Post authored by Nicola Barker Wed 6 Feb:
It would be easy to dismiss Sir Roger Gale’s ‘Alice in Wonderland’ speech in Parliament yesterday (http://www.itv.com/news/meridian/update/2013-02-05/south-thanet-mp-is-fierce-critic-of-gay-marriage/) as that of a man who is so homophobic that he would rather abolish the legal institution of marriage entirely than allow same-sex marriage. After describing the idea of same-sex marriage as ‘Alice in Wonderland territory – Orwellian almost’, he goes on to say:
‘…if the Government are serious about this measure, they should withdraw the Bill, abolish the Civil Partnership Act 2004, abolish civil marriage and create a civil union Bill that applies to all people, irrespective of their sexuality or relationship. That means that brothers and brothers, sisters and sisters and brothers and sisters would be included as well. That would be a way forward. This is not.’
However, he has unwittingly made an argument that represents the views of some members of the lesbian and gay communities who have not taken part in the mainstream debates on same-sex marriage. The debate has largely been between conservatives: those who support same-sex marriage because they are conservatives and those who oppose same-sex marriage because they are conservatives. There is little intervention from those who are not conservatives, who oppose same-sex marriage because marriage is conservative. Yet this argument has been made within the lesbian and gay communities for decades. As far back as 1971 the manifesto of the Gay Liberation Front positions marriage as at the centre of the patriarchal family and the very root of the oppression of gay people. Marriage remains at the root of the oppression of alternative families and of women within ‘traditional’ families. The absence of legal regulation of same-sex families led to much more interesting and radical family forms within the gay and lesbian communities: friendship networks creating families of choice, and by necessity, resolving family breakdown outside of the court structure (something that the current government are keen to encourage through the withdrawal of legal aid for all but a few family law issues).
Sir Roger Gale’s endorsement of the view that it might be better to abolish civil marriage than recognise same-sex marriage is not new to those who are in fact ‘militant homosexuals’, as Sir Roger wrongly described gay marriage advocates on his website last year (http://www.rogergale.com/content_manager/page.php?ID=103551&dbc=5d891f7e77bd7e9af103b108f88afc7f). It is ironic that someone on the right wing of the Conservative Party is endorsing a proposal that has been made by several feminist academic family lawyers, including myself. Our reasons for proposing the abolition of the legal institution of marriage (‘civil marriage’) could not be more different from those of Sir Roger Gale, and though a ‘civil union’ that is open to all, including siblings, is an interesting proposal, it lacks imagination. This sounds too much like a re-run of the various wrecking amendments that were attached to the Civil Partnership Bill by some of his Conservative colleagues and removed before the Bill passed in 2004. That series of wrecking amendments would have allowed siblings and others too closely related for marriage to enter into a civil partnership if they meet certain conditions. This was unworkable for a number of reasons, not least that it would have required a divorce-like process for siblings who wanted to marry or civilly partner someone they love; and it would have been limited to two siblings. What about a family of three or more siblings? Which sibling would have been excluded from the tax breaks of civil partnership?
Instead, I would recommend that Sir Roger Gale endorse the approach taken by the Law Commission of Canada in 2001. They proposed that the legal rights and responsibilities of marriage be rationalised through asking the following four questions of each individual legal right/responsibility. To paraphrase their Beyond Conjugality report:
1. Are the objectives of the law still legitimate? If not, it should be repealed or fundamentally revised.
2. If a law is pursuing a legitimate objective, are relationships relevant to the objective in hand? If not, then the law should be revised to allocate the rights and responsibilities on an individual basis.
3. Assuming that relationships are relevant, could the law allow individuals to decide which of their close personal relationships should be subject to the law?
4. If relationships do matter, and self-definition of relevant relationships is not a feasible policy option, is there a better way for the government to include relationships?
From a conservative point of view, this model means that the state would not ‘endorse’ gay marriage, in fact marriage would no longer exist as a legal institution but rather, as Sir Roger Gale prefers, left to the various religious bodies to celebrate as they wish. From a feminist point of view, the deeply problematic legal institution of marriage is abolished and replaced with a more rational means of distributing various legal rights and responsibilities based on the objectives that the law is trying to achieve and better directed towards those individuals or relationships that need them.
The Canadian Parliament did not take up these proposals but perhaps Sir Roger Gale would be interested to explore them further in the UK. It would be an unlikely coalition but it seems that I may have more in common with a Conservative MP than one might expect.
Dr Nicola Barker is senior lecturer at Kent Law School and author of Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage (Palgrave, 2012).