York Minster, See of Dr. John Sentamu The folly, futility and dangers inherent in the proposal of the British Government to introduce legislation which will redefine marriage were forcefully underlined on Thursday by the second most powerful voice in the Church of England, Dr. John Sentamu, Archbishop of York. Dr. Sentamu, writing on his website said that principles of justice were in danger of being undermined if this proposal becomes law.
The questions raised by these proposals are, he argues, issues of justice rather than equality.  As far as he is concerned the existing legislation on civil partnership has resolved the question of equality. He maintains that interfering with the institution of marriage in the way proposed is a needless move which will undermine an institution which is a bedrock of society itself.

Up to now, the only reason I have been given for a desire to redefine marriage to embrace same-sex relationships is that it meets an emotional need of some same-sex couples (only some, as I have forcefully been led to believe some reject the concept of marriage altogether).  If the rights of Civil Partners are met differently in law to those of married couples, there is no discrimination in law, and if Civil Partnerships are seen as somehow “second class” that is a social attitude which will change and cannot, in any case, be turned around by redefining the law of marriage.  It may even make social attitudes go in reverse gear.  So I submit that to use the law to redefine marriage when there is no legal inequity involved is a misuse of the Statute.  It must never be used to give comfort or reassurance but to remedy an injustice. While Dr. Sentamu argues that he is not taking his stand on the basis of tradition nor on the basis of a defence of something identified as “Christian” he does affirm that  for him  Justice is only possible when Law, Religion and Morals are inter-mingled.

My position derives from Lord Denning’s famous comment: “Without religion, no morality; without morality, no law."

English Law has always taken the essential nature of marriage as between a man and a woman as a ‘given’. Sir James Wilde, Judge Ordinary, said in his judgment in Hyde v Hyde and Woodmansee (1866) L.R.1P.D 130

 “Marriage has been well said to be something more than a contract, either religious or civil, to be an Institution.  It creates mutual rights and obligations, as all contracts do, but beyond that it confers a status.  The position or status of “husband” and “wife” is a recognised one throughout Christendom.  Marriage is defined as the voluntary union for life of one man and one woman, to the exclusion of all others”.

This continued to be the legal understanding, so that in 2004, Lord Millet made his judgement in the case of Ghaidan v Godin-Mendoza, stating that

 “Marriage is the lawful union of a man and a woman. It is a legal relationship between persons of the opposite sex. A man’s spouse must be a woman; a woman’s spouse must be a man.”

 I firmly believe that redefining marriage to embrace same-sex relationships would mean diminishing the meaning of marriage for most people with very little if anything gained for homosexual people.  If I am right, in the long term we would all be losers. Dr. Sentanu emphatically affirmed that in this whole debate the question of the equality of all human beings, “heterosexual” or “homosexual”, is not an issue. 

None of us is of greater value than anyone else in the eyes of the God who made us and loves us. Quoting from an Anglican statement of 1995, he said,

‘At the deepest ontological level, therefore, there is no such thing as “a” homosexual or “a” heterosexual; there are human beings, male and female, called to redeemed humanity in Christ, endowed with a complex variety of emotional potentialities and threatened by a complex variety of forms of alienation.’

In fact it could be argued that to create two kinds of marriage, as is proposed, Civil Marriage and Religious Marriage, creates a distinction and a new inequality within marriage. Hitherto, England and Wales have had a unified law of marriage based on a unified idea of what marriage is. This important legal bedrock is being discarded.

If the proposals currently before us come into effect, for the first time there will be two levels of marriage recognised within English Law, one open only to different sex couples entered into at a Religious Ceremony, the other open both to different and to same sex couples entered into at a Registry Office.

However the question for me is one of justice, and not equality.  Justice is the primary category.   It does not mean not treating everyone the same way but giving everyone what he or she needs or deserves:  education to the young, home-care to the old, opportunity to the enterprising, protection to the threatened.   Equality follows justice, and secures its consistent administration:  not just some young people but all, not just some threatened people but all.   A clear picture of the just order is what makes equality objective.   Without it equality-claims are liable to be subjective and contradictory.

If it was a question of justice, what injustice would result from not turning Civil Partners into married couples? I submit, No injustice.

The virtue of the Civil Partnerships scheme lay in the attempt to treat the needs of gay and lesbian couples as what they are, not to bundle them into some other category.  

Marriage is built around complementarity of the sexes, and therefore the Institution of Marriage is a support for stable families and societies.

Those Civil Partners who consider that their partnership is still inadequately recognised should give the Civil Partnership legislation time to establish itself and gain increasing public understanding. 

It is a great mistake to use the Statute to give comfort and assurance. The Rule of Law exists to address injustices. The current difference between marriage and Civil Partnerships does not involve injustice, but, arguably, the proposed changes would, by creating two new varieties of marriage.

In arguing from the long history of marriage as a social institution I do not accept the criticism that I am simply arguing from tradition. And I am certainly not just arguing for ‘Christian marriage’. In January Dr. Sentamu gave a long interview to the Daily Telegraph – now also on his website - in which he said, ‘Marriage is marriage is marriage.’  He elaborated on this:

We know of no time in history before men and women came together in marriage. The reason for this lies in the difference between, and complementary nature of, the two sexes. The coming together of male and female, of two people who are radically ‘other’, is unique to marriage, and marriage is unique to it. This is not in any way to decry other forms of relationships, only to say that they are not the same. His current website posting is a response to the many comments he has received as a result of the Telegraph interview. In this context he said:

A number of arguments have tried to define marriage today as “an expression of love between two people”.

Special as this mutual expression of love between two people may be, I do not consider that this amounts to marriage. Mutual loving commitment alone does not capture the meaning of this particular defining relationship, most commonly recognised as a suitable context for the nurture, development, and flourishing of children.

I am under no illusion that growing up in a family with both a father and a mother is always a recipe for flourishing. However it is a fact of life that children are born out of the physical relationship of a mother and a father, and that this relationship, with the unique genetic imprint which it conveys, is a foundational ingredient of the child’s identity.

We are, in part, what our parents have made us. However the inheritance from our biological parents does not stop there.  Inevitably the nature of their relationship with each other – and with us as their children - helps to define who we are. 

I want to support families of all kinds in the care and support of children, but I also want to affirm marriage as an essential norm. We owe it to one another, and especially to our children, not only to support all who have the responsibility for their care, but also to cherish the stability offered to individuals, to couples, and to society as a whole by the Institution of Marriage.

Marriage, as currently understood as the union of a man and a woman, fulfils a key social function.  It helps define who we are, what we value and how we build for our future. This is why it is spoken of as essential to our social fabric, as the bedrock of a hospitable and diverse society.  

 In a predominantly individualistic society, talk of social norms is not always well understood.  The idea of a norm is often taken to be oppressive to those who do not, or cannot, share it.  True, norms can be applied oppressively and we must strive against that.  But if it becomes impossible to say how a good society needs most of its members to live, there is a much greater oppression waiting in the wings – the oppression which prevents us saying anything about a good society at all.

  We all know the expression “the exception proves (that is, tests) the rule”.  We are in danger of becoming such an atomised and individualistic society that every exception is assumed to destroy the rule, and that leaves us unable to talk about the common good at all.

 Some people did argue that the proposal for same-sex marriage would lead to “no change in the meaning or significance of any heterosexual marriage”.

 Of course, if someone should ask, “How will my marriage be affected if couples of the same sex can marry?” the answer is, Not at all.  But let me put the question another way: what sort of a society would we have if we came to see all family relationships primarily in terms of equal rights?

The family is designed to meet the different needs of its different members in different ways.    It is the model of the just society that responds intelligently to differences rather than treating everyone the same.

 Whilst I am a strong supporter of justice and equality of opportunity for all people, I want to insist that with those rights go our responsibilities one to another. These are enshrined, I believe, in our legal definition of marriage. Would we be a better society if we made marriage simply a private contract between two individuals with no wider implications of kinship and family?  I do not believe that we would.  The issue is not the implication for any existing marriage but the implication for people in future when the social meaning of marriage has been changed and, in my view, diminished. Dr. Sentamu’s full statement presents a powerful case for marriage to remain defined as it currently is in English law. It certainly presents Mr. Cameron and his government with a case to answer and one wonders whether they will have the intelligence, the judgement and the courage to face it squarely and honestly.