The Case Against Same Sex Marriage

I blogged a month ago on what I believe to be the compelling case in favour of same-sex marriage.  I've been watching arguments on the subject including the comments of people like Cardinal O'Brien and trying to understand their validity.  I've tried to set them out below in category form.  The first requires the longest treatment because of some woefully inaccurate reporting on the part of the Mail (repeated in the Telegraph).

1) This isn't civil marriage, it will be forced on churches

The government has expressly said that the proposed change relates to civil marriage and churches will not be forced to marry same sex couples (just as for example divorcees cannot marry in the Catholic Church: they set their own rules on this). 

The Mail today reported on the Strassbourg case of Gas/Dubois v France.  It relates to a lesbian couple in a French civil union, who complained that they were discriminated against because they could not adopt as a couple.  The ruling is in French and is here.  My French is no longer fluent, but I waded through it and also looked at the English summary which can be downloaded here if you are interested.  The court found against the couple and expressly recognised (as it has done before) that a signatory state has to the right to discriminate against same-sex couples by not allowing them the right to marry if it so chooses.

The Mail, and the Telegraph [See Footnote] in a near virtual copy of the original article curiously reported that "the ruling also says that if gay couples are allowed to marry, any church that offers weddings will be guilty of discrimination if it declines to marry same-sex couples".  That is a pretty startling aspect that would drive a horse and cart through the government's statement to the contrary.

It is also, as far as I can see, entirely wrong.  There is nothing that I can find in the French ruling or the English summary to this effect.  It is important to note that if there had been, of course, it would have been obiter in the sense that the court was looking at whether the couple had the right to adopt under a civil union, not considering hypothetical situations that do not exist.  Further, the English law doctrine of binding precedent does not apply to ECHR judgements, so it would additionally have provided persuasive guidance rather than hard case law to be followed.  But again, let's get back to the point: it's not in the ruling.

How has this apparently shoddy reporting happened?  A barrister friend and I challenged the Telegraph journalist @DonnaBow to explain and asked her if she had not confused the opinion of a "specialist in discrimination law" quoted with the actual ruling.  This specialist is the barrister Neil Addison.  He describes himself as a "Church going Roman Catholic" who runs the website www.religionlaw.co.uk and blogs at www.religionlaw.blogspot.co.uk on such subjects as abortion, the gay B&B owners case etc.  He is obviously entitled to give his opinion on the ruling from the perspective of a committed Catholic, but for journalists to portray him as a neutral authority in this area is, I believe, misleading.  For a journalist to pass off his opinion as fact is negligent and wrong.

The "fact" that the ECHR would force same-sex marriage on churches was banded around by influential voices such as @His_Grace on his blog ("Churches WILL be forced to conduct same-sex marriages") and retweeted by opponents of marriage equality to back up their view that the law should continue to discriminate.  I suppose one can not criticise him too much for rehashing and believing a misleading couple of pieces of journalism, but it is irritating that he believes he is "quoting court judgement" and when asked to produce the relevant paragraph numbers refused to engage.  The irony of the tweet below is rather splendid in this light.

Let me summarise: the Gas/Dubois ruling expressly confirmed the right of ECHR states to discriminate against gay people in matters of marriage.  It did not discuss what I think is a key question of the interplay of the Article 9 Right of Freedom of Thought, Conscience and Religion with the right of a gay person not to be discriminated against, where a state does have same-sex marriage.  The Netherlands, Sweden, Spain, Norway, Belgium all have full same-sex marriage.  Any court actions in these countries attempting to force a clergyman to marry against his conscience in these countries would, I am sure, have been widely reported.  Certainly nothing has reached Strassbourg.

This is only my opinion, but I think it is widely fanciful to suppose that, in the light of its repeated view that gay people can be discriminated against by their countries, Strassbourg would currently take on the church in this way and rule that the rights of a gay person to get married in church outweigh Article 9 rights.  It is scare-mongering, it is conjecture, and it is not based on any jurisprudence I am aware of to pretend it is fact this would be the case.

2) This is an Attack on Tradition

So was the ending of slavery, giving women the vote, decriminalising homosexuality and any number of other positive legistlative changes that conservatives fought tooth and nail against.  This is the weakest of arguments: society changes and tradition per se cannot be a valid reason to discriminate. Marriage has constantly been redefined: a point I make in my original blog at some length.

3) This is About the Protection of Children

This is actually quite a disingenuous and nasty argument.  By bringing in children, as Cardinal O'Brien did, he sought to muddy the water and appeal to age old prejudices that gay people are somehow not to be trusted around children.  Actually same-sex couples have the right to adopt children in this country.  Allowing same-sex marriage will do nothing whatsoever to the rights of gay couples to have or adopt children here.  That is simply not the question being discussed.

The same line is trotted out here by Norman Wells of the Family Education Trust: "the ruling from the ECHR [oddly, the same one that the Mail is claiming will force churches to marry same-sex couples] will embolden those whose concerns about same-sex marriage and adoption are not inspired by personal hatred and animosity, but by a genuine concern for the well-being of children and the welfare of society."  This is in my view dishonest and frankly, rubbish.

Some might think that the arguments forwarded in relation to "one man and one woman" being the best most stable model to bring up children in a family unit have some merit; however they could actually be far better applied to illiberal measures such as outlawing divorce, forcing couples to stay together, and to ban single people and gays from adopting.

4)  This is God's Sacrament

Marriage does not stem from the Bible, it predates it and extends around the world to countries of many different faiths.  Few serious voices would argue it is uniquely Christian: it demonstrably is not. Moreover the Church does not make the laws in this country.  Parliament does.  The leaders of every political party support same-sex marriage and it was in the Conservative Party manifesto.  The Church does have the right to be heard, but it does not have the right to dictate.  Most people in this country are not church-goers, and from what I can gather many church-goers (including Catholics) disagree with the position of their leaders on this issue.

This morning timelines were filled with the hideous story of the Dutch Catholic Church being actively involved in the castration of boys and young men who had been abused by priests as a "cure" for the victims' homosexuality.  This took place in the 1950 but the story is as much about the continued cover-up by the Church up to the present day.

I do not believe it is in any way necessary to resort to attacks on the Church by describing priest as "paedos and rapists" as I have seen on Twitter in order to counter their arguments against same-sex marriage.  However, I am utterly sickened by this and other stories and do feel that an institution that has systematically permitted and covered up such abuses has rather lost the right to lecture to me about my morality, my relationships and my legal status in civil society.

I also note that the small group of vocal opponents of same-sex marriage on Twitter (mainly traditionalist Catholics, but some Anglicans) were not discussing this hideous story at all today on their timelines.  Instead they were busy seeking to justify their desire to discriminate, based amongst other things most ironically on the protection of children.  This point has been well-made: the Church recently issued a pastoral letter condemning same-sex marriage, yet we have seen no such outrage at the abuses it has permitted.  It really is quite easy to become angry and sickened at this attitude.

5) It's Ours, You're Not Allowed It

How refreshingly honest it would be to hear this argument articulated.  It is in fact, as far as I can tell, at the base of every argument against same-sex marriage, no matter how it is dressed up.  This is a matter of discrimination per se: opponents believe they have the right to marry, but the state should be allowed to discriminate to withhold this right from others.

Discrimination is not necessarily homophobia, but its effect is to separate and to say one group is not equal to another.   It is the same as "it's just not right" which I suspect is also in the hearts of many people who don't like the idea, but can't or won't articulate why. 

Summary

On political issues - for example the reduction of the deficit and economic growth - there are opposing views and it is usually possible to see the various merits and come to a view.  The issue of same-sex marriage is for me quite different.  I cannot in all honesty give any of the above arguments any weight or merit at all.  Not one of them (other than the first to correct a factual mistake) deserves more than a sentence to dismiss.

There is one important last point  I want to add to here.  The Equalities Minister recently said that Church leaders are fanning the flames of homophobia.  I disagree and instead believe what they are doing is fanning the flames of prejudice against Christians.  I have felt a level of dislike and anger towards certain tweeters I really do not like in myself and am trying hard not to tar all Christians with the same brush.  I know there are lots of Catholics and other Christians who categorically do not agree with their church's position on this issue.  However, when an institution is so aggressively telling you that you deserve to be treated as a second-class citizen by your country because of its view on morality it can be quite a struggle.

Beautifully put Zac!

There is no argument against Marriage Equality that holds water.  There is no even vaguely convincing case to be made of the harm this measure would cause.  Not one straight marriage would be affected by it.  This is a nasty attempt to discriminate simply because you think you can.  You cannot be a "liberal Christian" and convince me that they are pro-gay, whilst at the same time telling me I deserve to be treated differently by the State, as a 2nd class citizen, based on nothing more than your own prejudice.



FOOTNOTE: since writing the Telegraph has now updated its story to remove the misleading aspects of the story, though it has left a photo caption that does not match the updated version.  The story additionally now makes little sense with this central plank removed, but credit and thanks to @donnabow for admitting her mistake and amending it.