Monday, 20 July 2009

Same Sex Marriages: A Comment

I recently received an email from a States Member in which it was stated:

I have come to the conclusion that civil partnerships are actually a red-herring and, in fact, and insult to non-heterosexual couples. The state has no business in proscribing that two people cannot get married due to their sexual preferences. Religious groups are free to discriminate based on their beliefs, but marriage as a State sponsored institution must be open to non-straight couples. To do otherwise is for the State to condone that 'gay and lesbian unions are not worthy of the honour and recognition that state sanctioned marriage confers.' For me, this is not a position I can adopt.

I am afraid I disagree on purely pragmatic grounds. While it is true that the scope of what marriage entails has differed (see historical sketch below), for Jersey to change its laws to be widely different from the European and UK locality could lead to all kinds of problems. While I admire the passion with which this case is stated, I think that pragmatism should be the best way forward, rather than faith.

The word "marriage", which has all kinds of religious baggage associated with it, and also has the State muddling the waters.

In England, until 1753, when Lord Hardwicke's marriage act was past (which is only about 250 years ago), a formal ceremony of marriage was not needed, and a marriage just consisted of two people deciding to live together as husband and wife - and declaring so publically, which usually meant to the village or town where they lived. One form of this was obviously the Church marriage, especially as in those days the Church functioned as a place where public notices as well as religious ceremonies were observed. The Marriage banns is a legacy of that. Even now, the Church does not in fact "marry" the people, it presides over them marrying each other.

Previously, people could be married at as early as seven years of age, but until the participants reached the age of consent of 14 and 12 years, such marriages could be voided easily. The act was precipitated by a dispute about inheritance in a Scottish marriage! But after that date, the State raised the age to 21 and took control of marriages, as it were.

Elsewhere in Catholic Europe, reforms were made earlier. In the 1500s, there were many marriages taking place without witness or ceremony. The Council of Trent was so disturbed by this, that they decreed in 1563 that marriages should be celebrated in the presence of a priest and at least two witnesses. Again the need for a public witness is important.

Now it seems that there are two ways to go with same-sex relationships. One is to expand the scope of marriage to include same sex relationships, or another - which is more or less what has happened in the United Kingdom. Wikipedia puts it very succinctly:

Civil partnerships in the United Kingdom, granted under the Civil Partnership Act 2004, give same-sex couples rights and responsibilities identical to civil marriage. Civil Partners are entitled to the same property rights as married opposite-sex couples, the same exemption as married couples on inheritance tax, social security and pension benefits, and also the ability to get parental responsibility for a partner's children, as well as responsibility for reasonable maintenance of one's partner and their children, tenancy rights, full life insurance recognition, next-of-kin rights in hospitals, and others. There is a formal process for dissolving partnerships akin to divorce.

The problem with expanding the scope of the term "marriage" is that

(1) it is likely to meet a good deal of religious opposition, tied into definitional argument as to what the term "marriage" means. In fact, the meaning of marriage changes in different cultures and different times, and the Old Testament shows no problems with polygamous relationships, which were clearly practiced by the kings of ancient Israel. But the meaning of marriage has over time become more restricted in terms of the legal boundaries which set out what constitutes a valid marriage in many countries.

(2) it would muddle matters when people move to different countries where marriage still has a more restrictive meaning. This kind of muddle can be seen very clearly when laws have to deal with people who come to live in a country with monogamous marriage from any of the 48 countries which accord legal status to polygamy, and often only one wife is accorded legal status and rights. Many immigrants come from Muslim cultures where their polygamous unions were legally recognized, and the question has been raised "Why then should a legally sanctioned marital relationship(albeit legally sanctioned in another country)be subject to criminal penalty?" That is bad enough, and further muddle should surely be avoided.

(3) Were Jersey to permit same sex "marriage", and widen the legal scope of what that meant, there would also be problems when people relocated from here to elsewhere, and their legal status would not be recognised in Europe or the UK. This would be like the new move by the States to give complete training to local teachers here, which means that if they went to work in the UK, they would need to obtain a PGCE qualification to do so. Likewise a same sex marriage in Jersey would require an extra Civil Partnership in the UK to be undertaken to accord the same rights.

Consequently, I'd say that to bring in a civil partnership would be the better option. That way if someone moved to a jurisdiction in which that also applied, they would have the same legal benefits. Most civil-union countries recognize foreign unions if those are essentially equivalent to their own; for example, the United Kingdom lists equivalent unions in Civil Partnership Act Schedule 20. Jersey would simply join the lists.

At present, people who move to Jersey from the UK who have a civil partnership lose their legal recognition, which may catch them by surprise with regard to the laws of inheritance.

Human rights, although one might think it came into the issue, does not - there is an article by a Professor of Law here, which I give an extract of:

Does the European Convention on human rights require equal access to legal marriage for same-sex couples?
by Professor of Human Rights Law, Kings College London, Robert Wintemute

In domestic law marriage is only permitted between persons of opposite gender, whether such gender derives from attribution at birth or from a gender recognition procedure. Same-sex marriages are not permitted. Article 12 of the Convention similarly enshrines the traditional concept of marriage as being between a man and a woman (Rees v. United Kingdom, 1986). While it is true that there are a number of Contracting States which have extended marriage to same-sex partners, this reflects their own vision of the role of marriage in their societies and does not, perhaps regrettably to many, flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950.

With the links that Jersey has with the UK as a Crown Dependency, and patterns of immigration from there to here, I think that as a matter of good government it should not accord UK citizens less rights in this matter if they come to Jersey, and should pass - at the very least a law - validating the legal rights of any Civil Partnership entered into by those people coming from the United Kingdom. Of course the ideal solution would be Jersey's own Civil Partnership law.

There may come a time in which same sex marriage will replace Civil Partnerships as an option of choice in Jersey, but for the pragmatic reasons stated, I do not think the time is yet.

No comments: