Confusing
Uniformity with Equality
Part of the case against gay
marriage is that equality can be, and has been, achieved without the need to
legalise gay marriage. After all, they
have civil partnerships which confer the same rights in terms of property and
finances as married couples enjoy. What
more could they want?
Civil partnerships were a
huge step forward for the gay rights movement but I can’t help thinking that
they were a bit like the ‘Women’s Bar’ at the golf club. Fortunately, that is not something you see
much of these days but there was a time when, as long as the facility was
provided (even if it was through the back door or on the other side of the car
park), it was considered that you had complied with the need for equality. But that is a false equality. Even if the Women’s Bar is just as grand,
what is wrong with the women using the Main Bar (almost never referred to as
the Men’s Bar) and participating in that particular part of the club’s heritage?
Uniformity is not always
necessary to achieve equality. That is
true. In fact, in some cases a non-uniform approach may be necessary to ensure
that equality is achieved. But the
question here is whether the non-uniform approach of providing gay couples with
civil partnerships and straight couples with marriage achieves equality. I submit that it does not.Is a Civil Partnership Equivalent to a Marriage?
No.
It is not before God, it
does not have the same social and historic connotations and, whilst I cannot
speak for those who have entered into a civil partnership, my own experience of
marriage is something quite profound.
There is nothing quite like referring to my ‘husband’ and being called
his ‘wife’. I’d hate to deny anyone that,
no matter who their choice of partner is.
I have seen it suggested
that there is a fundamental difference between a gay couple and a straight
couple that needs to recognised and accommodated in law and religion. I do not accept that that stands up in this
modern society.
Whilst there may be
arguments that marriage, in the traditional sense, is rooted in a need to
create offspring and a suitable environment within which to raise them, that is
simply not the case anymore. Not every
straight couple who marries chooses to have children and not everyone who has
children chooses to get married.
Furthermore, every couple
will be different no matter what its composition. Every two people in a relationship will have
their own way of loving each other, expressing that love and building their
lives together that will be unique to them.
Even if there is an inherent difference in the way in which two men or
two women relate to each other, as compared to a man and a woman, it is a
completely arbitrary test and it cannot be considered grounds for determining
what legal rights they are entitled to.
Same
old, same old.So what of those challenges that the family practitioner may face when dealing with gay marriage? Let’s take s.25 of the Matrimonial Causes Act 1975; we know from Lawrence v Gallagher [2012] EWCA Civ 394 that the courts will not be treating the dissolution of a civil partnership any differently to the breakdown of a marriage. It is possible that there may be various factors to consider that will come up more often in same sex relationships, perhaps in relation to children (IVF or surrogacy disputes), or consideration of contributions to the ‘marriage’ that might require a further re-evaluation of the traditional relationship stereotypes. In that regard, it may widen the scope of issues that practitioners may have to consider when advising clients but ultimately, there will be few new challenges that family practitioners don’t already face in dealing with the wonderful array of colourful characters, with their quirks, questions and unique relationships arrangements, who come to us for advice on the breakdown of traditional marriages or civil partnerships.
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