Civil Marriage and Civil Partnerships

What civil marriage means in the context of the struggle for gay rights…


The subject of civil marriage between same sex couples has generated a vigorous debate from which ironically civility appears to be the one element that’s missing. Churchmen have been particularly unconstrained in colourfully expressing their views. And I defend their right to do so whilst deploring the language they’ve chosen to adopt. It has tended to obscure a debate which might have enlightened and informed. Instead ritual polemic has resulted only in things being said that are meant to wound. And that’s a great pity…

The church’s position is that ‘marriage’ is manifestly reserved for the complementary relationship between a man and a woman; its purpose is to ensure legitimate procreation in the loving unit we call the family. Baldly stated these assumptions seem blandly inoffensive. That being the case one wonders why it’s then necessary for its proponents to employ loaded language to make their argument.

Hyperbole is unreason’s friend.

The controversy over the government’s proposed changes to the law in respect of civil marriage and civil partnerships has ignited a debate in the UK that’s long been a firestorm in the USA. Civil marriage for same sex couples has become there a touchstone for two very distinct views of Christianity and social evolution.

It was President Clinton who signed the so called Defence of Marriage Act….in order to prevent Federal recognition of marriages contracted between same sex couples according to the laws of individual states. A number of the more liberal states had implemented civil marriage acts in their jurisdictions.

Marriage in the US constitution had long been a matter for each state. Indeed the laws that pertained into the 1960s forbidding inter-racial marriages – part of the complex legal web of segregation – stood unchallenged for a century after slavery was abolished precisely through exploiting State’s rights in relation to marriage laws. And as those laws stood unchallenged so, the Catholic Church stayed silent about the iniquity of such marriage laws.

The counter culture of the 1960s which gave birth both to the women’s movement and the gay rights movement was seen by those opposed as vehicles for liberal extremism. Some went as far to openly declare that AIDS was God’s punishment of gays for their social and sexual militancy. And though these views are now rarely expressed they often undergird the prejudicial language routinely employed by opponents of gay civil rights.

Therefore, Cardinal O’Brien’s unfortunate comments linking these issues of the propriety of same-sex civil marriage to slavery were particularly inflammatory. It’s also unfortunate to make such linkage given that the insitutional Catholic Church sustained a legal view for almost a thousand years that slavery or bondage of the un-baptised was indeed a legitimate form of property ownership. And indeed upon that very basis divided South America between the Spanish and the Portuguese.

The notion that the church has always expressed the same views on socio-economic and legal arrangements in society is incomplete. And whatever sacramental theology attached to a marriage contracted within the Catholic Church or the Christian church in general, civil marriage is also a legal reality within the state and it has its own history stretching back through Roman times into ancient civilisations including those of the Greeks and Jews. The status of the Emperor Hadrian’s male partner was unremarkable in the context of Roman society, law and practice. Legal recognition of many sorts of relationships is central both to human condition and human law. Although their histories inevitably have been enmeshed religious and civil marriage ought not to be confused.

I’m ill qualified to make detailed arguments in relation to these but I can refer both proponents and opponents to John Boswell’s seminal study: Christianity, Social Tolerance and Homosexuality: Gay People in Western Europe from the Beginning of the Christian Era to the 14th Century (Yale UP) and also his later study: Same Sex Unions in Pre Modern Europe (Random House, NY,1994). The former should be required reading for any undergraduate historian as it ably sets out the multi-layered nature of  evidence in composing a history of human sexuality and the latter at least acquaints the less informed general reader of the problem of finding the exact meaning of words let alone understanding the past wherein they were commonly used. Translations cannot easily convey a word’s intricacies and subtleties.

Equally translations can be used as a vehicle to read back into historic language and societies contemporary concepts and modern social assumptions that have no place there. And nowhere is that more fraught than in the field of human sexuality. We think our conceptualisation of human sexuality into heterosexuality and homosexuality is implicit to the human state. It isn’t.

And our ideas of ‘marriage’ for example would be almost incomprehensible in the Greco-Roman world where commonplace sexual relations with concubines, menials, servants and slaves necessarily was distinct from a civil marriage – where obligations and rights accrued to both parties – even though all the consequences from such activities – like procreation – might easily follow from them. Even when Aquinas was writing, slavery, serfdom, and manorial obligations as well as concubinage and polygamy were still commonly practises in a society that had nominally been Christian for a thousand years.

Things are rarely simple. Those who pretend they are are either seek to persuade by deceit or are ignorant. And the institutional church’s silent consent blessed the ‘legal’ persecution of gay men in particular over more than a hundred years – with all the cultural consequences for the peoples and cultures of Africa, the Americas and Asia that flowed from this inappropriate imposition of the cultural values of the European Imperial powers on other peoples. The self-restraint of silent reflection might better suit the circumstances in which we now find ourselves rather than the unguarded freedom they’ve given to their speech.  

Even today the term ‘Marriage’ is an complex concept. It’s universally assumed that everyone knows what constitutes both marriage and its obligations. It’s equally universally asserted that these have always been the same. Yet given the number of cases before the courts over every aspect of marriage from property to child visitation rights and partner and child abuse; and given that within the Catholic Church’s own jurisdiction there are similarly questions of what constitutes a legal of marriage continuously being placed before the annulment tribunals; it is as therefore as universally evident that even the two contracting parties to a marriage – who might be thought to be best placed to understand its nature and obligations – are just as prone to misunderstand them.

Thus whatever any of us are inclined to believe it’s surely misleading of Cardinal O’Brien – and others who might be thought to know better – to pretend that marriage as a concept and legal fact isn’t surrounded by complexities and subtleties at all times and in all societies way beyond blithe assertions that  the term ‘marriage’ has a normative, simple, single and widely agreed meaning.

Civil marriage is a legal state and it reflects most usually the characteristics and priorities of the cultural climate pertaining in society at any time. A hundred years ago a divorced woman was an abomination…a social pariah. Today divorce is not taken to reflect any failure of moral character by either party.

And, the church, of all our historic cultural institutions, ought to be most fully aware of these manifold cultural and historical complexities. The history of annulments and divorces repeatedly revisits the niceties of legal process with complexities of human intention. Moreover the theology of Christian marriage itself has developed over centuries and through different societies and times. Indeed at times its status as a sacrament has even been questioned by those who would have described themselves as Christians. And most recently the Church of Jesus Christ of the Latter Day Saints (Mormons) have engaged in a famous dialogue over polygamy and the nature of marriage.

Henry VIII’s vain attempts to obtain an annulment of his marriage to Catherine of Aragon was infused as much by the political realities surrounding it as by the doctrinal issues with which it subsequently became associated. And the papacy itself made all manner of suggestions that for example might have allowed Henry to proceed to a second marriage without yet fully dissolving the first. The king’s great matter foundered less on the doctrinal inflexibility of Catholicism’s certainties with regard to the nature of marriage than upon the king’s inflexible belief that the only grounds for annulment rested in his interpretation of the certain prohibitions of Leviticus.

At the very time Henry failed to obtain his annulment, his sister, Margaret, sometime Queen consort of King James IV of Scotland,  no less properly obtained from the same Pope (Clement VII, Medici)  a separation from her second husband –  making way for a third marriage to a man to whom she was probably adulterously pre-contracted. The royal families and great catholic families have rarely found the church wanting in provisioning them with a legal means both to end one inconvenient marriage and to contract the next. To pretend otherwise is to play fast and loose with facts.

Of course the argument runs that the term marriage has always and at all times been reserved for heterosexual relations and in the view of the Catholic Church specifically also with the intentional purpose and possibility of procreation….although, as I understand matters, this would not preclude a man marrying a woman who had a full hysterectomy and therefore had no likelihood of ever possibly having children.  And the illustration itself reveals a revealing inexactness in its exact definition.

Personally, I’m of the view that the historical accident that has co-joined religious and civil marriage ought to be permanently annulled. Perhaps campaigners might willingly leave the word ‘marriage’ to the church and everyone should be required to contract a Civil Partnership with equal rights before the civil authorities. But this begs the question who owns the word marriage and its meaning. If my proposed solution is taken to mean that gay men and women are not entitled to equity and equality in their relationships before the civil authorities that outcome must be unacceptable.

Many of those who now speak up for ‘marriage’ as meaning only what they wish it to mean have steadily opposed the advance of gay rights at every turn and used every means to prevent the its legal achievement. As our equality is not bestowed it cannot be for them to award to us some diminished status before the law. And if civil marriage is the only vehicle to ensure that society takes our human, sexual and personal freedom seriously then so be it – after all we endured unrelenting legal persecution for long enough to understand the importance of the law in the affairs of the heart and in the affairs of state.


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