Evidence on civil partnerships
Evidence submitted to the working group of the Bishops' Conference on civil partnerships
Summary
1-3 Status of the CDF's Considerations: heart of the document an appeal to reason, inviting a rational assessment.
4-6 Civil partnerships analogous to marriage? The CDF's view that there are no similarities between civil partnerships and marriage not borne out by experience, but an analogy also implies a difference.
7-17 Logical analysis of the CDF's four arguments:
8-12 argument from inconsistency: formally valid, but the expression 'contradict right reason' ambiguous in the two premisses
13-15 argument from reproduction: invalid, can be made valid only on pain of false premiss
16-17 argument from society: a causal, empirical argument; no inevitability to redefinition of marriage if civil partnerships distinct, but marriage already a family of inter-related but distinct contracts; a distinction between matrimony (religious) and marriage (civil) proposed
18 argument from the legal order: invalid - same fallacy as in argument from reproduction
20-25 Statement and application of Cardinal Hume's criteria:
22-23 first criterion: elucidation of 'undermine'; argument that legal recognition of civil partnerships would strengthen marriage and families
24 second criterion: argument that legal recognition would serve the common good (= is in the public interest)
25 third criterion: a defeasible presumption that any discrimination is unjust
26 Strategy: co-operative criticism of the government's proposals has more chance of influencing the legislation than outright opposition
27-28 Evangelization: the bishops' response will have an effect on people's attitude to the Church, especially that of lesbian and gay Catholics, for good or ill, and must be weighed from this point of view.
Appendix: testimonies from partners, at least one of each of whom is a member of Quest, in long-standing relationships, and from a priest. The names of the persons concerned have been given, in confidence, to the Chairman of the working group.
Evidence
1 Cardinal Hume, in his Note on the Teaching of the Catholic Church concerning Homosexual People of 1997, wrote that 'the Congregation for the Doctrine of the Faith has indicated that judgements about legislation and responses which may be made by the Church can be left to the bishops of the country concerned (L'Osservatore Romano, 29 July 1992)' (§13). The publication on 31 July 2003, by the Congregation for the Doctrine of the Faith, of Considerations regarding proposals to give legal recognition to unions between homosexual persons, appears to over-ride this discretion, since it concludes that 'The Church teaches that respect for homosexual persons cannot lead in any way . to legal recognition of homosexual unions' (§11) and tells Catholic MPs that they have, under pain of grave sin, 'a moral duty . to vote against it' (§10). Prima facie, this leaves the Bishops' Conference with no leeway and dictates the working group's conclusions.
2 However, there are other remarks in the document that give us grounds to suppose that our evidence may still serve some useful purpose. First, it is stated that the document does not contain new doctrinal elements, though that seems to be at variance with the claim noted above that opposition to legal recognition of same-sex unions is taught by the Church. Second, the purpose of the document is stated as being 'to provide arguments drawn from reason' against such recognition. But if the CDF takes its stand here upon reason, not upon revelation or authority, its arguments may, by the same token, be assessed at the bar of reason, and even the bishops must be held free to scrutinize them. Third, these arguments are provided as a resource for bishops 'in preparing more specific interventions, appropriate to the different situations throughout the world', which implies that the arguments may be used or not, as bishops see fit, and that they are expected to tailor their responses to local situations. Finally, the aim of the bishops in responding to proposals for legal recognition of same-sex partnerships should be to protect and promote the dignity of marriage, the foundation of the family and the stability of society (of which marriage is a constitutive element) - all admirable aims, with which few would cavil, and that provide a yardstick against which such means as refusing legal recognition to same-sex partnerships may be judged (§1).
3 The Chairman of the working group has indicated that he believes it 'directly relevant to the situation in this country' and that the group 'will draw', inter alia, 'on the CDF considerations'. Among these is the CDF's contention that 'There are absolutely no grounds for considering homosexual unions to be in any way similar or remotely analogous . to marriage' (§4: the text actually says 'to God's plan for marriage and the family', but since it is a category-mistake to suppose a union similar to a plan, this does not make sense as it stands). Accordingly, the Chairman has also said 'Our response will clearly oppose creating a legal registration of same-sex partnerships which equates them to marriage' and that 'the closer any proposed legislation comes to creating 'same-sex marriage', the stronger our objections become'. Yet the government has stated: 'It is a matter of public record that the government has no plans to introduce same-sex marriage. This consultation document is about a civil partnership registration scheme' (DTI §1.3). If we are comparing the proposed civil partnerships with Christian marriage, this is clearly correct: only civil benefits and responsibilities are at issue.
4 Yet the CDF has placed itself in a dilemma. If same-sex partnerships are really in no way similar or remotely analogous to marriages, then no legislation can create a similarity, and any suggestion that civil partnerships would be in competition with marriage must be dismissed from the start. The CDF cannot have it both ways: either there is an analogy here, or - a priori - civil partnerships pose no threat to marriage. There is simply no case to answer, no facts to consider. But, of course, the CDF's subsequent argument that legal recognition of civil partnerships would inevitably lead to a re-definition of marriage gives the lie to this, for how could it possibly do so if there are no similarities between them? This contradiction must be resolved before we can go further, for literally anything follows from a contradiction; if you are prepared to accept a contradiction, you have given up on reasoning altogether. Philosophers and theologians were clear about this even by the thirteenth century: they say again and again that the principle of non-contradiction is the basis of all theoretical reasoning.
5 Two different things are analogous when they are similar in some respects but not in others: as is often said, every analogy goes lame at some point. If the two things were the same in every respect, then we could not differentiate between them. More than this, an analogy rather than a mere similarity often involves some parity of structure[1]. It is not enough, therefore, to refute an analogy to cite respects in which the two things are different; one would also have to consider respects in which it is claimed that they are the same and show that the similarities are illusory. All that the CDF does is to say that while marriage (married sex?) is holy, homosexual acts are wrong; that while married sex can be reproductive, homosexual sex cannot; and that while the partners to a marriage are complementary, same-sex partners are not. The third contrast is unclear but, apart from that, three dissimilarities do not show that there is no analogy between the two cases, for it still remains open that there are balancing similarities.
6 The Alternative Service Book of the Church of England offers a description of marriage that Catholics could also endorse; it is:
a gift of God in creation and a means of his grace, a holy mystery in which a man and woman become one flesh. It is God's purpose that, as husband and wife give themselves to one another in love throughout their lives, they shall be united in that love as Christ is united with his Church.
Marriage is given that husband and wife may comfort and help each other, living faithfully together in need and plenty, in sorrow and in joy. It is given, that with delight and tenderness they may know each other in love, and through the joy of their bodily union, may strengthen the union of their hearts and lives. It is given that they may have children and be blessed in caring for them and bringing them up in accordance with God's will, to his praise and glory.
As Canon Jeffrey John, who quotes it, comments: 'With the exception of childbirth all these purposes of marriage can be fulfilled in a permanent, faithful, stable gay relationship, and are being fulfilled in many'[2]. Later, he remarks:
Knowing an ordinary gay couple is the best antidote to prejudice and the best way of destroying the ludicrous stereotypes and suspicions that still lurk in the mind of many. People soon come to realize the lifestyle doesn't differ much from their own. As one 'out' priest put it, 'once it dawned on the parish that having a partner didn't mean orgies at the vicarage but having arguments about who goes to Tesco's and who walks the dog, they stopped minding. They realized we were the same as them.' . It is only by helping good relationships to be seen that healing will come - for everybody.[3]
There are, then, many similarities between marriage and same-sex partnerships and we think that most people would agree that there is enough by way of a structural similarity to constitute an analogy. It does seem that the CDF's abhorrence of same-sex unions and fixation upon genital activity has blinded it to facts which stare anyone in the face who is prepared actually to look at the phenomena being compared instead of trying to decide empirical questions a priori.
7 The heart of the CDF's Considerations is entitled 'Arguments from reason against legal recognition of homosexual unions'. Moreover, these arguments 'are addressed not only to those who believe in Christ, but to all persons committed to promoting and defending the common good of society' (§1). This signals that these are not theological arguments and, hence, that we are invited to assess them without invoking revelation. Accordingly, we wish to examine them logically and shall resist the temptation to indulge in rhetoric, of which, we believe, everyone has already had a surfeit in this area. The CDF puts forward four arguments against legal recognition of same-sex partnerships; actually, a single valid argument from true premisses would be enough, for the conclusion of an argument will be true just in case its premisses are true and the argument itself is valid.
8 The argument from inconsistency. According to official Church teaching, homosexual sexual activity is always wrong. However, no one today supposes that everything that is wrong should ipso facto be illegal; apart from any other consideration, such law would be unenforceable and that would lead to contempt for the law itself. Prima facie, then, the morality of homosexual sexual activity is irrelevant to the issue before the working group. The CDF acknowledges that civil law has a more limited scope than moral law, and even allows that same-sex sexual partnerships, though wrong, might be tolerated. But 'the approval or legalization of evil is something far different from the toleration of evil' (§5). The reason is that
civil law cannot contradict right reason without losing its binding force on conscience. Every humanly-created law is legitimate in so far as it is consistent with the natural moral law, recognized by right reason, and in so far as it respects the inalienable rights of every person. Laws in favour of homosexual unions are contrary to right reason because they confer legal guarantees, analogous to those granted to marriage, to unions between persons of the same sex (§6).
9 This is presented as a deductive argument. Reduced to its bare bones, it goes as follows: every law that contradicts right reason is not morally binding; but every law recognising same-sex unions contradicts right reason; ergo no such law is morally binding. The argument is formally valid both in Aristotelian and modern first-order logic; it can be broken down into minimal steps each of which exemplifies a pattern of argument so simple that its validity is uncontroversial. But it is likely to be opaque to a modern reader, as the expression 'contradict right reason' is no longer current. Moreover, the expression plays a key role and it is essential to the validity of the argument that it should bear exactly the same sense in both premisses. The CDF cites two references, which shed some light on it. The first is to the present Pope's encyclical letter Evangelium vitae (§72); the context is a discussion of legitimizations of abortion and euthanasia, but the encyclical quotes, in turn, Pope John XXIII's encyclical Pacem in terris, which makes a quite general point:
laws and decrees enacted in contravention of the moral order, and hence of the divine will, can have no binding force in conscience (section II, §51 in CTS translation).
Both popes, as well as the CDF, then cite St Thomas Aquinas:
human law has the force of law to the extent that it is according to right reason . but to the extent that it departs from reason, it is said to be unjust and thus does not have the force of law.[4]
This occurs in a reply to an objection under the question 'Is every law derived from the divine law?' but, strangely, neither the CDF nor either of the two popes refers to a question in which Aquinas raises directly the question at issue: Does human law impose necessity on a person before the court of conscience? i.e. are we bound in conscience by human laws? He answers that we are so bound, provided the laws are just. But they can be unjust in two ways, either by being contrary to human good or being contrary to divine good. An example of the latter would be laws inducing us to idolatry. These we may never obey. An example of the former would be laws which are not generally useful, but serve the lawgiver's greed or glory; or, again, laws which exceed the legislator's competence. These do not oblige us in conscience, unless perhaps to avoid scandal or disorder.[5]
10 The importance of the second text is that it spells out what is meant by a law being according to right reason (being just) or, by contrast, departing from it (being unjust). A law is unjust if and only if it is contrary to divine or human good. But in what does contrariety consist? The CDF is clearer on this point, interpreting contrariety as inconsistency in this context.[6] Now inconsistency is defined quite precisely: a set of propositions is inconsistent just in case not all of them can be true, i.e. if they contain a latent contradiction, the negation of one member of the set being derivable from some or all of the remainder. But this applies only to propositions, expressions that are accounted true or false, whereas we are concerned with laws, which are a kind of command. So we need a practical analogue of this theoretical notion of consistency. Well, by obeying a law we bring about a certain state of affairs, which in turn can be described by a proposition. The state of affairs in which divine and human good consist can also (theoretically) be described. So we can say that an unjust law will be one that, if obeyed, will result in a situation inconsistent with divine or human good. That cannot include laws that merely permit actions that go against divine or human good, since the CDF agreed earlier that the civil law is more limited in scope than the moral law, i.e. that not every immoral action should be illegal. It must, then, mean that an unjust law is one that obliges citizens to act against divine or human good, in a word, to do something wrong. This is a strict interpretation of the CDF's position, but it has textual support and we should not lightly pronounce laws unjust. Moreover, this is supposed to be a rational argument addressed to all people of goodwill, so it is appropriate that its premiss should be uncontroversial, rather than relying upon debateable views as to what is or is not in accordance with right reason. The premiss, then, means that no one is morally bound by a law that obliges citizens to do something wrong.
11 We may now paraphrase the second premiss of the argument as follows: 'Laws in favour of homosexual unions oblige citizens to do wrong because they confer legal guarantees . to unions between persons of the same sex'. Even now, the phrase 'in favour of' is tendentious, suggesting laws that encourage same-sex unions, whereas what is proposed is merely a law to recognize existing same-sex unions. But, either way, the premiss appears to be false; it would be a hard task to show that the government's proposals would force anyone to do wrong, even allowing the CDF's premiss that homosexual sexual activity is always wrong. It is, of course, more plausible (if obscure, to a modern reader), at least at a first hearing, to assert that laws recognizing same-sex unions are contrary to right reason, but only by interpreting 'right reason' in a sense other than that which it must bear in the first premiss. If, then, we give a sense to 'contradict right reason' in the second premiss under which the latter might be true, this will not be the sense that it bears in the first premiss. The argument, therefore, is invalid by reason of the ambiguity of its key term 'contradict right reason', in the two premisses.
12 Is the CDF's underlying thought in this argument perhaps that people who get married (and in that respect are doing something good) are rewarded by the government, whereas same-sex couples are doing something bad, so they should not be rewarded for it? However, the government's proposals make it clear that registration of a civil partnership will carry responsibilities as well as privileges, and these will certainly be enough to deter some same-sex couples from registering a partnership, just as the responsibilites of marriage are a deterrent to many heterosexual couples. In the government's eyes, and in that of most of our fellow-citizens, the notion that the privileges of marriage are a reward for good behaviour will be laughable. Or is the thought that such legislation is in some way irrational or unreasonable? In that case, it needs to be shown why, especially in view of the government's lengthy arguments in favour of it. At any rate, it is clear that this argument cannot be repeated as it stands; nobody will be convinced by it without further elucidation.
13 The argument from reproduction. This argument begins with an obscure premiss, that same-sex unions lack 'the biological and anthropological elements of marriage and family' that would afford rational justification for recognising them legally. This is not spelled out, so we have to guess what elements are meant from the subsequent development of the argument. It continues by claiming that same-sex partnerships 'are not able to contribute in a proper way to the procreation and survival of the human race' and 'are totally lacking in the conjugal dimension'. The latter consists in 'mutual assistance' of the partners and being potentially reproductive (§7). The phrase 'in the proper way' is problematic; if it is used to make the premiss true by definition, then we have only a tautology and not an argument. If, on the other hand, it is given a sense under which the premiss is contingent (empirical), then it needs to be spelled out. Essentially, then, the argument runs: if a kind of union contributes to the procreation and survival of humanity, then it deserves legal recognition; marriages do so contribute, and hence deserve legal recognition; but same-sex unions do not, so they do not deserve it. The conclusion respecting marriages is validly drawn, but that respecting same-sex unions is not: it is an example of the fallacy of negating the antecedent of a conditional. The invalidity of this argument can be shown by a counter-example, that is, a parallel argument with uncontroversially true premisses and an uncontroversially false conclusion. Here is such an argument: if there is an accident on the motorway, then we shall be late; but there will not be an accident on the motorway; ergo we shall not be late (This doesn't follow because we might, for instance, be held up by congestion instead).
14 The CDF's premiss asserts that contributing to the procreation and survival of humanity is a sufficient condition for granting legal recognition to a kind of partnership. In order to obtain the conclusion that it wants, however, contributing to procreation and survival would have to be a necessary condition. That is, it would have to read: 'Only if a type of partnership contributes to human reproduction and survival does it deserve legal recognition'. But this has nowhere been shown. There could also be other reasons for giving legal recognition to a partnership, other reasons why it would be in the public interest to do so. The government, indeed, supplies them. Moreover, while same-sex partnerships are not reproductive (except, perhaps, in extraordinary circumstances), today and for the foreseeable future overpopulation is a much greater danger to human survival than underpopulation, so that limiting reproduction, rather than maximizing it, does contribute to human survival. If some couples refrain from reproduction (for whatever reason), they actually bestow an advantage on heterosexual couples with children, by reducing the competition for resources, and so benefit the married and their families. But perhaps, in the CDF's book, that is not contributing 'in the proper way' to human survival?
15 If the 'conjugal dimension' of a relationship consists, as the CDF states, in the mutual assistance of the partners and being potentially reproductive, then it will also be false that same-sex partnerships are totally lacking in the conjugal dimension, since, although not potentially reproductive, they offer the same facilities as marriage for mutual assistance and, indeed, exhibit it in practice. What is left as true in these two assertions is, therefore, simply that same-sex unions are not potentially reproductive. But it is unclear why a partnership should not be legally recognized on that account alone. The Church recognizes marriage between men and women where the woman is past child-bearing age, and there was a case a few years ago when a disabled couple were married (after an initial fuss) although disabled in a way that made reproduction physically impossible.
16 The argument from society. The third argument is that marriage would inevitably be redefined if same-sex unions are given legal recognition, in such a way that it would lack any essential reference to heterosexual factors such as reproduction and child-rearing. This is a causal argument and, as such, empirical. Prima facie, it is invalid if same-sex unions are distinguished in law from marriages: there is then no inevitability at all about redefinition of marriage. It raises, however, an important conceptual issue: has not marriage been redefined already? Are there not a number of distinct and mutually incompatible contracts in our society all of which are called 'marriage'? To take two, compare Catholic marriage with civil marriage in the UK. Catholic marriage is a contract that, once validly entered into, can end only with the death of one of the partners; civil marriage in the UK is a contract that, while open-ended and not fixed, can be terminated during the lifetimes of both partners for a variety of reasons. These contracts, qua contracts, are patently incompatible with each other, in this and probably many other respects; one can of course live under both by voluntarily not making use of provisions of one that would conflict with provisions of the other. Again, Muslim marriage is a contract that allows the husband to have more than one wife; civil marriage in the UK does not. What we now have in a pluralistic country like Britain is a family of institutions all called 'marriage':
These phenomena have no one thing in common which makes us use the same word for all . but they are related to one another in many different ways. And it is because of . these relationships, that we call them all ['marriage'] . we see a complicated network of similarities overlapping and criss-crossing: sometimes overall similarities, sometimes similarities of detail. I can think of no better expression to characterize these similarities than 'family resemblances'; for the various resemblances between members of a family: build, features, colour of eyes, gait, temperament, etc. etc. overlap and criss-cross in the same way.[7]
17 It might be clearer, without denying the family resemblances between different types of marriage, if we were to distinguish between matrimony as a contract witnessed by a minister of religion under the rites authorized by that religion, and marriage as a civil contract registered by the state. It can then be said with some confidence that legal recognition of same-sex partnerships would carry no implications whatever for the definition of Catholic matrimony, which is entirely a matter for the Catholic Church. Since civil marriage and Catholic matrimony have already parted company - despite many resemblances - any redefinition of 'marriage' would be of no consequence to the Church. It may be that same-sex unions, once legally recognized, would eventually be called 'gay marriage' popularly whatever their official name. But we are, in any case, only a short step from this in the UK at present; all that would be required is to repeal section 11c of the Matrimonial Causes Act (1973), which declares marriages between persons of the same sex void. If registration of a civil partnership were to confer essentially the same rights and responsibilities on same-sex couples as marriage confers on couples of different sexes, it might well seem legislatively simpler to combine both sets of provisions into a single bill and call both 'marriage'. But would this matter? Perhaps the churches are not ready for it yet, because they are reluctant to give up the limited power over civil marriage that they still retain, so that the issue is more one of power and influence than of morality. The differences between matrimony and marriage have already increased to the point at which it can only be a matter of time before we adopt the French system under which every marriage must be witnessed at the mairie and any religious marriage ceremony is quite distinct. And the Church in France learned to live with that two hundred years ago.
18 The argument from the legal order. The fourth argument is that marriages have to be legally recognised because married couples ensure the succession of generations; same-sex unions do not exercise this function for the common good and so don't need recognition. This seems to be a variant of the second argument; what else is it 'to ensure the succession of generations' but to have and bring up children? In that case, it simply repeats the fallacy embodied in the second argument: if a couple can have and raise children, then it must be legally recognized; but a same-sex couple cannot have and raise children; ergo it must not be legally recognized. The counter-example already cited applies here, too. In order for the argument to be valid, the premiss would have to be: marriages require legal recognition only because married couples have and bring up children. But that is false.
19 The result of this scrutiny of the CDF's four arguments is, therefore, that each of them is either invalid or has at least one false premiss. Accordingly, they fail to demonstrate that same-sex unions should not be accorded legal recognition. Nevertheless, we welcome the CDF's descent into the public arena both in attempting a rational justification of its position and in making empirical claims[8], since the former can be subjected to logical analysis and the latter measured against evidence. This recognises that every statement from Church officials today carries implications for evangelization and, to win respect, must carry conviction.
20 Turning now to the UK, there are precedents for episcopal support for civil legislation designed to improve the lot of homosexual people. Cardinals Griffin and Godfrey supported the proposals of the Wolfenden Report (published 1957) to decriminalize consenting homosexual sexual activity in private. More generally, the Social Welfare Commission's An Introduction to the Pastoral Care of Homosexual People of 1979, subsequently adopted by the Bishops' Conference, recognized that
Social disapproval and rejection of the homosexual person simply because he or she has these tendencies is a distressing problem for the homosexual. Unfortunately, the misunderstanding frequently comes from 'religious' people and ostracism of and discrimination against the homosexual can frequently result in many people who are practising Christians being unwilling to admit that they are homosexual. Society may be misunderstanding and even pre-judging a large section of the community (pp.4-5).
In order to clarify this misunderstanding, some further points were made, including:
Homosexuality is often thought to be anti-family - a threat to the institution of the family itself. Some organisations do, in fact, threaten family life in the form in which we understand it today, but other homosexual organisations expressly aim to promote traditional, accepted standards. There is a danger of our identifying all homosexuals with radical and progressive pressure groups (p.5).
The document concluded with sixteen 'pastoral guidelines'. Although these do not address proposed legislation directly, they include two that are relevant:
9 Marriage has not proved to be a successful answer for most homosexuals. Marriage in these circumstances can be unfair to the partner and even extend the distress of the homosexual to the whole family. It may be marriage for the wrong reasons and, in any case, marriage must not be thought of as the only gateway to God and the only way to fulfilment (p.12).
13 The Church has a serious responsibility to work towards the elimination of any injustices perpetrated on homosexuals by society. As a group that has suffered more than its share of oppression and contempt, the homosexual community has particular claim upon the concern of the Church. (p.13).
21 Cardinal Hume was building upon these precedents in his Note. He begins by recalling the circumstances that prompted him to write it:
In 1992 background advice was offered by officials of the Congregation for the Doctrine of the Faith to bishops in the United States about how to assess the impact of legislative proposals concerning homosexual people and their housing and employment rights. Some of the expressions used in the subsequently published note of this advice, and quoted without context, caused distress and anger, together with misunderstanding of where the Church stands.
The working group now finds itself in a parallel situation, which makes Cardinal Hume's three criteria for assessing legislative proposals even more to the point:
The Church does have a duty to oppose discrimination in all circumstances where a person's sexual orientation or activity cannot reasonably be regarded as relevant. However, in making any response to proposed changes in the law which are designed to eliminate injustices against homosexual people, there are a number of criteria which have to be kept in mind. Among the most important are the following:
-
are there reasonable grounds for judging that the institution of marriage and the family could, and would, be undermined by a change in the law?
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would society's rejection of a proposed change in the law be more harmful to the common good than the acceptance of such a change?
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does a person's sexual orientation or activity constitute, in specific circumstances, a sufficient and relevant reason for treating that person in any way differently from other citizens?
These are matters of practical judgement and assessment of social consequences, and thus must be considered case by case and this without prejudice to Catholic teaching concerning homosexual acts. It may well be, however, that Catholics will reach diverse conclusions about particular legislative proposals even taking into account these criteria (§13).
We agree with the criteria and shall apply them to the DTI's proposals for civic partnerships. We hope that the Bishops' Conference will also accept them not only for now, but as a reference for judging any future legislative proposals.
22 First Criterion. Some clarification of this criterion is needed, since it is not immediately clear what would count as 'undermining' the institution of marriage and the family. We note that undermining these institutions is in question, not undermining particular families or marriages, although widespread damage to the latter would doubtless affect the institutions adversely as well. What is undermined will, presumably, collapse, but surely no one supposes that heterosexual couples will cease to marry or that families will disintegrate as a result of the government's proposals? Perhaps, however, 'undermined' should be softened to 'adversely affected', e.g. if they would be held in less public esteem, or the ties that bind the partners together would be weakened, or heterosexual couples would be less likely to marry, or children be less well provided for.
23 Civil partnerships are not an alternative to marriage but, rather, complementary to it. Doubtless some homosexual people who, in the absence of civil partnerships, would have married will not do so if they can enter into a legally recognized same-sex partnership instead. But this will strengthen marriage, not undermine it. The reason is that - at least in our experience - a marriage in which one spouse is homosexual is rarely successful. To begin with, it is very unjust to the heterosexual partner who, even if aware of the orientation of the other spouse, is unlikely to appreciate initially the full consequences of it for a long sexual relationship. Fidelity becomes increasingly difficult for both spouses, and eventually they split up (probably after a period of regular adultery, which may be casual), with the bitterness and upheaval that are a commonplace of divorces, and unhappy consequences for any children involved.
Statistics about promiscuous sexual activity are revealing. Police reports show that approximately half of those arrested for homosexual activity in public places are married men, and we can reasonably take this to be an accurate sample of the whole. This little-known fact seems to me enormously significant. It suggests that a large number of men who are predominantly or at least significantly homosexual in orientation, having adopted for whatever reason the course of marriage, are driven to seek satisfaction for their true sexual nature in this way. It is fair to ask how many of them would have been saved from the misery of their situation if building a decent same-sex partnership had ever been presented to them as a viable option.[9]
A policy that increases the proportion of failed marriages could reasonably be held to undermine marriage, whereas one that decreases the proportion, by offering an alternative to people who are not suited for marriage, should increase respect for it.
24 Second Criterion. The government has no doubt that civil partnership registration 'would encourage stable relationships, which are an important asset to the community as a whole. It would reduce the likelihood of relationship breakdown, which has a proven link to both physical and mental ill-health. Strengthening adult couple relationships not only benefits the couples themselves, but also other relatives they support and care for .' (DTI, §5.1). This is supported by other considerations:
Two more sets of statistics, taken from surveys of the behaviour of gay men in the U.S.A. and in France, demonstrate that the incidence of promiscuous activity among gay men falls dramatically when they enter into a stable relationship. This is proof positive that gay monogamy, no less than marriage, fulfils its Prayer Book function as a 'remedy against sin'. Again it is fair to ask how many gay men would have been saved from the degradation of promiscuous and compulsive sex if they had had the chance of living and loving in a stable relationship.[10]
There is an ad hominem argument here for those who think that homosexual sexual activity is always wrong, for they must consider which is worse, sexual activity within a stable relationship, or casual sexual activity. If the answer is the latter, then there is reason to think that, even on this assumption (which we do not share), legal recognition of civil partnerships will effect some moral improvement. But the question before us is only whether not recognizing civil partnerships will be more harmful to the common good than acceptance: are stable sexual relationships in the public interest or not?
25 Third criterion. The CDF frequently quotes itself to the effect that 'Every sign of unjust discrimination in their regard [that of homosexual people] should be avoided'[11]. This may sound magnanimous, but the catch, of course, lies in the qualification of 'discrimination' by 'unjust'. If, every time some particular piece of discrimination arises, it can be dismissed as not being unjust, the apparent guarantee is not worth much. On the other hand, it may be that, sometimes, discrimination may be justified. The CDF's maxim, then, needs to be qualified by a defeasible presumption that any discrimination will be unjust. That is to say, we begin by assuming that all discrimination is unjust, and the onus lies with those who think it is justified in a particular case to show this. Cardinal Hume's third criterion then specifies exactly what has to be shown: that a person's sexual orientation/activity provides a sufficient and relevant reason for treating him or her differently from other citizens. Some of the government's proposals are directed to remedying prima facie injustices:
Many [people in a same-sex relationship] have been refused a hospital visit to see their seriously ill partner, or have been refused their rightful place at their partner's funeral. Couples who have supported each other financially throughout their working lives often have no way of gaining pension rights. Grieving partners can find themselves unable to stay in their shared home or to inherit the possessions they have shared for years when one partner dies suddenly without leaving a will.[12]
It is not acceptable just to assert that these instances of discrimination are not unjust because the people concerned are in a same-sex relationship. How is this relevant? And does it provide a sufficient justification for treating them differently from married couples on these counts? It is not up to us to show that the existing discrimination is unjust; if somebody wants to argue that it is justified, we will consider his arguments. 'The intrinsic dignity of each person must always be respected in word, in action and in law', said the CDF in an earlier document, and Cardinal Hume commented: 'Any systematic failure to respect that dignity needs to be tackled, if necessary by appropriate legislation'[13].
26 We conclude that the government's proposal to provide legal recognition for same-sex partnerships is, in general, in accordance with Cardinal Hume's three criteria and even, on his principles, that such legislation should be enacted. Moreover, as a matter of strategy, since the government's proposals enjoy three-party support, the working group will have much more hope of influencing the legislation if it criticizes it constructively than if it can only muster blanket disapproval. Some of the details, indeed, deserve closer scrutiny, which we shall give in our evidence to the DTI. One may be mentioned here because it relates to the argument of §18. The registration procedure proposed will require the couple to give notice of intention to register a civil partnership, then wait a minimum of 15 days while the registrar checks that the formal requirements are satisfied, and finally set a date for registration. If the government really wants to encourage stable relationships, then it is surely sensible to require the parties to consider very carefully whether to undertake such a major commitment, just as the Church imposes a long period of reflexion upon religious before they may take final vows. Even though couples will doubtless have thought about the matter well before giving notice of intention, 15 days does seem a very short minimum period (unless, perhaps, one party is dying). The delay is no doubt set at a minimum of 15 days to parallel the provisions for marriage and, indeed, we can think of no reason that would dictate a different period of notice for same-sex partnerships. But if stability is the aim, then perhaps it should be made more difficult to enter into either contract.
27 The working party's report will have an evangelical dimension. It will, no doubt, be read by the CDF, but its content will be noted by lesbian and gay Catholics in this country and throughout the English-speaking world. The government estimates that between 5% and 7% of the population is lesbian or gay, which would amount to between 200,000 and 280,000 people in England & Wales alone baptised as Catholics. At the moment, the Church enjoys a poor public image among homosexual people who openly acknowledge their orientation, because Church officials have given fodder in recent years to those who are eager to publicize derogatory or condemnatory remarks about lesbian and gay people but do not give equal emphasis to supportive statements. We believe that the tone of the CDF document is ill-judged. It is not enough to repeat that lesbian and gay people 'must be accepted with respect, compassion and sensitivity'[14] and then go on to make the following assertions:
Those who would move from tolerance to the legitimization of specific rights for cohabiting homosexual persons need to be reminded that the approval or legitimization of evil is something far different from the toleration of evil (§5).
Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development (§7).
There are good reasons [unstated[15]] for holding that [same-sex] unions are harmful to the proper development of human society (§8)
Legal recognition of homosexual unions . would mean not only the approval of deviant behaviour . but would also obscure basic values which belong to the common inheritance of humanity (§11).
These remarks, even if they are consistent with the CDF's view that homosexual sexual activity is always objectively wrong, are calculated to give offence. If they amount to treating lesbian and gay people with sensitivity, what would count as treating them insensitively?
28 This should be a cause of sorrow to pastors (as distinct from ecclesiastical politicians), who will be mindful of our Lord's words 'Whoever causes one of these little ones who believe in me to sin, it would be better for him if a great millstone were hung round his neck and he were thrown into the sea' (Mark 9:42). Religion and sex has always been a heady mixture; it offers a great temptation to the self-indulgence of expressing our emotions rather then the honest labour of trying to tease out the truth. We need to be aware of this temptation and to guard against it. More obvious, perhaps, is fear of those who press us to a course of action against our better judgment with threats of reprisals. Every means should therefore be taken by the working group, short of compromising the truth, to avoid judgments that will be seen by lesbian and gay people as discriminatory and unjust; for that would indeed be, in the strict sense, 'to give scandal'. At present, we detect a sense among lesbian and gay Catholics in the UK that we have been abandoned by our bishops; a positive initiative will be needed to counterbalance this sentiment. We do not envy the working group its task, for it seems impossible now to reassure lesbian and gay Catholics of the Church's good-will towards them without some public rebuke - though it might be tactfully phrased - to the CDF. As committed Catholics, we do not confuse the Church with Church officials, however exalted their rank, but we should like to be able to be proud of them, too. It is, therefore, doubly disappointing to have to criticize one of their documents not only for its low intellectual quality but also for its patent ill-will, especially in an age when the Church has argued vigorously for human rights elsewhere.
Appendix: TESTIMONIES
The late Archbishop Worlock of Liverpool reported that
It is of special interest to recall Cardinal Hume's first intervention in the debate at the 1980 Synod on the Family, when he referred to the wording of the schema which said that 'the prophetic mission of the family is related to the teaching office of the pastors'. The Cardinal added a most significant consideration: 'This prophetic mission of the family, and so of husbands and wives, is based upon their experience as married persons and on an understanding of the sacrament of marriage of which they can speak with their own authority. This experience and this understanding constitute, I would suggest, an authentic fons theologiae, from which we, the pastors, and indeed the whole Church can draw'[16].
What is sauce for the goose is sauce for the gander, so we have asked some members of Quest in long-standing relationships to say:
- how the government's proposals will affect you
- whether you would consider registering a civic partnership and, if so, why
- how your view of (heterosexual) marriage would be affected by enactment of the government's proposals
… together with anything else that you would particularly like the working group to know.
The emphasis throughout should be on your personal experience.
The names of the contributors have been given to the chairman of the working group, on the understanding that they will remain confidential.
A & B
If the government's proposal to acknowledge gay couples through enabling them to register their partnership were enacted, then my partner and I would want to register our relationship. We now want the same responsibilities, and advantages, that heterosexual married couples enjoy (pension rights, inheritance rights, hospital visiting rights...the list goes on). After having been together for twelve years, paying far more tax during this time than equivalent married heterosexual couples pay, we both feel that it is about time that our relationship was fully recognised in law.
We have found through our own experience that at present there are horrendous double standards in the way gay couples are treated by the State. For example, during recent litigation against my former employer, I was informed that one of the reasons why I did not qualify for legal aid was because my partner's income took our 'household income' through the threshold for such aid. My partner (or at least his income) was recognised by the State. Having now won the litigation, I am very much aware that should I die in the near future, my partner would face onerous tax issues, because my partner is not recognised by the State as my spouse.
My partner and I have faced life's joys and tribulations together, supporting one another throughout the difficult times, as many, though not all, married couples do. I feel that we do not deserve to be discriminated against by the State (nor indeed by the Church). Our relationship deserves the same recognition and support (including pastoral support) that married couples can expect.
We do not agree that by enabling gay couples to register their partnership, the government will be undermining heterosexual marriage. The issue often appears to be presented as if such a registration process (for gay couples) would cause straight couples to seek some alternative to marriage. We do not see why there should be any difference between a civic ceremony in a town hall for a straight couple, such as that which takes place at present, and a ceremony for a gay couple. Further, our families and friends have shown us support in respect of this matter, with some of the latter expressing surprise upon learning that the 'partnership registers' occasionally featured on the television news give the participants no additional rights or responsibilities as far as the law is concerned.
C & D
We believe the Government's proposals will legitimize our relationship removing any doubts or ambiguities regarding such matters as inheritance, pension rights and status as next of kin. We have been in a relationship for forty-three years and are already accepted and recognized as a couple by families and friends as well as a large number from the wider community, including the church. However, we would welcome the opportunity to register our relationship as a civic partnership for the above legal advantages.
Our view of marriage both as a sacrament and a social contract between heterosexuals would be unaffected by the proposed legislation.
We wish the Working Group, and the hierarchy generally, could be persuaded to consider us, and others like us, not as elements in some abstract theological theory, but, in the spirit of the gospel, as human beings, fellow Christians, with social, as well as pastoral needs.
E & F
We are in the second year of a strong, close, loving and monogamous relationship - as strong and good as the best of marriages. No legislation for or against registering same sex relationships can ever detract or enhance the love that we have for each other. However, from our love for each other comes a strong desire to protect our future and rights together - this we believe will be given to us when this new legislation goes through.
I recently had to go into hospital to undertake some serious investigations, there could have been complications and this caused us worry. F was worried for me, he wanted to be there to support me, he wanted to be kept informed, and he wanted to be present in everything. I wanted the same, and with some element of risk involved I also wanted him to be protected and provided for in case of the worse, I really needed him to be close in everything. If he was my civil partner he would have these rights, at present he has none. We relied on the good will of the hospital staff (who were very supportive) but what would happen if the good will was not there?
Incidentally, when it comes to paying out money, buying new furniture, a car or a bathroom the salesperson is very happy to recognise us in our relationship, is keen to involve us both in decision making and of course to accept the cheque. Our family, friends and neighbours are supportive of our relationship, it seems only the government (and sadly the Church) lags behind in these views.
We are both committed Catholics and understand the tensions and difficulties that some within the Church have with this. This really hurts and we don't believe that Christ would behave in this way to us, it seems that they would rather brush this under the carpet and would rather we did not exist as adult committed Catholics. For them we are an embarrassment. But we believe and we are committed to the Church as much as we are to each other despite wave after wave of diatribes against us, our relationship and our love for each other.
It is interesting the view that heterosexual marriage would be cheapened by enactment of the government's proposals as we see many sound and faithful marriages that would not be affected by such externalities. We also see some heterosexual marriages which are weak, a sham, un-wholesome - but legal. Marriage is a good thing which should be encouraged and all should be encouraged to enter the permanency and stability which this brings. Civil partnership will not weaken marriage, but enhance the importance of this gift.
We would consider a civic partnership to cement our partnership rights and further help to support each other in our relationship.
G & H
How would partnership rights affect us?
Firstly, let us state that we have made legal provision to protect one another insofar as we understand is currently possible. We purchased our home jointly in such a way that, should one of us predecease the other, the full ownership of the property will revert to the surviving partner. We have each made a 'living will' so that, in the case of medical emergency, one of us can try to have his opinion considered and be consulted by medical staff regarding the course of treatment to be taken. We understand, however, that any doctor could choose to totally ignore this document without consequence. We have each registered with our individual employers an 'expression of wish' with regard to payment by our employers of death-in-service benefit. But again, this payment is allocated at the employers' discretion; so our wishes could be ignored.
So, partnership rights would firstly give us peace of mind in knowing that each would be legally registered as the others next of kin - so, for example, any medical emergency scenario would be much simplified. Also, by being registered as legal spouse or partner, our employers would automatically make any death in service payment to the surviving spouse/partner. In the event of the death of one of us, death duties payable by the surviving partner, as sole inheritor, would be greatly diminished
Would we consider registering a civic partnership and, if so, why?
Once it becomes available, we fully intend to legally register our partnership. Firstly, we already take as much responsibility and care for each other as is legally possible at present. This legislation will allow us to take fuller responsibility for, and care of, each other. Secondly, for all the benefits stated above. Thirdly, to strengthen the already-existing commitment we have to one another. We also believe it will strengthen our standing within our local community by our public acknowledgment of our commitment to one another.
How would our view of (heterosexual) marriage be affected by enactment of the government's proposals?
The availability of marriage to heterosexual couples will remain unaltered by this legislation and we do not see any correlation to the legal registration of our partnership. We do not believe that our ability to register our partnership will in any way undermine heterosexual marriage or the fabric of society (as is being implied by some quarters in the press).
J & K
Earlier this year, we celebrated our 37th anniversary in, to use Jeffrey John's words, our permanent, faithful, stable partnership. As K says, he had never thought, as a teenager when we met, that any kind of happy and contented family life could be his as a gay man. Nor had J, when we met, he having a year earlier lost (through a sudden fatal coronary thrombosis) his then partner of 12 years, imagined that he could ever be so fortunate as to find someone else to share his life with. Such events are all too rare in the 'gay world', and the pity is that the Church does so little about it. All the Vatican can keep going on about is homosexual acts and not, as Cardinal Hume perceived, what is far more important, homosexual love. 'Love', he says, 'is not synonymous with sex', it 'can take many forms', and appropriately expressed (just a polite nod here, though not without its ambiguity, in Rome's direction) 'love between two persons, whether of the same sex or of a different sex, is to be treasured and respected.'
Neither of us is getting any younger. Why should grief, which J has already known, when death parts us, be aggravated by all manner of penalties - no next-of-kin status, no security of tenure in one's own home, loss of pensions, inheritance tax? We do not ask to be married in law or for some church wedding. Yet what we seek in simple justice is, according to highly-placed clergy, a legitimization of evil. K is not a religiously inclined person, but J, much to K's astonishment, remains loyal to the Catholic Church of his birth, family upbringing, recusant roots, and schooling, and still very deeply committed to all that is essential for his faith in Jesus Christ. 'No one', he says, 'will succeed in pushing me out of my Church.'
L & M
Our relationship is in its 27th year. One of us is a Roman Catholic convert, and the other is C of E. We are both members of Quest.
We would welcome a civil partnership registration scheme that gave us 'next of kin' status, and legal recognition.
We believe that as a registered couple we would benefit from increased financial security through arrangements designed to reflect more accurately our situation.
We believe that in the event of death, any possible difficulties between relatives and the surviving partner, would be settled quickly as a result of the civic partnership.
We do not believe that heterosexual marriage would be weakened by same-sex civic partnership. Each is very different.
We welcome Bishop John Hine's statement:
'The Church recognises the great value of friendship, which is not confined or identified with marriage or family. The Church does not reject love or friendship between homosexual people but only the expression of this through sexual intercourse which properly belongs to husband and wife in marriage. It may well be that the bond of friendship makes someone closer to us than we are to our next of kin. Friendship is something for which we can all rejoice A failure to acknowledge this can lead to the wrongful exclusion of someone who should be informed and involved in cases of medical emergency or, for instance, in funeral arrangements.'
* * * * * * *
We have also received the following testimonial from a priest:
I am a priest who has developed a ministry to gay men since the AIDS epidemic first came to public attention in 1987. This ministry has been carried out with the permission of four bishops under whom I have exercised my priesthood.
An attitude prevalent with many of the gay men I have met is that the Church is not interested in them. They have often received unsympathetic condemnation in the Sacrament of Reconciliation rather than the forgiveness and sympathetic spiritual help that they had expected. Most don't bother with it any more. Many stop going to Mass because they cannot square the lived experience of their sexuality with what they perceive as the hostile attitude of 'the Church', by which they mean unhelpful priests and 'the Vatican'.
But there are also same-sex partnerships of long standing: often of greater stability than some marriages. These couples are often active in various parish ministries, e.g. Special Ministers of the Eucharist, Readers, musicians and artists. I know of none of these couples whose relationships is not expressed, at least occasionally, sexually, though they would claim that this is not what sustains their relationship. They would claim that it is the love by which they support and value each other. They often have a very real faith and deep spiritual life through which they become outgoing, helpful people. They find it difficult to accept that the teaching of the Church on these matters is actually true. They cannot, therefore, assent to it.
Most of these couples welcome the proposed legislation to provide equal civil rights to those of heterosexual couples and go on to say that they receive more help from relevant NGOs and Parliament than they do from the Church.
They now look to the Bishops to support the proposed legislation as a practical expression of some statements from the Bishops that the Church should welcome gay men and treat them with justice and lack of discrimination.
My own hope would be that some priests would be encouraged to develop pastoral initiatives in providing support for gay men and that this support would be publicised so that all members of the Church would be aware of its availability and so bring it to the notice of those who would benefit from it. At present I feel my ministry, after all these years, seems like an undercover operation!
There are many gay men who suffer the shame of a promiscuous life style because they not only feel rejected by the Church but also by God. There are others who struggle to live a celibate life style and yet wonder if this really is the imposition of a loving God or just an unloving and unjust rule of the Church.
The proposed legislation is an opportunity for the Church, first, to welcome help towards justice for the gay community and then seek to participate in that help by making publicly authorised spiritual help available for gay men, in a way in which they can accept it.
Footnotes
You can click on the footnote number to return to the corresponding footnote reference in the main text.
[1]cf. Aquinas, De veritate 2.11, especially on analogy of proportionality.
[2]‘Permanent, Faithful, Stable’: Christian Same-Sex Partnerships. London, Darton, Longman & Todd, 1993, p.13 (revised edition 2000, p.24).
[3]ibid., p.27 (revised edition p.54).
[4]lex humana intantum habet rationem legis, inquantum est secundum rationem rectam… Inquantum vero a ratione recedit, sic dicitur lex iniqua; et sic non habet rationem legis (Summa theologiae, 2-1.93.3ad2).
[5]Iniustae autem sunt leges dupliciter. Uno modo, per contrarietatem ad bonum humanum…: vel ex fine, sicut cum aliquis praesidens leges imponit onerosas subditis non pertinentes ad utilitatem communem, sed magis ad propriam cupiditatem vel gloriam; vel etiam ex auctore, sicut cum aliquis legem fert ultra sibi commissam potestatem… tales leges non obligant in foro conscientiae; nisi forte propter vitandum scandalum vel turbationem… Alio modo leges possunt esse iniustae per contrarietatem ad bonum divinum: sicut leges tyrannorum inducentes ad idolatriam, vel ad quodcumque aliud quod sit contra legem divinam. Et tales leges nullo modo licet observare. (Summa theologiae, 2-1.96.4co)
[6]On contraries, see also Aristotle, Categories 10-11.
[7]Ludwig Wittgenstein, Philosophical Investigations I.65-67.
[8]E.g. as experience has shown', §7.
[9]John, op.cit., p.21 (2000, p.41).
[10]John, op.cit., p.22 (2000, p.42).
[11]CDF §4, quoting CDF (1986), §10 and Catechism of the Catholic Church §2358.
[12]DTI, Foreword by Jacqui Smith, p.9.
[13]Hume, op.cit., §14.
[14]Letter on the Pastoral Care of Homosexual Persons, 1986, §10.
[15]This is an explicitly empirical claim. It should, therefore, be supported by evidence, especially as it makes a serious and unpleasant charge.
[16]Foreword to John Henry Newman, On Consulting the Faithful in Matters of Doctrine. London: Collins, 1986.
Response to 'Civil Partnership: A framework for the legal recognition of same-sex couples' (Women & Equality Unit of the Department of Trade & Industry, 2003)
Quest, an association for lesbian and gay Catholics, welcomes in general the government's proposals to provide for legal recognition of same-sex partnerships. We believe that these proposals will remedy some injustices, will directly encourage stability in such partnerships and also, indirectly, enhance stability in and respect for marriage, by providing a 'respectable' alternative for those not suited for marriage but who nevertheless want to live in a permanent intimate relationship. Moreover, if these proposals will enhance the stability of partnerships, they will also increase the security of children adopted by partners, whether of the same or of different sexes. In all of these ways, legal recognition of same-sex partnerships is in the public interest, and we trust that the government's proposals will be included in the Queen's speech at the opening of Parliament in the autumn.
We are aware that the Catholic Bishops' Conference of England & Wales has set up a working group to prepare its own response to these proposals and we have already submitted evidence to that group in the above sense. However, the Bishops' Conference has not established consultation criteria comparable to those approved by the Cabinet Office and published in Annex D of 'Civil Partnership'. The working group has not issued a consultation document, nor even asked publicly for submissions. It has not itself published a list of its members, nor any assurance that its report, when complete, will be made public. We are especially concerned that no member of the working group is openly lesbian or gay, so that no voice is given to those whom these proposals principally concern. Moreover, the working group and, even more, the Bishops' Conference, are working under external pressure to conform to a blanket condemnation of any form of legal recognition for same-sex partnerships promulgated by the Vatican on 3rd June 2003. We have criticized the arguments in that document in our evidence to the working group, and this is not the place to pursue the matter. Our purpose here is solely to warn the government that it cannot safely be assumed that any submission from the Bishops' Conference expresses the views of British Catholics as a whole, nor even that consultation - in the sense that the government understands it - was undertaken before the Conference formulated its own view. Such evidence as we have - admittedly anecdotal - suggests that many if not most British Catholics who have thought about the matter do not agree with the Vatican's strictures.
We now turn to the questions posed in 'Civil Partnership' and to other details of the proposals.
4.13-17 We agree that registration must be public, but instead of requiring an address, the Church of England (default) parish or Local Authority ward could be given, since these are already legally recognised for some records and documents; or perhaps place of birth. To prevent misuse, we suggest that additional measures as well as restricting some of the information supplied could help. Misuse could be made an offence, on the lines of the provisions for the Gender Recognition register. Evidence of identity could be required for access to the register, and a record kept in case of future problems.
More important than details of how the register is published are the circumstances under which, in virtue of registration, an individual may be forced into disclosure of his or her relationship. For example, partnership has a direct effect on pensions. For that and reasons of long standing tradition, it is quite usual on an application form (and indeed later during employment) for an employer to ask, because he needs to know, the marital status of the applicant/employee. This is either by tick-a-box or by fill-in-the-box. A registered partner cannot be single (the duties imposed on the employer are greater than those for a single man), yet he is not married but at the same time is ineligible to marry or to form a new civil partnership. This may be relevant to his employment. Failure to disclose a civil partnership would then be to deceive the employer, and will in any case be discovered when he seeks to enforce his pension rights or to take compassionate leave because his partner is ill. If he does disclose it, however, he may lay himself open to discrimination. This may not be immediate, but when promotion or retirement is in question. The Sexual Orientation Regulations included in the Employment Equality Regulations 2003 are a particular cause of concern in this connection, as they allow requirements relating to sexual orientation to be applied in some circumstances where the employment is 'for the purposes of an organised religion'.
4.19-20 The principle to be followed here is that discrimination in any part of the UK is discrimination in every part of the UK. Moral issues are impervious to location, unless it can be shown that location introduces a moral difference, i.e. there is a defeasible presumption in favour of the above principle. Laws that introduced or perpetuated discrimination would therefore be unjust. We therefore agree with the government's conclusion in 4.19 while, in regard to 4.20, we think it totally unacceptable not to introduce civil partnership provisions in Northern Ireland. There is an especially discriminatory climate against lesbian and gay people in parts of Northern Ireland; to exclude civil partnerships in that province would send out a signal that the government condones such attitudes. And this will be a feature in which we live, not in a united kingdom, but in a disunited one.
7.4 Agreed.
7.20 Two principles appear to be in conflict here. The first is that same-sex partners and different-sex partners should be treated on a par unless there is something in the nature of the two types of relationship that dictates otherwise. The other is that a given provision should be reasonable in itself. On the first principle, same-sex partners not being civil partners should receive exactly the same treatment with respect to Social Security benefits as unmarried partners. A reason is then given for treating unmarried different-sex partners the same as married partners, namely, that otherwise the former would benefit financially by not getting married. There is a further, tacit premiss that it is in the public interest that different-sex partners should marry. But does this require that remaining unmarried should never confer a financial advantage? Surely it would be enough if, on balance, the financial advantages of marrying outweighed those of unmarried cohabitation? When we consider widow(er)s' pensions, inheritance tax, tenancy succession and the whole gamut of financial advantages in marriage, surely there can be no doubt where the financial balance lies? So perhaps the most reasonable solution would be to change the treatment of unmarried different-sex partners with respect to Social Security benefits, treating them as single.
A further consideration militates against treating same-sex partners not being civil partners, for this purpose, as though they were in a civil partnership. Many more people of the same sex share a household, either simply for companionship or for economic convenience, where there is no question of a sexual relationship, than people of opposite sex. In their case, there is no question of registering a civil partnership, and hence no argument that they should be encouraged, in the public interest, to do so. It would be extremely invidious for public servants to have to determine, in all of these cases, whether or not an intimate relationship were in question. So, if there is a case here for treating people of the same sex who elect to share a household as if they were married for Social Security purposes, the reason cannot be that they enjoy a sexual relationship, but simply that they share a household. That, indeed, appears to be a more relevant reason anyway; but if this is the real ground for differential treatment, let it be stated as such - that they live together. It has nothing whatsoever to do with sexual relationships, whether hetero- or homosexual, and the reference to marriage is a red herring. The appropriate question to ask these people is simply 'do you share an address and a common purse with anyone else?' In this way, most - though perhaps not quite all - temporary interdependency is caught, whether a multiple flat share that cooks communally rather than individually, or adult children in the parental home.
8.5 The same principles apply here as in 7.20. However, the reason for treating unmarried different-sex couples on a par with married ones is different: presumably, it is that in both cases the partners have assumed financial responsibility for each other. Again, then, the relevant point is that there is a shared household. In the case of registered partnerships, whether civil or marriage, the financial responsibility has been assumed legally, so partners to both should be treated equally with respect to child support. Where the mutual financial responsibility is de facto but not de iure, a decision has to be made whether to count it as equivalent to a de iure responsibility so far a child support is concerned. This is complicated because de facto responsibility is not an all-or-nothing matter; mutual financial responsibility may be accepted only up to a point, and that point may differ from case to case. But this calls into question whether unregistered couples should in this respect be treated the same as registered couples; it does not drive a wedge between unmarried heterosexual couples and unregistered same-sex partners. We conclude that either unregistered same-sex partners should be treated as cohabiting unmarried heterosexual couples with respect to child support, or that the treatment of the latter should be reviewed.
Are there any other rights and responsibilities that should be given to registered civil partners?
1 The right to have a Registered Partnership converted to a Marriage if legislation is ever introduced to allow same-sex marriage.
2 The right not to be discriminated against in employment nor branded in a job application by title of relationship. This should include a clear statutory limit in the request for information and job application forms, such as 'are you single, legally attached, liable for maintenance/provision for family?' rather than 'are you married, single, divorced or separated?'
3 The duty to maintain children and the amount of maintenance to be fixed by formula for liability and amount, as now for heterosexuals in the Child Support Act 1991, §26, and therefore the 'right' not to be branded as separate and unusual by a different type of Court proceeding as at 8.9. This would also benefit heterosexuals. Proof would be a simple paper exercise for liability and the amount a matter of arithmetic.
4 The Human Fertilisation & Embryology Act 1990 and associated rules need more thought as to detailed drafting but there is no other good reason why Registered Partners should be excluded from its provisions.
Terminology: 'civil partnership registration' and 'registered partner'.
'Spouse' is already a technical term, otherwise old-fashioned and gradually becoming obsolete, and so need not imply marriage. There would therefore be no insuperable obstacle to adopting it instead of 'registered partner', and this would have the additional advantage that National Insurance, Inland Revenue and electoral forms would not have to be altered.
Some people would like to see registered same-sex partnerships called 'marriage'. Eventually, if a clear distinction is drawn between civil marriage and religious marriage as different if related contracts, there might be no objection to recognizing registration of same-sex partnerships as a form of civil marriage; and it would certainly simplify legislation. However, in spite of their differences, religious and civil marriage are not, at present, clearly differentiated in the public mind, so that to call partnerships 'marriage' would be to provoke opposition to the government's proposals not because of their substance but merely in the interest of conceptual tidiness.
On the other hand, 'partnership' has strong commercial overtones; to avoid them, 'life covenant' could be considered, at any rate as a temporary expedient, in the expectation that, once the institution is established, popular usage will gradually change and legislation can then be amended to catch up with it.
Other comments:
2.9 Rights of other home-sharers
There is a potential unforeseen consequence here. Siblings are within the prohibited degrees and therefore, as the government says, a separate issue. But flat-mates may not be if they are of the same sex and find it financially convenient to register. Same-sex partnerships require a 'relationship', undefined in the document, so two elderly widows, for example, who share a flat but not a bed, or two retired celibate priests, might register a partnership simply in order to pool their financial resources and maximize the transferable resources for the survivor. There is no requirement that a civil partnership should be a sexual partnership, even though the legislation has been devised primarily for the benefit of same-sexual partners. It could just as well be an economic partnership.
Further, there will be a risk to the interests of landlords such as the Peabody Trust. Imagine that I am terminally ill and require an expensive drug treatment that cannot be prescribed on the NHS. The treatment will prolong my life for a finite period. My flat is a highly desirable property. I am poor. My will leaves what little I have to my nephew and niece. A 'kind' man who does not love me and cannot afford to buy a flat offers me a substantial sum, which will not cover the deposit on a London flat but will pay my drugs bill, to form a partnership before I die. When I do, he will be free to marry, but he will also have secured the tenancy for himself and his bride as against the landlord, who will not have vacant possession.
4.10 Place of Registration
While approving this provision, we note the phrase 'a place where registrations normally take place' and trust that this will include all of the places nowadays available for the registration of marriages, assuming the proprietors of those places are willing for them to be used for the purpose. It is likely that some couples will want to seek the support of their friends and relations for the match in the usual way by making a considerable social occasion of the event, possibly in conjunction with a religious event of a more or less official character. This will also gain support for the bill from the licensed and hospitality industries.
4.12 Registration: step 2
One of the government's stated aims in introducing civil partnership is to 'encourage more stable family life' (1.2). Yet it proposes that a civil partnership may be registered after a minimum of 15 days after giving notice to the registrar. No doubt the intention is to parallel the arrangements for registration of a marriage. In both cases, however, to enable such a major decision so quickly hardly seems likely to encourage stable relationships. The parties will no doubt have thought about the matter before giving notice to the registrar but, even so, a 'cooling-off' period of six months is more realistic and would allow for the consequences to be more fully understood, while 4.9 allows for shorter periods in exceptional circumstances. The period proposed by the government puts both marriage and civil partnership on a par with taking out an insurance policy and makes it only half as serious as buying goods on 30 days' approval. Is that really the government's intention? There is, though, no reason why it should be more difficult for same-sex partners to enter a civil partnership than for a heterosexual couple to marry, so this would require a review of marriage law, too. But registered Civil Partnership is ideally placed to set an example from the outset of well-considered stability to other forms of partnership, both more and less formal. Same sex partners are less susceptible to the pressures of time that are occasionally present less or more obviously in the solemnization of some heterosexual marriages.
4.21 Mutual Recognition of Civil Partnerships
This paragraph speaks only of recognition in England & Wales of civil partnership schemes operating in other countries. Clearly the government should give parity not only to visiting and resident foreign partners, one of whom may be a UK national, but if it does, may then expect parity for UK partners travelling, or taking up residence and tax status, abroad. Once civil partnerships are established in the UK, the government may well find itself compelled to extend the benefits conferred by partnerships on UK nationals (though not the ability to form them in the first place), to visiting or resident European Union nationals in the UK. As a general rule, it is not permissible to confer rights and benefits upon one's own nationals and then to discriminate against other EU Nationals by not conferring the same rights upon them when here.
Consideration should also be given, however, to recognition abroad of the scheme to be introduced here. Perhaps the way in which Double Taxation Relief agreements were negotiated with other countries individually would be a model for how to proceed; at any rate, steps should be taken to secure the recognition of the new scheme here in as many other countries as possible. A start could be made with the other countries of the European Union. Though the government cannot legislate for other countries, the eventual White Paper could include a statement of intent to negotiate such agreements wherever possible.
There is a further reason why the government should pay attention to recognition of civil partnerships by foreign governments. In 3.3 it lays down provisions to ensure exclusivity of partnerships. But what happens if a person who has validly entered into a civil partnership in England or Wales goes to a country that does not recognise same-sex partnerships and validly marries there? Suppose, further, that marriages in that country are recognised in England & Wales (as is most likely). Not only would there be problems if the person in question returned to England or Wales, but his/her Domicile of Choice could be uncertain and in the event of death abroad (especially if intestate, or with a will recognised in one country but not in the other) inheritance, too. These issues should at least be considered before legislation is introduced and, if necessary, advice given to those who have registered a civil partnership and subsequently wish to emigrate.
5.4 Grounds for Dissolution
'Unreasonable behaviour' in the case of a marriage may include unreasonable sexual behaviour, and by now it is well-established what counts as such. But what would count as unreasonable sexual behaviour in a same-sex partnership? Since the government's proposals have studiously avoided stating that civil partnerships are sexual partnerships, the criteria for unreasonable sexual behaviour are unclear. For example, would there be an analogue of adultery? How would this be relevant if the partnership were purely economic? Are the courts to be expected to work out the criteria for themselves?
7.2 Changes to the Immigration Rules
We welcome the proposed changes. They will only affect a very small number of people, but the pain caused those few by the present disparity in the treatment of married couples and of same-sex partners is great. Three consequences, however, should be noted:
Registration will not prevent enquiry as to the genuine nature of the partnership, as happens now to avoid 'marriages of convenience', so yet again we need to know whether, for a partnership, sexual activity is a sine qua non or not an issue at all.
Our previous suggestion that the period of notice for registering a partnership should be longer than 15 days might make it impossible for a foreign national to stay long enough to qualify.
A marriage can be contracted almost anywhere in the world, but a civil partnership could only be registered in the UK. We suggest that this facility be extended to UK Diplomatic Missions abroad, where at least one partner is a UK citizen.
7.6-8 Enduring Power of Attorney
'No significant differences'. Why not simply 'no differences'? Is there an implied qualification here and, if so, on what points?
7.9 Incapacitated Adults
Since the proposal extends to all partners irrespective of legal status, it would restrict the freedom of someone who did not want to register a partnership (or marriage) because he or she did not want to confer decision-making rights on his or her partner in these circumstances.
7.11 Prisoners
Should this be restricted to subsisting partnerships prior to imprisonment? Here Partnership is far more open to abuse than marriage. Imagine two male child-abusers, in gaol. It is the first refuge of such unfortunate persons falsely to label themselves gay. They decide to form a Partnership on a purely cynical basis, having no love for each other, though that cannot be questioned, in order to meet to plot their future activities upon release and to support each other in trying to dupe the Parole Board that they are no longer a danger to others, for they now have each other. No certainty of success, but some will try - a most unpleasant prospect that will leave the government, legislature and gay community in a very bad light if just one case succeeds.
7.17 'next-of-kin'
The treatment of hospital visiting in 'Civil Partnership' is totally inadequate. In the whole range of topics covered by the document, the two that cause the greatest distress to lesbian and gay people are refusing medical information and visits to their partners (together with registration of deaths) and denial of tenancy succession. Granted that 'next-of-kin' is not legally defined in the context of hospital visiting, it nevertheless has a clear meaning in ordinary language: one's nearest relative. Unless explicitly warned to the contrary, someone admitted to hospital is likely to understand it in that sense, to be unaware of the legal niceties, and probably to be in no condition to think clearly about the consequences of how the question is answered. If, indeed, there is no law governing who can visit a patient in hospital, then this issue can surely be addressed within the NHS (with corresponding provision for private hospitals) without the need for legislation. Moreover, it can be dealt with immediately. What is needed is to replace the question about next-of-kin with a question asking, instead, whom the patient wishes to be informed in case of emergency, and for a list of people who may visit if general visiting is medically deemed to be inadvisable and/or receive information about his/her condition. Patients would then know exactly what provisions they are making and unnecessary distress be avoided. We have heard many unhappy stories about this, yet it seems that it would be quite easy to rectify.
Piecemeal Legislation
It is evident from 'Civil Partnership' that the government wishes, no doubt for strategic political reasons, to legislate for civil partnerships as far as possible in isolation from marriage, and perhaps there is no practical alternative to doing so for the present. However, it is already clear that much other existing legislation, upon which marriage has had an effect, will have to be amended. This shows that recognition of certain personal relationships by the state has pervasive consequences in many other spheres of life. It is therefore questionable how far legal recognition of a new form of personal relationship can be carried through successfully without looking at it in the context of relationships already recognised. The danger of piecemeal legislation is that it opens the door to unexpected and unforeseen consequences that are unwelcome. We have already drawn attention to one of these (apropos 4.21), and have noted another point (4.12) where a review of marriage law is desirable. Logically, there is a strong case for looking at legal recognition of personal relationships as a whole in order to devise appropriate legislation that will be both consistent and comprehensive.