A marriage that dare not speak its name

‘Is there a more attractive term to use than “registered partner”? (Feel free to be creative!)’

This question, lurking at the back of the UK government’s recent consultation document on new rights for gay couples, sums up the problem at the centre of New Labour’s crusade for a form of gay marriage. A ‘more attractive term’ than ‘registered partner’ is, obviously, ‘husband’ or ‘wife’ – and the fact that the government refuses to use these terms means that its justification for these proposals will have to be creative indeed.

On 30 June, the Women and Equality Unit at the Department for Trade and Industry (DTI) published ‘Civil Partnership: A framework for the legal recognition of same-sex couples’ (1) – which, in snappier terms, amounts to a proposal for gay marriage. The 90-page document contains sections on ‘The registration process’ (the marriage ceremony), ‘The dissolution process’ (divorce proceedings), and ‘Rights and responsibilities’ (marital rights and obligations).

For anybody who currently is married, the document is essential reading. Did you know that if your spouse dies you get a Bereavement Benefit worth £2000 ‘to help with the costs arising on bereavement’, or that, in the event of an inquest into your spouse’s death, you have the right ‘to be notified of the date, place and time of the inquest or the resumption of an adjourned inquest’? (2)

But what interest the document holds for the gay couples supposedly set to benefit from this new legislation is anybody’s guess.

In her foreword to ‘Civil Partnership’, government minister Jacqui Smith makes much of the unfairness of the current situation, in which couples in a long-term homosexual relationship cannot make a formal, legal commitment to each other. ‘These relationships span many years with couples looking after each other, caring for their loved ones and actively participating in society; in fact, living in exactly the same way as any other family’, she says. ‘They are our families, our friends, our colleagues and our neighbours. Yet the law rarely recognises their
relationship.’

Clearly, some gay couples find this situation objectionable. More important, from society’s point of view, is that this is an issue of equality. No matter how much society professes its acceptance of people’s sexual choices, a situation that refuses to allow gay couples to marry shows that their choices are accepted only up to a point.

But this is an argument for gay marriage. What it is not is an argument for the government’s Civil Partnership scheme – which, in effect, is marriage that dare not speak its name. While every proposal laid out in ‘Civil Partnership’ is about creating a framework through which gay couples can have all the rights and obligations of marriage, the document sternly insists: ‘It is a matter of public record that the government has no plans to introduce same-sex marriage.’

By opting for a form of gay marriage that dare not speak its name, the government presumably hopes to appease everybody and offend nobody. The Church has its own problems dealing with the reality of homosexuals in its ranks – it would have quite a bit to say about having to marry gay couples. The view seems to be that, if you can let same-sex couples have the perks and problems of marriage without upsetting traditional moralists, so much the better. And by holding back from extending the civil partnership proposal to cohabiting heterosexual couples (or opposite-sex couples, as the document persists in calling them), there is an attempt to avoid the complications bound up with a broader cohabitation law.

What the government has ended up with, however, is a convoluted legal framework that formalises inequality, and satisfies nobody. Furthermore, in doing so it has managed to strip marriage, and the aspiration for gay marriage, of most of its mystique and all of its romance.

‘We would ask the question: what are the differences between the government’s same-sex civil “partnerships” and civil “marriage” for heterosexuals. Why should they be different for heterosexual and gay and lesbian couples?’ said a spokesman for the Lesbian and Gay Christian Movement, quoted in the Guardian. Veteran gay rights activist Peter Tatchell called the proposals ‘sexual apartheid’, and said: ‘The government has opted for a two-tier partnership system that perpetuates discrimination.’ (3)

Well, quite (if not quite ‘sexual apartheid’). Whatever you think about the idea of a special form of ‘civil partnership’ for homosexual couples, in equality terms it sucks. The message it gives to society is nothing short of schizophrenic: gay couples are just like us, they live ‘in exactly the same way as any other family’ – yet they cannot be treated in the same way as any other family, they need a special law. You would think that even the DTI could work this essential contradiction out for itself. So why, if it wasn’t going to make things equal, has it bothered playing with the law at all?

After all, it’s not as though there has been a passionate and vocal campaign among gay groups even for a gay couple’s right to marry – let alone for the uninspiring ‘civil partnerships’ proposed by the government. And if you believe the government’s own projections, it’s not as though many gay couples stand to benefit from the scheme.

When attempting to assess the likely take-up of its scheme, the consultation document comes up with one conclusion: that nobody really knows. ‘There is little reliable data in relation to the lesbian, gay and bisexual population so the government has had to make a number of assumptions in calculating the likely take-up of civil partnership registration in England and Wales’, the document complains (4).

It goes on to give two scenarios – a ‘high take-up scenario’, in which it is assumed that ‘the proportion of civil partnership registration in the lesbian, gay and bisexual population would be the same as the proportion of marriages in the heterosexual population’; and a ‘low take-up scenario’, based on ‘existing evidence from the take-up rates of schemes in the EU and schemes without legal status in England and Wales’.

The result? That the rate of civil partnership registration in the lesbian, gay and bisexual population could be 33 percent (‘high take-up’) – but is more likely to match the low take-up scenario of 3.5 percent, which the document suggests is 10 percent of the marriage rate in the heterosexual population.

With a projected take-up rate of 3.5 percent, the demand for a civil partnerships scheme clearly has not come from gay couples wanting to have their relationship with each other formally recognised. It seems more like a result of the government’s desire to form a relationship with certain gay couples, and to promote the virtues of responsible behaviour by institutionalising it in law. The consequence is a form of marriage re-presented as a distinctly unappealing contract: a behavioural and financial agreement, with all pretence of romance stripped away.

So, as with marriage, gay couples entering into a civil partnership will have legal and financial rights: to do with pensions, benefits, inheritance tax, child custody and various other aspects of a shared everyday life. But when straight people get married, they do not read the small print and sign on the dotted line to say that they have accepted the terms and conditions. Even the most basic of civil ceremonies comes with the trappings of tradition, celebration, and the sense of starting a new life: none of which can be straightforwardly imported into a stark new legal agreement called a ‘civil partnership’.

When (and if) gay couples express a desire to get married, it is fair to assume that at least part of the appeal comes from these more subtle, emotional and human aspects of tying the knot. By presenting a civil partnership scheme in purely contractual terms of inheritance rights and benefit benefits, the government’s proposals miss this point entirely.

Jacqui Smith might think that the main problem facing gay couples is that ‘the law rarely recognises their relationship’ – but the problem so far as many gay people are concerned is that society does not treat them, and their relationships, equally to others’. Slapping a law on to these relationships is not going to solve the problem – indeed, by institutionalising a legal difference between gay partnerships and married couples, it risks exacerbating it.

Furthermore, a crucial aspect of marriage is that it represents trust between two people – two become one, and in doing so they trust the other partner with their love and their life. The government’s civil partnership scheme, by contrast, institutionalises distrust. ‘The government proposes to protect people from unwarily entering into relationships that are not exclusive’, states the consultation document, before going on to give a check-list of the rules and restrictions designed to ensure that gay couples registering a partnership are not engaging in civil forms of bigamy, infidelity, incest or other forms of irresponsible behaviour.

In essence, this might mirror the legal restrictions surrounding the marriage process. But there is a world of difference between the law against bigamy and the understated commitment of ‘I do’ to something like the proposed clause on ‘Prohibited Degrees of Relationship’:

‘People wishing to register a same-sex civil partnership would be prohibited from doing so if they were related by close blood or half blood ties, adoption (in particular circumstances) or were related by degrees of affinity (relationships arising out of either their former marriages/registered partnerships or those former marriages/registered partnerships of certain relatives).’ (That’s even before you get to the reasons why a civil partnership could be declared void: which include ‘one partner being pregnant by a third party without the other’s knowledge’.)

It is almost as though the authors of the ‘Civil Partnership’ consultation document started out with the thought that it might be quite nice to let gay people have some form of marriage, and spent the rest of the time worrying about how they might abuse the system.

There is a great deal more to object to within the ‘Civil Partnership’ scheme. But the overriding objection is that this proposal is a monumental waste of time and energy. For reasons best known to itself, the government is creating an institution of gay sort-of marriage for which there is no demand, and in which there is no appeal. One thing, at least, has not changed: when it comes to gay couples, the best thing the state can do is leave them alone.

Jennie Bristow is author of Maybe I Do?: marriage and commitment in singleton society, published as part of the Institute of Ideas’ Conversations in Print series. Respondents to her essay include Fay Weldon (novelist), Yvonne Roberts (author), Ed Straw (Relate), Barb Jungr (chansonnier), Eddie Gibb (Demos), Mary Kenny (author), Helen Wilkinson (Genderquake), Piers Benn (philosopher), Bel Mooney (author) and Dolan Cummings (Institute of Ideas).

To order a copy, email info@instituteofideas.com, telephone 020 7269 9220 or see the Institute of Ideas website

Read on:

Wedding stress, by Jennie Bristow

Singleton society, by Frank Furedi

Lord Irvine: Love Doctor?, by Jennie Bristow

(1) Civil Partnership: A Framework for the Legal Recognition of Same-Sex Couples (.pdf 1.35 MB), Department for Trade and Industry, June 2003

(2) Civil Partnership: A Framework for the Legal Recognition of Same-Sex Couples (.pdf 1.35 MB), Department for Trade and Industry, June 2003

(3) Legislation for same-sex couples aimed at forcing culture change, Angelique Chrisafis, Guardian, 1 July 2003

(4) Civil Partnership: A Framework for the Legal Recognition of Same-Sex Couples (.pdf 1.35 MB), Department for Trade and Industry, June 2003