil raises the spectre of a fundamental reinterpretation of this Article, from the right of one man and one woman to marry, to same-sex couples, if redefinition occurs in English law. The consequence of this would be to open up other legal avenues, like human rights law, to support same-sex marriage. This could spell the end of the religious exemption. Even if churches were allowed to conduct same-sex marriages, it would be mistaken to think that a happy settlement could be reached whereby those vicars who accepted it would be free to do so, whilst supporters of traditional marriage would be free not to. Because of the established identity of the Church of England, granting the Church a unique and privileged place amongst religions in England, once any vicar allows same-sex marriages it becomes untenable in law for the whole Church not to participate. Thus O’Neil concludes: “Churches might indeed better protect themselves against the possibility of any such litigation by deciding not to provide marriage services at all, since there could be no complaint then of discrimination in their provision of services as between same sex and opposite sex couples. “And, in principle, the Church of England might be better protected under any such claim if it were disestablished in the sense that its clergy were no longer placed under formal legal obligations by the general law to solemnise the marriages of all and any person otherwise eligible to marry under the general law...” It isn’t too late, Mr Cameron Already, MPs are queuing up to remove the hypothetical ban on same-sex marriages in religious places, and Ed Milliband, the leader of the opposition Labour Party, appears to have outflanked Cameron in the latter’s rush to social liberalism. If same-sex legislation is pushed into the House of Commons, David Cameron will likely see a back-bench rebellion from his own MPs on the right of the Party, who are vociferously opposed to the measures. He knows that many Tory MPs hold seats where the UK Independence Party and the Liberal Democrats cannot oust the incumbent Conservatives in a fair fight, but they can succeed if the Tory vote is split (over Europe, for instance) or because Conservative voters simply absent themselves on election day because they are angry or disappointed at the Party leadership. Gay marriage is such an issue. In any event, Cameron will be left in the embarrassing position of relying on Liberal Democrat and Labour support for a majority to be secured (particularly as he is likely to give a free vote), and he will see the Parliamentary Conservative Party split cleanly on this social issue, conservative/liberal, when unity is needed to push through controversial healthcare reforms. Given the political difficulties of creating same-sex marriage and the legal consequences of doing so, it would suit him well to put the plans back on the shelf and move on to getting Britain out of its slump and recession.

Maybe ‘I do’

Unless we celebrate marriage as the best environment for raising children, many of them will face a lifetime of poverty.

The Brookings Institution economist Isabel Sawhill wrote this year that if individuals do just three things – finish high school, work full-time and marry before they have children - their chances of being poor drop from 15 percent to two percent.

The respected scholar of child poverty went on the say that “unless the media, parents and other influential leaders celebrate marriage as the best environment for raising children, the new trend – bringing up baby alone – may be irreversible.”

Sawhill is not alone in her observations.

Across the Atlantic, the UK Centre for Social Justice concluded in its report, Breakthrough Britain, that the fabric of society was crumbling, leaving at its margins an underclass, where life is characterised by dependency, addiction, debt and family breakdown. It is an underclass where a child born into poverty today is more likely to remain in poverty than any time since the late 1960s. The Centre identified five key paths to poverty: family breakdown, serious personal debt, drug and alcohol addiction, failed education, worklessness and dependency.

In Australia, demographers at Monash University were some of the first in the Western world to observe a growing gap between the married educated, employed and well-off and those who are less educated, in marginal or no employment, and are unpartnered. It is a trend that has since been recognised in the US, the UK and elsewhere.

Hundreds of social science studies across the Western world now point to one incontrovertible conclusion: that the incidence of family breakdown and unpartnered parenthood is having a significant impact, especially on children, but also on adults and society.

The studies report problematic outcomes for the health, education and well-being of the young people affected by the changes. Where children experience more than one family transition, the risks compound.

This is not to say that all the effects apply to each child whose parents’ divorce, or who is raised by a single parent. There is no way to predict how any particular child will be affected, nor to what extent. But it is clear that there are widespread ramifications for this cohort of children as a whole.

Nor is it to suggest that many single parents are not doing a good job, often in very difficult circumstances.

Renowned sociologist Professor Andrew Cherlin notes that even if a minority of the affected children have their lives altered, it is still a lot of children.

Increasingly, social scientists argue that we must do something about the issue.

One the world’s leading marital scholars, Professor Paul Amato, concludes his survey of the research that “studies consistently indicate that children raised by two happily and continuously married parents have the best chance of developing into competent and successful adults.”

Professor Amato adds: “Because we all have an interest in the well-being of children, it is reasonable for social institutions (such as the state) to attempt to increase the proportion of children raised by married parents with satisfying and stable marriages.”

The alternative is to treat the negative consequences as the unavoidable flotsam of modern relations. This is a counsel of despair.

In my book, Maybe ‘I do’ – Modern marriage and the pursuit of happiness, I have drawn from hundreds of studies to chart the impact of family structure on the health, happiness and well-being of adults, children and society.

The cultural and legal changes that have facilitated the trends are discussed, and the impact across the western world charted. I also examine the policy responses to date, before proposing a number of directions.

Four goals are identified. First, nations should have an explicit marriage and family policy. Second, they should seek to maintain at least a replacement birth-rate. Third, national policy should proclaim the ideal of marital permanence and affirm marriage as the optimal environment for the raising of children. Finally, the policy should value family stability and reinforce personal and inter-generational responsibility.

A number of specific policy suggestions to support marriage are proposed. First, better education about relationships should start in schools. Most schools have some form of sex education, but it should be augmented by an ongoing program of relationship education.

Second, the Labour MP Frank Field recently proposed in the UK that there should be more education about parenting for young people. He had observed that an increasing number of youngsters do not have a workable model of positive family life.

Third, pre-marriage education should be expanded. Currently, only a minority of couples participate in such programs, but those most in need often miss out.

Fourth, new parenthood is often a stressful time. There is a need to raise knowledge about parenting skills, something which the UK Prime Minister, David Cameron, has responded to with an education voucher for all new parents.

Fifth, many people enter new relationships when previous ones break down. Often this involves the formation of stepfamilies. These complex new arrangements involve many tensions for both parents and children. More assistance is required to prevent these relationships breaking down at an even higher rate than original marriages.

There is also a need for greater research into which programs provide the best assistance in preventing marital dysfunction and supporting the widespread aspiration that most people have for a happy and stable marriage.

Finally, many people later regret their divorce and wish that something more could have been done to save their marriage. The provision of reconciliation services was envisaged when no-fault divorce was introduced, but this has been abandoned largely. While maintaining the right to divorce, we could do more to allow those couples who so wish to pursue a reconciliation of their marital differences.

None of these proposals, which are outlined in detail, are remarkable, but taken together could help to address a trend that increasingly worries many social scientists and policy makers.

While policy makers can encourage marital stability, there is a limited impact that they can have on the culture. For this reason, the book concludes by examining those factors which social scientists observe are likely to assist individuals to achieve their aspiration for a healthy and happy marriage, and those that detract from this goal.