British Conservatives and same-sex marriage

It is not the time -- or the place -- for the Conservative Party to legislate for same-sex marriage
Peter Smith | 9 January 2012
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In October, British Prime Minister David Cameron gave his keynote speech to the Party faithful at the annual Conference in Manchester. Within a litany of policy announcements that made the hall spin and listeners giddy, the PM hurled this curveball:

‘I stood before a Conservative conference once and I said it shouldn’t matter whether commitment was between a man and a women, a man and another man or a woman and a woman. You applauded me for that. Five years on, we’re consulting on legalising gay marriage. To anyone who has reservations, I say: Yes, it’s about equality, but it’s also about something else: commitment. Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.’

Many Conservatives are puzzled by this announcement. Although it was trailed in the British press, most Party faithful did not think (and still do not think) that introducing such contentious legislation would be right at a time of national crisis. The UK is still in the depths of recession, with rioting youths, unemployment at record highs, the national debt still way up, failed attempts to stimulate meaningful growth in the economy, and multiple crises with the UK’s biggest trading partners in the Eurozone. The Government’s attempts at health care reform have stalled badly and the shape and future of national defence is still very uncertain to boot.

Plenty of problems, one would have thought, for a Prime Minister and his Cabinet to be getting on with.

Moreover, with the Right of the Tory Party already bubbling (they boiled over only a few weeks after his speech, after losing Liam Fox from the Cabinet, when 81 Tory MPs voted for a referendum on membership of the EU against the Government’s wishes), one would have thought the Prime Minister would have wanted to keep them and his backbenchers onside.

But Mr Cameron is in a Coalition Government with Britain’s socially liberal centre-left party, the Liberal Democrats. Same-sex marriage is popular amongst the Lib Dems, and Mr Cameron no doubt was influenced by the practical need to keep his Deputy Prime Minister, Nick Clegg, and the Lib Dems on side as the austerity measures bite.

Mr Cameron too is something of a liberal on social matters. He acknowledged this in his Conference speech, and it is a view supported by his voting history.

But aside from Coalition realpolitik and Mr Cameron’s own tastes, is it really ‘Conservative’ to introduce same-sex marriage?

Conservatives and the heart of British society

Having evolved over thousands of years, marriage is a cross-cultural, ancient institution, existing to bind a loving couple in a public reflection of their private love, with the hope that they will produce offspring and nurture those children to become the mature, sensible adults of the next generation – the generation who feeds us, keeps us warm and safe when we are too old, sick or tired to do so ourselves.

To those who say that not every marriage leads to children: that is true, it’s not the ideal, it’s rare, and in any event we hope that every marriage is productive.

From a very natural and biological foundation, British culture has developed to recognise the crucial societal importance of marriage. Sanctions and prohibitions were created to safeguard the importance of marriage and keep it going in perpetuity: the prohibition on incest and bestiality, the social disapproval of adultery and the difficult process of obtaining a divorce.

Now, we agree that these safeguards of marriage are being removed, and the institution has taken a battering in the West over the past few decades. And yes, we do think that celebrities who have repeated, short-lived ‘marriages’ make it look ridiculous. Conservatives should want to conserve each and every single marriage, so it is a lifelong commitment, obliterated in very rare cases. Mr Cameron himself recognises that married families are the bedrock of society, and should be recognised for this in the tax system. They are because they generate and raise children:

‘Marriage is not just a piece of paper. It pulls couples together through the ebb and flow of life. It gives children stability. And it says powerful things about what we should value.’

Need we look any further than August’s riots in central London and other British cities, to see what happens when we turn marriage into just ‘a piece of paper’?

It all sound very Burkean (another Conservative). The meaning of marriage as a word and as an institution is that it has a natural content manifest in social and legal institutions. To state the obvious, homosexual sex does not and cannot naturally lead to procreation. Artificial reproductive techniques are always needed, meaning that the creation of any offspring needs, as a matter of necessity, assistance from outside the marital unit. Doesn’t this unavoidable defining aspect of same-sex couples preclude them from the exclusivity of marriage as British culture understands it?  

Furthermore, same-sex marriage is acknowledgment that, so far as raising children is concerned, parental genders are the same and thus interchangeable. Who needs a mother and father when mummy can be replaced with another daddy?

Even socially liberal Conservative commentators think this cannot be the case. Matthew Parris, a celebrated former Tory MP and writer, wrote: ‘I’m glad I had both a mother and a father, and that as after childhood I was to spend my life among both men and women, and as men and women are not the same, I would have missed something if I had not learned first about the world from, and with, both a women and a man, and in the love of both.’ Quite.

Same-sex couples have been able to adopt children for quite some time now, first as family members and then through ‘stranger’ adoption. To those who say it is better that a looked-after child has a loving, stable and committed home rather than be shuttled between care homes to foster parents, the answer is in the Childrens Act 1989 – a piece of Conservative legislation. It enshrines in law the principle that, when deciding on the welfare of a child, their ‘best interests’ should be paramount principle. Best interests – not good, mediocre, or anything else. Given two identical couples, equal in all respects bar their genders (two men or two women, vis-a-vis a straight couple), is it really in the child’s best interests to be placed with the same-sex pair? As Margaret Somerville answers this question, ‘Same-sex marriage creates a clash between upholding the human rights of children... and the claims of homosexual adults’. Traditional marriage does not.

Conservatives, too, are sensitive to religious arguments. It is no longer true that the Church of England is the Tory Party at prayer. However, there is a broad religious alliance against same-sex marriage. The Archbishop of Canterbury and the Catholic Archbishop of Westminster and his bishops are (for once) united against the policy, and no doubt other mainstream faiths will gear up to oppose same-sex marriage. Given the overwhelming declared Christianity of the UK – albeit somewhat residual, given the fall in church attendance – it is valid to take into account the natural philosophy that underpins the religious cant, if theological arguments themselves do not wash.

Conservatives do not play word games

The normal and natural meaning of marriage in English is between a man and women. The international and European human rights covenants (see below) contain this meaning explicitly. This is why marriage has had no legal definition in statute: its understanding was considered so widespread and had permeated so much of British society, that no legal definition was considered necessary. Thousands of cultural reference points in literature, music and art exist to support the traditional understanding. Pace Matthew Parris, but there is no ‘evolution’ of marriage ‘in common parlance’.

Moving beyond the obvious, marriage is also tied to notions of love. We have a poverty in the English language in having one word – ‘love’ – that is twisted, elongated and appropriated to mean so many different things. You bring me chocolate, I say I love you. I love chocolate, you see, and you love that television programme we are watching together. But do you really love me, and I, you? We need to pierce the simple word and show in refraction the spectrum of meanings it has.

Catholic teaching breaks down ‘love’ into agape, philia and eros, for example, and makes distinctions between the two. Conservative proponents of same-sex marriage unfortunately conflate these ideas, and deliberately so, because they know that again, by definition, their love is not the productive love that marriage in its usual sense and meaning implies. As with ‘marriage’, proponents of same-sex marriage are playing word games.

Fundamentally, it is about cultural recognition. Conservatives do not believe that the state can impose – or should do so – cultural recognition on something that only civil society can do. As a leader of the libertarian Right, Roger Helmer MEP, says, ‘it is not the business of government to legislate to change the meaning of a common and well-established word’. It is a social institution that exists a priori the existence of the state. Rather than attempt linguistic redefinition through law – a form of cultural and social engineering - Mr Cameron should focus Conservative energies on protecting an institution that is weakened, abused and – amongst some strata of British society – frankly endangered.

What happened to Conservative pragmatism?

Conservatives are considered pragmatists. With the advent of novel family relationships and the breakdown of the nuclear family and life-long commitment, Mr Cameron could claim simply to be reflecting a neo-Whiggish view of social history, where ‘progress’ is the freedom individuals have to make ‘life choices’ free from the constraint of state and society. Same-sex marriage is part of this history, runs this narrative: it builds on the rights civil partners enjoy in English law.

Practically speaking, same-sex marriage might win over some ‘pink’ votes, although it would be naive to think that gays and lesbians vote on the grounds of social policy. The Lib Dems and the ‘Cameroon’ tendency in the Party want it too, partly to satisfy their constituencies but also because they share Mr Cameron’s ‘progressive’ vision. As another socially liberal Conservative, Douglas Murray, puts it, they should support ‘stealing the mantle of gay equality from the left’.

Yet Mr Cameron’s pragmatism is misguided. It puts the legislative cart before the popular mores of British society. This is not like the post-Wolfenden reforms of the late 1950s, which lead to the decriminalisation of homosexuality in Britain. There simply is no popular push for same-sex marriage, and no groundswell of support for Mr Cameron’s contentions, either within the Party or amongst the general public.

The practical question is a double-edged sword, too. By picking this fight now, Mr Cameron runs the considerable risk of running against his chosen course of action. There will be fights on this issue: the Tory Right on front and backbench, socially conservative Labour and Northern Irish MPs, peers in the House of Lords, the congregations and leadership of mainstream religions in the UK, and large sections of the popular press, are all opposed to this measure.

Such warfare wastes time and energy in Parliament, muddies the other political messages the Conservatives will want to broadcast on the economy, Europe, Afghanistan, etc., and destroys Mr Cameron’s valuable and scarce political capital with his backbench MPs, peers and Party associations across the country. The Cameroons and Lib Dems have little standing with the Tory grassroots membership. Tory MPs want a free vote on any legislation, or at least a one-line whip, failing which they will rebel. Either way, this may put Mr Cameron in the embarrassing position of relying on the Lib Dems and the opposition to push the measures through.

Do Conservatives legislate unilaterally on important matters?

Law should reflect and shape public morality; there is clearly a push-pull relationship between what can be described as common or popular beliefs and the morality enshrined in legislation. Conservatives, however, have a precautionary principle that shies away from using legislation to engage in social engineering. Conservatives also take a cue from international and domestic policy, reflected in legislation.

Article 12 of the European Convention on Human Rights was incorporated into UK law by the Human Rights Act 1998. It states: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right’. This reflected the consensus of the framers of the Convention after the Second World War (led, incidentally, by David Maxwell-Fyfe, later a Conservative Home Secretary) and represented the dominant social and cultural understanding of marriage across Europe. In fact, this was an understanding reflected across the international community. The Universal Declaration of Human Rights, signed in 1948, and the International Covenant on Civil and Political Rights, signed in 1966, also recognises only opposite-sex marriage in Articles 16 and 23 respectively.

What Mr Cameron wants to do is to act unilaterally against the prevailing legal consensus, without realising that opposite-sex marriage is still the dominant cultural norm. In the recent case of Schalk and Kopf v Austria, the European Court of Human Rights – the ultimate arbiter of the meaning and language of the Convention – ruled that because only 7 of the 25 states within the jurisdiction of the Court had same-sex marriage laws, it was still a matter solely within the margin of appreciation – ie, the discretion and competence of national legislatures. The Court said that this position could change if there was an overwhelming shift in European national legislatures towards same-sex marriage.

In all, Conservatives do not and should not act unilaterally to engineer global social norms unless there is a great wrong to be righted, like the abolishment of slavery, for example. Mr Cameron should seek an international coalition if he seeks such change.

Cameron’s ‘equality’ and ‘commitment’

Both notions of ‘equality’ and ‘commitment’ that Mr Cameron supports as universal Conservative ideals are, in fact, very narrow and selective interpretations that he has deliberately chosen to suit his own political ends.

Equality and commitment go together as concepts, which Irish commentator David Quinn has written about at length. First, introducing same-sex marriage would confer almost no additional legal rights: same-sex couples have these thanks to the Civil Partnership Act 2004. The President of the Family Division even described civil partnerships as conferring ‘the benefits of marriage in all but name’. The differences between same-sex marriage and civil partnership, in English law, focus on the genders of the partners, the procedure and place where the partnership is formed, and the roles of consummation and adultery in making and breaking the relationship. It is no surprise that Liberal Democrat Equalities Minister Lynne Featherstone wants to remove the prohibition on the civil partnership taking place in religious premises.

Second, invoking equality as a reason for political action invites legal recognition for the relationship between elderly siblings who have shown a life-long commitment to one another, like the Burden sisters. The Burdens, both over 80 years old, wanted to the surviving sister to stay in the home they have shared for many decades, but the current rules mean the survivor would in all likelihood lose the home because inheritance tax (IHT) would accrue on the property, forcing its sale.

Also, Mr Cameron does not want full equality for homosexual couples: he might support civil same-sex marriages, but at this juncture religious marriage is ‘to remain the preserve of the heterosexual’. This will leave the door open for further legislation and litigation to force religions to accommodate religious same-sex marriage, changing their theology if necessary. Look what happens when the Government proposed allowing religious establishments to hold civil partnerships: one Tory MP has already advocated compelling churches to hold civil partnerships, in contradiction to the current Act’s provisions.

Mr Cameron’s conservatism does not promote, to use Mr Cameron’s words, the ties that bind elderly siblings (many of whom, incidentally, are much more likely to vote Tory than same-sex marriage supporters are) or any other sort of close, supportive relationship. Mr Cameron’s ‘Conservative’ idea concerns explicitly sexual relationships of a certain kind, and he denies equality to anyone else, no matter how committed they are. Commitment between homosexual partners is of course possible without any legal marriage, and is promoted in law through the existing civil partnership.

The burden on Mr Cameron

Many commentators have noted that legalising same-sex marriage is not mutually incompatible with marriage at it exists today – although it appears civil partnerships may have created a disincentive for marriage to endure. However, although we cannot know all the precise consequences of legalising same-sex marriage, it is likely that same-sex marriage will not be the end of the redefinition of marriage. If we recognise two men or two women, why not polyamory? As Neil Addison notes in his analysis of a recent Canadian case, ‘if heterosexuality is no longer legally, morally or socially relevant to marriage, why should monogamy continue to be so important?’ Former Tory MP Paul Goodman has raised a similar question in the British context: why shouldn’t multiple sharia marriages be recognised too?

The conclusion to draw from Mr Cameron’s announcement, from a social conservative perspective, is that his choice of expression was not merely a rhetorical flourish. He intends on reshaping British society, and as Charles Moore puts it, the onus is on him to prove his case. It is liberals, following John Stuart Mill, who wish to allow everything provided it is does not impinge upon the personal freedom of others (the harm principle), and see British society as just a laboratory for ‘different experiments of living’. Conservatives are historically and culturally sensitive, considering change with caution.

If enough opposition to same-sex marriage is voiced in the Government’s consultation phase then, given the number of other serious battles the Coalition faces, we should be hopeful that the plans will be quietly dropped. However, even if this battle for the social conservative soul of the Conservative Party is won, a bitter and long-running war will still be raging.

Peter Smith is a lawyer, living and working in London.

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