Gay marriage and the tyranny of sameness

Barrister Jon Holbrook says equality is no longer a progressive demand but rather is used to demolish differences between people.

Jon Holbrook

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Topics Politics

One of the most overused words in the political lexicon is ‘equality’. A word that has historically been used to fight for progress is now being used to promote a tyranny of sameness.

In the following two paragraphs note the italicised word.

Equality is at the heart of this coalition government’, says the Liberal-Conservative government’s 2010 Equality Strategy, produced by the Equalities Office. The following year, prime minister David Cameron told the Conservative Party conference that the government would consult on gay marriage. And to ‘those who had reservations’ he said gay marriage is ‘about equality’. The government’s consultation document called gay marriage ‘equal civil marriage’, and the ministerial forward, co-written by the equalities minister, stated that the idea of gay marriage came from those ‘who sought equal access to marriage for same-sex couples’.

When the Lib-Cons’ new equalities minister, Maria Miller, promoted the government’s equal marriage legislation in the House of Commons in February, she justified it on the grounds that ‘parliament should value people equally in the law’. She was interrupted by Sarah Wollaston, Conservative MP, who sought to simplify matters by stating: ‘Surely the crux of the debate is the question of whether we accord equal rights … to people regardless of their sexuality.’ When Miller sat down, Yvette Cooper, for the Labour Opposition, stood up and supported the legislation as being the ‘next step for equality’.

Gay marriage, it seems, is all about equality. To deny lesbians and gays the right to marry is to deny them equal status, equal rights and equality before the law. The argument is won, so its proponents claim, by associating gay marriage with the e-word.

‘Equality’ is one of those words loaded with positive connotations, like ‘justice’, and ‘fairness’. (A previous generation would have likened it to ‘motherhood and apple pie’, but ‘motherhood’ is nowadays too unequal an expression to be utterable.) Equality’s opposite, ‘inequality’, is loaded with negative connotations, and in the civil rights context inequality is usually a small step from bigotry and prejudice. In the black-and-white world of British politics, one is either in favour of equality, which is good, or in favour of inequality, which is bad. Gay marriage, or equal marriage as the government prefers to call it, is good because it furthers equality. To be against gay marriage is bad because it means treating people unequally on grounds of sexual orientation.

Yet there are many people who are against gay marriage who are neither bigoted nor prejudiced. Many of them would have supported the decriminalisation of homosexuality in the 1960s and been against the Thatcher government’s Section 28 in 1988, which sought to prevent local authorities from ‘promoting homosexuality’. Something has happened to cause those who would have campaigned for equal rights in previous decades to sense that the campaign for gay marriage is different today.

There is a difference. In previous decades, lesbians and gays were oppressed. They were systematically denied equal rights. The law not only treated them differently; it treated them as inferior. With a regulatory background of inferior treatment, social attitudes tended to see homosexuality as something of a problem that at best was tolerated, in private, and at worst outlawed. This was an era when equality meant ending the oppression of lesbians and gays. Equality in this era was progressive and liberating.

Lesbians and gays are no longer oppressed. Indeed, the word ‘oppressed’ has fallen into disuse, save to describe the citizens of foreign regimes. Oppression is no longer used in the lesbian and gay context because the demand for equal rights has been won. In this era, equality has no progressive or liberating role to play.

In previous decades, lesbians and gays were systematically denied equal rights and society as a whole viewed homosexuals as second-class citizens. Under the Buggery Act, which was in force from 1533 to 1861, some homosexual activity carried the death penalty. In 1895, Oscar Wilde was sentenced to two years’ hard labour for ‘acts of gross indecency’. In 1956, 118 out of 300 convicted men in a consenting gay relationship were prosecuted and sent to prison. The word ‘oppressed’ aptly described the lesbian and gay communities’ experience. This was an era when taking a stance in support of equal rights required courage and a willingness to court considerable unpopularity.

But over the past 50 years, social attitudes have changed and discriminatory laws have been repealed. In 1967, the Sexual Offences Act legalised homosexual acts in private between consenting adults. The Sexual Offences Act 2003 equalised the age of consent for gay and straight sex and also removed the condition that gay sex was legal only if it was in private (1). Gay couples have been able to adopt children following the passing of the Adoption and Children Act 2002; and under the Human Fertilisation and Embryology Act 2008 they have access to fertility services and full parentage of donor-conceived children.

The removal of formal inequality has been accompanied by a huge change in social attitudes. In 1977, the editor of the newspaper Gay News was prosecuted at the Old Bailey for blasphemy after he published a homoerotic poem about Christ written by Professor James Kirkup. The editor’s nine months’ suspended prison sentence and £500 fine, and the publisher’s £1,000 fine, were upheld by the House of Lords. Geoffrey Robertson, the barrister acting for one of the defendants, describes the inequality that was played out between the prosecution and defence in 1977. He notes the defendants’ difficulty in securing character witnesses at a time when there were no known gay MPs. Later that year, the first MP was ‘outed’ by the press, which treated Maureen Colquhoun’s lesbianism as a scandal disqualifying her from public office. Robertson notes that although there were quite a few gay barristers, ‘none came within a mile of us’.

The Gay News conviction illustrated the formal and informal denial of equal rights to lesbians and gays. The homoerotic poem was deemed offensive and worthy of a criminal sanction because of social attitudes towards homosexuals. Times have changed, and in 2002 there was a defiant public meeting in London, including George Melly and Peter Tatchell, where the offending poem of 25 years earlier was read. Nobody was prosecuted. But if they had been, the defendants would have had no difficulty securing character witnesses who could have included any number of openly gay MPs. Reflecting on how he was cold-shouldered by the bar in 1977, Geoffrey Robertson, writing 20 years later, noted how the bar now had ‘a flowering gay and lesbian movement, with annual lectures presided over by High Court judges’ (2).

The Civil Partnership Act 2004 has met the legitimate desire of lesbians and gays for an institution comparable to marriage. As Baroness Deech, an expert in family law, has noted, civil partnerships differ in law from marriage in only two respects: they can only be civil, never religious, and adultery is not a ground for dissolution (3). The first difference is rarely cited as problematic, but in so far as there are churches that want to preside over civil partnerships that could be achieved with modest legislative reform. The second difference, adultery, is a difference that remains in the new Marriage (Same Sex) Couples Bill. So the minor legal differences between civil partnerships and marriage provide no basis for the government’s gay marriage legislation. To all intents and purposes, civil partnership affords lesbians and gays equal treatment.

The e-word had its place when there were inequalities that needed to be challenged. But in an era of equal rights, equality is being redefined. Instead of being used to challenge oppression, it is now used to challenge difference. In place of difference, equality seeks sameness.

The restless desire to challenge difference in the name of equality knows no bounds. One week Maria Miller said that the same-sex nature of civil partnership was not under review. The following week she said it would be reviewed five years after the Equal Marriage Bill, as she called it, became law.

Miller is applying the relentless logic of those who deplore difference. As the co-chairs of the Bar Lesbian and Gay Group put it, ‘Our preference … is for all couples to have the choice to enter into a civil partnership or a marriage’ (4). This is ‘choice’ about two shades of grey. Currently lodged with the European Court of Human Rights is a petition from a heterosexual couple challenging UK laws that don’t allow them a civil partnership. In a joint statement the pair said: ‘In a democratic state, all institutions should be opened to all people.’ The gay rights campaigner Peter Tatchell said: ‘Although I have spent much of my life campaigning against homophobia, I am equally opposed to heterophobic discrimination. I applaud Katherine and Tom and support their bid for heterosexual equality.’

Tatchell’s notion of ‘heterosexual equality’ as an antidote to ‘heterophobic discrimination’ is telling. Having not been prosecuted for being at the 2002 reading of James Kirkup’s homoerotic poem, Tatchell is now demonstrating the ubiquitous nature of equality. The battering ram of equality can be applied to civil partnership just as easily as to marriage.

Equality is nowadays used to challenge difference. Distinctions drawn on the basis of sex, sexual orientation, race and age, to name but a few, are now ripe for challenge in the name of equality. What’s next to be challenged: Cheaper car insurance for women drivers? Mother’s Day? Ladies’ nights in a bar? Ladies-only toilets? As it happens, the first of these things – cheaper car insurance for more careful drivers – has already been outlawed on the basis of ‘equality’. And as I have pointed out elsewhere, the other ‘sexist’ institutions mentioned above have already been challenged in American courts by those campaigning for equality.

Stripped of its use as a force for challenging oppression, equality has no progressive content. In the hands of today’s equality campaigners there are few institutions or practices that cannot be challenged on the basis of their inequality. These campaigns challenge our ability to define, to distinguish and to be different.

It is often said that ‘once the equal-marriage proposals are implemented and the sky does not fall in’ further reforms in the name of equality will be made. That’s precisely the problem. Today’s campaigners proclaiming the need for equality have no respect for difference. Those who do not want to live in their world of grey sameness should take a stand against gay marriage.

Jon Holbrook is a barrister in London.

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