If enacted, gay marriage will not add any rights or benefits to those already provided for by the Civil Partnership Act 2004. The marriage rules relating to adultery and consummation (which never applied to civil partnerships) will still not apply to same sex marriage. And Christian gays and lesbians will be prevented from being married by the established Church of England (even if their local clergy wants to). So, while close, it is not full legal equality. And add to this the fact that Prime Minister David Cameron’s support of gay marriage has been seen by many political commentators as an attempt to prove himself to be a moderniser in the run up to the 2015 General Election, a more cautious reaction to the vote might have been in order.
But the reason why it moved me and many other gays and lesbians attests both to the symbolic significance of marriage and to law’s function, too often unacknowledged, as a vehicle for the expression of emotions. Oscar Wilde on being released from Reading Gaol in 1897 is recorded as saying, “Yes, we will win in the end; but the road will be long and red with monstrous martyrdoms”. The overwhelming support for gay marriage by the House of Commons is moving then, not primarily because of what it enables in the future, but because of the perspective it provides for viewing and remembering that long road. For many gay men alive now sex between men was illegal for a major part of their lives and lowering the age of consent to 16 (making it equal for gays and straights) was only achieved in 2000. As an undergraduate student in the 1980s not only was it potentially criminal for me to have any male partners but in family law I read about contemporary cases where lesbians were losing custody of their children simply on the basis of their sexuality. And at the same time the notorious Section 28 in 1986 outlawed the ‘promotion of homosexuality’. In this context the vote for gay marriage, in a bitter sweet way, is experienced as a form of reconciliatory justice, an implicit political acknowledgment and apology for the violence of the law in the past.
That marriage has been the vehicle for expressing a commitment to respecting gays and lesbians is not surprising. For those who see analogies between gay rights and the US Black Civil Rights movement, the right to marry (as opposed to entering a civil partnership) is comparable to the right to travel on non-segregated buses. Equal but different simply isn’t good enough. But marriage is a complex institution and its ‘true’ function has always been contested. Gay marriage is only one site of contemporary conflict. Other current debates concern the status of pre-nuptial agreements, the legal distinction between ‘forced’ and ‘arranged’ marriages, and extension of marriage-like rights to cohabitants (conjugal, coupled or otherwise). This broader context opens up the debate to principles other than formal legal equality and reveals alternatives to simply voting for or against gay marriage.
One alternative, which is adopted in many continental countries, is that ‘marriage’ is left totally to the authority of religious bodies and all legal consequences are removed from it, while at the same time opening up civil partnerships to both heterosexuals and non-conjugal relations. One benefit of this is that the rules relating to adultery and non-consummation would not apply to anyone, again a reform adopted in other jurisdictions. Of course this route would require the disestablishment of the Church of England and the separation of Church and State. (Section 3 of the gay marriage Bill refers to the Submission of the Clergy Act 1533; in family law the battle between Church and State goes back a long way!)
A second even bolder alternative would be to leave marriage to religious bodies and to simply dispense with the legal regulation of conjugal couple relationships altogether. This approach asks us to question not ‘why should gays be excluded from marriage’ but ‘why does the State regulate relationships’? This focus requires us to engage seriously with David Cameron’s claim that he supports gay marriage, ‘not despite being a Conservative but because I’m a Conservative’.
These are important questions for the future. But in looking back to the past and fittingly as Birkbeck for the time marks LGBT History Month, gay marriage is unquestionably cause for celebration.