LGBTa: The Lingering Homophobia of the Law

The issue of gay marriage – solved by a civil partnership?

I was at dinner recently with some friends, two of whom were a lesbian couple, and we all took a light hearted turn at guessing about what the future held for them both. One of our straight friends pondered what colour her bridesmaid dress would be at their wedding.

“Wedding? We can’t get married.”

“What? Yeah you can. Surely?”

Two points can be drawn. Firstly, the fact that gay couples cannot marry. Secondly, that not everyone is aware of this fact, and judging by the look on said friend’s face, are fairly confused and borderline outraged by it.

Of course, not everyone will be as aggrieved at this finding. With a society that encourages free speech and the open exchange of ideas, the flip side is that one must accept that there will be a significant number who do not see the struggle for gay marriage as a worthy fight. But, for now, we shall ignore those idiots and concentrate on the enlightened people who do.

Before that, a brief overview of the situation is as follows. The LGBT community can get these “things” called Civil Partnerships. At the time of their creation, the Labour Government hailed The Civil Partnership Act 2004 (CPA) as a progressive piece of equality legislation, “underpinning the importance of stable and committed same sex relationships”; and as “a major step in helping [same sex] couples gain greater social acceptance of their partnership and overcome the distressing consequences for many people of their legal invisibility”.

Frustratingly however (and in colloquial terms) it walks a duck, and quacks like a duck, but for many gay couples the Civil Partnership just isn’t a duck. The problem it seems is one of symbolism. The CPA does not fall down on the rights or protections it affords the gay community, indeed in that sense it is exactly equivalent to that of a heterosexual marriage. However, the fact that gay couples are labelled as something different, something not quite the “norm” and justifying a different title of union, wrangles with many.

Some argue that we are better off out of it, that marriage is a heterosexual and patriarchal institution, and argue quite radically that it is so fundamentally flawed that it is beyond the possibility of successful reform and should be abolished. Instead, all intimate adult relationships should be regulated under the CPA. To put marriage on a divine pedestal, as the only virtuous route to partnership and procreation is misguided. It completely ignores the fact that many people live in lifeless and loveless marriages and only stay together (if they haven’t already divorced) for the financial security that comes with being defined as a spouse.

So essentially a “marriage” is between a man and a woman – “male” and “female”. Right? Wrong. In light of social and cultural developments in diversity, such as human rights and reproductive technology, these terms really need to be re-evaluated. Yet heterosexuality has remained dominant and, whilst there is a growing acceptance of socially constructed families, the CPA is a timely reminder of the lingering homophobia of the law.

To quote one of the most liberal progressive judges of recent times, Lady Hale of the Supreme Court, “A marriage, let alone a relationship analogous to marriage, can exist without either the presence or the possibility of children from that relationship….if the couple are bringing up children together, it is unlikely to matter whether or not they are the biological children of both parties. Both married and unmarried couples, both homosexual and heterosexual, may bring up children together.”

Taking a similar stance to Peter Tatchell, some radicals claim that having two distinct legal means of relationship recognition is akin to sexual apartheid and amounts to a breach of our human rights. Following the decision of Schalk and Kopf v. Austria the right of same sex couples to marry is effectively left at the mercy of Europe’s lowest common denominator. In the most recent case on same sex marriage, the European Court of Human Rights in Strasbourg made significant progress is accepting that homosexual couples do class as “family life” under the European Convention on Human Rights. However, frustratingly they went on to conclude that “States are still free … to restrict access to marriage to different-sex couples… States enjoy a certain margin of appreciation as regards the exact status conferred by alternative means of recognition.” As such, Strasbourg gives with one hand but takes away with the other.

Whilst we must recognise the great strides the CPA has brought for gay and lesbian rights, there is still unjustifiable reluctance from the Government in attributing the golden stamp of “marriage” to identically worthy relationships. This is reflected in the debates on the Bill, in which the Government said “This Bill does not undermine or weaken the importance of marriage and we do not propose to open civil partnership to opposite sex couples. Civil partnership is aimed at same sex couples who cannot marry. We continue to support marriage and recognise that it is the surest foundation for opposite sex couples raising children.” In other words, yes, you can have your legal rights, but don’t for a second think you have de facto equality.

The refusal to class those couples wishing to declare their love and commitment to each other as entering a legal marriage is archaic and unjustified. This is not to say that civil partnerships are second best in terms of protection, but they are treated as conceptually distinct without good reason. True equality will only come with recognition that sexuality and gender are not prerequisites to a legal marriage.

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