Tuesday, February 10, 2004

Peter Cuthbertson has kindly responded to my post on gay marriage, and has made several remarks in the comments section. I don't want to get too mired in this issue, given that South Africa is fast approaching an election. But I would like to offer responses to some of Peter's points. First, Peter writes that:

I think the analogy with race is daft and somewhat America-centric. The meaning of the institution was not changed by removing a law that artificially limited marriage on racial grounds -- it was ultimately about providing the most stable background for the next generation.

Personally, I think that more can be said for this analogy than Peter suggests. Marriage was legally defined, at least in the US, as a union between a man and woman of the same race, in much the same way that it is now defined as a union between two people who are not of the same sex. In doing away with the racial stipulation, the legal definition of marriage had to be changed, although this did not detract from marriage as an institution. In the same way, I think that the present definition of marriage can be altered so as to accommodate gay unions, without compromising our basic understanding of what marriage is about -- a loving partnership between two people. For the record, I think that limiting marriage on racial grounds is as artificial as limiting it on the basis of sexual orientation.

Still, given that I don't know whether there were ever such laws in Britain, I'm prepared to accept that this example might be of more relevance to the debate in the US. In that case, however, a more serious problem is posed by the second example that I gave, namely, that, from the inception of marriage in the West, it was conceptualised in terms of female subordination. Our modern understanding of marriage -- namely, as an equal partnership, as opposed to a partnership in which the woman has no more rights than a child -- is less than 100 years old in the UK.

The point I'm trying to make is this: over time, our definition of institutions such as marriage inevitably changes, in light of evolving social norms. Simply saying that a proposed change should be ruled out of court because it would amount to a "redefinition" cannot count as an objection, because we've changed the legal definition of marriage before. Instead, we need to have a debate about why we have marriage, and what marriage is about, and then consider whether our current definition is appropriate in light of the conclusions that we reach.

To my mind, marriage is, fundamentally, a loving partnership that is formally, and publicly, entered into, and which also has a range of legal consequences that facilitate a life-long relationship (such as qualifying for a spouse's passport). Having children is incidental, but not integral, to this partnership. If this concept of marriage is accepted, then clearly gay marriage does not threaten the institution. Indeed, if it is accepted that gays are also capable of loving relationships, then the prohibition on gay marriage can instead be seen as an artificial limitation, that is not necessary to maintain marriage as an institution. Allowing gay marriage does not undermine the institution; on the contrary, it furthers our understanding of why we have it.

Next Peter writes that:

Existing marriage laws do not forbid marriage on grounds of sexual preference. They simply assert that you can have only one partner, and that this partner must be of the opposite sex. Homosexual activists are not merely asking for equal marriage rights - they have them already.

I find this argument a little more difficult to follow. It seems clear to me that, by specifying that one's partner must be of the opposite sex, marriage laws express a preference for heterosexual unions. Gays cannot marry someone of their own sex, and therefore cannot marry in accordance with their sexual preference. In this sense, gays certainly do not have equal marriage rights already.

Next:

They (gays) are asking for marriage to be redefined to meet their wishes. That may or may not be a reasonable demand, but it is one of redefinition, not equality. After all, three polygamists could make the same charge. No one would claim they individually do not have equal right to marry or that they are asking for anything but a redefinition of the institution.

Contrary to Peter, I think that this is an issue of equality, rather than redefinition. If it is accepted that sexual orientation is a ground of discrimination, like race or sex, then gays can legitimately argue that the current definition of marriage discriminates against them, in a manner that offends their right to equality. Reasons can, of course, be advanced as to why the discrimination is lawful (the European Convention of Human Rights, for instance, allows for limitation of rights on the grounds of "public morals") but that does not detract from the fact that this is an issue that falls squarely within the remit of equality law. Limiting marriage to heterosexual couples quite clearly implies that gay relationships are less worthy, or that gays are somehow incapable of loving eachother with the same depth and commitment as heterosexuals.

For this same reason, polygamists won't get anywhere in asking that they be allowed to marry. Apart from the fact that I find this example rather fanciful (has anyone heard of polygamy activists?), polygamists can't point to a ground of discrimination, and therefore can't argue that they are being discriminated against. No issue of equality arises.

Finally, Peter responds to my suggestion that the right should embrace economic and social liberalism, and do away with their tradition of authority. The gist of his argument is that:

The crime and welfare that results from family breakdown is a problem that anyone who loathes big government needs to deal with. For the right to retreat into social liberalism just secures a firm basis for tax and spend welfarism for ever more.

At this point, I'm tempted to hand the torch to Andrew, given that, unlike me, he's a natural conservative, and given that he has some strong views on this matter. Nevertheless, I would like to make one point: its a grave error to equate gay marriage with the breakdown of the family, given that gays are just as capable of forming family units. The fact is that many people are gay and will enter long-term relationships. If one is worried about social decay, surely its best to recognise gay partnerships as a normal part of society, and allow gays to establish long-term partnerships in the same manner as heterosexuals? To me, that seems far more conducive to social stability than pretending that gays don't exist.

PS Peter has been nominated for the Guardian's best political web-log awards so you might want to check him out at Conservative Commentary.

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