SCOLAGL E G A L J O U R N A L

EXTRACT PAGES

Issue: 405

PUBLISHED: July 2011

PAGES: 162-164

TITLE: Strange Bedfellows in the Pro-Marriage Campaigns

AUTHORS: Brian Dempsey

CITE AS: 2011 SCOLAG 162-164

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Page 162 2011 SCOLAG (July)

Family Law Adult Relationships

Demands for the opening up of marriage to same-sex couples are on the increase in Scotland and the Scottish Gov-

ernment is now committed to consulting on “same-sexmarriage”.1 What appears to be absent in Scotland as yet is anydebate on whether the adoption of a pro-marriage demand asa political tactic is appropriate for LGBT communities or forsociety as a whole. This article was prompted by the Equalitiesand Human Rights Commission in Scotland’s recent documentEqual Access to Marriage: Ending the segregation of same-sex cou-ples and transgender people in Scotland2 (the EHRC Report) andthe author’s experience of the EHRC’s symposium on the topicin January where any expression of doubt as to the validity ofa pro-marriage stance was very much frowned upon.

ProgressFor thirty years Scotland has seen sustained, progressive

reform of family law which has reduced the role of marriage inlegal recognition of responsibilities and rights. In adult rela-tions we have had acceptance that, e.g., protection fromdomestic abuse should not depend on the couple being mar-ried.3 Children are no longer labelled as bastards by the lawand their welfare is no longer widely undermined by rules re-lating to the marital status of their parents.4

We have also seen recognition of same-sex couples in areassuch as domestic abuse, delict and, of course, the new status ofcivil partner.5 We have even had limited recognition of the in-terests of unmarried and unempartnered cohabiting couplesand their children in the Family Law (Scotland) Act 2006.

All of this significant and welcome progress has been aboutmoving away from making responsibilities and rights depend-ent on a person’s marital status. All of it has been done in theface of opposition to equitable, progressive reform on the partof reactionary pro-marriage forces which assert that the “spe-cial status” of marriage in society must be preserved in politicaland policy discourses and, if possible, in law. One of the (un-fortunately necessary) costs of devolution has been theencouragement of right-wing political forces such as the Chris-tian Institute, CARE Scotland and the Evangelical Alliancewhich have opposed every proposed reform that is not predi-cated on promoting marriage.

These organisations are entitled to take a dim view of pro-tections for unmarried adults or of equal treatment of childrenregardless of whether they are (in their terms) legitimate orillegitimate, but, thanks to the efforts of politicians and aca-demics who have argued against pro-marriage laws and policiesand in favour of “equality for all” regardless of marital status,such pro-marriage campaigners have had little success in re-sisting progressive legal reform. But that does not mean thatdiscriminatory law and policy, with its “marriage as gold stand-ard” mantra at its core, cannot make a comeback. Whileultimately unsuccessful in stopping progressive reform, pro-marriage forces have had some success in influencing individualpoliticians and the overall political discourse6 and, along theway, have caused untold damage to individual LGBT lives by,e.g., their support for the hateful “Keep the Clause” campaignagainst repeal of Section 28.7 In Scotland politicians have beenforced to pander to the pro-marriage agenda by asserting the

“special status of marriage” in consultation documents, legis-lative memoranda and parliamentary debates as the price forattaining progressive reform. In the UK the Conservatives arenow in government having stood on a “pro-family/pro-mar-riage” platform which would have damaged the lives of adultsand, more especially, children living “outside of wedlock”:while a Tory victory in Scotland is unlikely the possibility of alurch to the right which would allow for pro-marriage attackson modern, equitable law and policy cannot be ruled out.

But now we are seeing a new set of people taking up thecudgels for the “special status of marriage”. Having previouslysupported civil partnership for same-sex couples and rejectedcampaigning for the opening up marriage, LGBT rights organi-sations such as the Equality Network are now pressing for whatthey frame as “equal marriage”.8 In this they have the supportof some politicians including Patrick Harvie MSP who has doneas much as anyone in the Scottish Parliament to promote therights of LGBT people and has also been an outspoken critic of(and particular target of) right-wing, pro-marriage politicalcampaigners. This embracing of marriage as the “gold stand-ard” of adult relationships is a surprising and disappointingdevelopment.9

The problem with pro-marriage campaignsThe problem with these campaigns is that they are based

on discrimination against adults and children who are not infamilies headed by a married couple. While we are fortunateto live in a jurisdiction that, in domestic law, has swept awaymuch of the legal discrimination against those who are notmarried, some legal discrimination persists and denigration ofunmarried couples and their children remains widespread insome areas of political discourse and in many areas of the media.

Pro-marriage activists, whether of religious fundamental-ist bent or LGBT persuasion are attracted to marriage becausethat institution is privileged in society, because it has “specialstatus”. Leading LGBT activist, Tim Hopkins, made clear that,despite conferring all the responsibilities and rights of mar-riage, the status of civil partnership “is an inherentlysecond-class status” (EHRC Report, p18). The pro-marriagecampaigners who want marriage opened up to same-sex cou-ples want it because married couples are seen as, and are oftentreated as, “first class” – “first class” compared to “second orstandard class” unmarried couples, “first class” compared to“second or standard class” single parents, “first class” com-pared to “second or standard class” civil partners.

One concrete example from the UK election campaign il-lustrates the issue nicely. During the campaign the Toriesproposed a small tax break for married couples.10 Critics rightlypointed out that this pro-marriage policy would harm adultsand children in other family forms. But because of human rightsbased discrimination law, any privileging of married couplesand their children over unmarried couples and their childrenwould almost certainly have had to be extended to civilpartnered couples and their children. So a strange sort of equal-ity would have ensued – equality of privilege as between adultsand children living in married or civil partnered while promo-tion of discrimination and harm against adults and children

Strange Bedfellows inthe Pro-Marriage CampaignsBrian Dempsey* considers the pro-marriage campaign being pursued by LGBT organisations

2011 SCOLAG (July) Page 163

not living in those “gold standard” family forms. It is doubtabout the recognition of their relationships as “gold standard”or “first class” compared to those of “base” or “second class”mortals that exercises pro-marriage campaigners – you cannotmove out of your perceived position as second class (civil part-ners) and join first class (spouses) if the class system is abolishedand everyone is equal.

CritiquesIf politicians and LGBT rights campaigners say they are

unaware of the regressive nature of pro-marriage campaignsthere really is no excuse for that. Feminist writers and activistshave extensively critiqued the role of marriage in society andlaw and have been doing so for well over a century.11 If ourpoliticians and activists are unaware of, or dismissive of, femi-nist critiques they should at least be aware that, as long ago as1980, Scottish Law Commissioner Eric Clive explained howmarriage was an unnecessary legal concept.12 If awareness ofpre-devolution positions is a step too far then they should atleast be aware that much more recently Kenneth Norrie hasexplained how marriage is not constructed in a way to meetthe needs of same-sex couples and that we really should belooking for something better.13

Powerful critiques of the “gay marriage” bandwagon in theUSA by LGBT academics andactivists are particularly illumi-nating about the damage suchcampaigns cause to LGBT com-munities and to society as awhole. It should be noted, how-ever, that the campaign issignificantly less damaging inScotland thanks to the extensivedecoupling of legal recognitionand protection from the institu-tion of marriage. Anyoneclaiming to be a thoughtful pro-ponent of pro-marriage demands should read and reflect onNancy Polikoff’s book Beyond (Straight and Gay) Marriage: Valu-ing All Families under the Law and view Polikoff’s 2009 Roger SAaron lecture on the importance of valuing all families ratherthan privileging marriage.14 Polikoff explains with great carehow equality cannot be achieved by seeking access to a privi-leged status, how conservative LGBT leaders in the US havemoved the debate to the right and how issues of class and racein particular have been marginalised. If having consideredPolikoff’s evidence people persist in pursuing access to the privi-leges of marriage then at least no one can say “forgive them,they know not what they do”.

Why not equality for all?When challenged at the EHCR symposium about abandon-

ing the previous aim of “equality for all” a clear statement wasmade that, while many might like to challenge broader inequal-ity of treatment, LGBT equality had to be fought for within theparameters of the current system. In other words, if we have asociety that treats unmarried adults and their children less fa-vourably than married persons then what we must do is fightfor equal access to marriage privilege for some same-sex cou-ples rather than equality for all people (LGBT and heterosexual)whether they are in state-approved relationships or not: theposition is “it’s a pity that unmarried people are discriminatedagainst but that’s not an LGBT issue”.

Pro-marriage LGBT campaigners are fond of appropriat-ing political language from anti-racist struggles, in particularwords such as “segregation” and even “apartheid”.15 That such

a socially conservative campaign, concerned with access to aprivileged, segregated status should use the language of anti-apartheid struggle may strike many as offensive. Indeed thepro-marriage campaign runs directly counter to the principlesunderpinning one of the proudest moments of the ScottishLGBT movement’s history when in 1987 the Scottish Homo-sexual Rights Group took a leading position in expelling theGay Association of South Africa (GASA) from the InternationalLesbian and Gay Association on the grounds that GASA was apredominantly white group which did not take an anti-apart-heid stance.16 The view expressed by some in the debate – “it’sa pity apartheid is so rotten but that’s not an LGBT issue” wasrejected back then – a principled position that is diametricallyopposed to the pro-marriage campaign that seeks equality forsome rather than challenging fundamental inequality and seek-ing equality for all.

Two real problemsThere are two genuine problems with the current regula-

tion of adult relationships that pro-marriage campaigners useto justify their position: the treatment of trans people and thequestion of religious celebration of civil partnerships.17 Thesource of these two legitimate problems with our marriage lawsis that the state allows religion to play a role in what should be

a secular matter: colluding withthe privileging of marriage isnot the answer.

The rule that trans peoplecannot be recognised in theirappropriate (“new”) sex whileremaining married or in a civilpartnership18 – because thatwould then result in a marriagebetween parties of the same sexor a civil partnership of partiesof the opposite sex – has causeda great deal of distress where

the parties themselves are happy for the relationship to con-tinue. That rule should be repealed so that in those particularcircumstances the marriage or civil partnership continues, withdivorce or dissolution available should the relationship havein fact broken down. Although this would result in a relativelysmall number of same-sex marriages the justification would bethat people are already in these relationships and there wouldbe no need to denigrate civil partnered or cohabiting couplesas “second class” compared to marriage. The rule was intro-duced as a sop to right-wing pro-marriage groups and shouldnever have been enacted.

The other rule that is genuinely unfair is the one barringreligious celebration of civil partnerships: the answer is to cre-ate equality for all by removing religious celebrants from theprocess of marriage. Some of those fighting for the opening upof marriage to same-sex couples say this is necessary to allowthem to celebrate their union “in the eyes of God” (Rev SharonFerguson, EHRC Report p19). In fact religious groups whichchoose to bless same-sex partners are free to do so: the banrelates to the formal legal process of becoming civil partnerswhich can only be conducted by a registrar and not, as withmarriage, by a celebrant of certain state-recognised religiousgroups. The way to ensure equality for all is to remove reli-gious celebrants from the legal process of marriage so that it,like civil partnership, is a purely secular matter. If the partieswish to have the legal formalities preceded or followed by reli-gious celebrations then they should be free to proceed inwhatever way they choose, provided their particular deity ap-proves and no one is harmed. The current system results in the

Strange Bedfellows in the Pro-Marriage Campaigns

If politicians and LGBT rights campaignerssay they are unaware of the regressivenature of pro-marriage campaigns therereally is no excuse for that. Feminist writersand activists have extensively critiqued therole of marriage in society and law and havebeen doing so for well over a century.

Page 164 2011 SCOLAG (July)

state privileging certain religious groups over others: the in-volvement of religious groups in determining a person’s legalstatus should be eradicated, not promoted.

Who supports marriage?The EHRC symposium on “equal marriage” was carefully

constructed to exclude any expression of doubt about whetherseeking access to the privileged status of marriage – i.e. equal-ity for some, rather than equality for all – was an appropriategoal of either the LGBT communities or the Commission.19 Inlieu of discussion, the “ordinary people” in the audience werepermitted to ask various expert panels about how best to pro-mote the pro-marriage message and were allocated to andshepherded through workshops tightly controlled by the or-ganisers.20 Given this aversion to discussion of the merits forLGBT communities of a pro-marriage stance we might wonderabout the levels of support for the EHRC’s position.

Evidence of support for the pro-marriage campaign amongindividuals identifying as LGBT or as supporters of LGBT rightsis scarce. Approximately 400 people who completed an Equal-ity Network survey said they supported opening marriage tosame-sex couples (EHRC Report, p15). While this represented85% of all those responding it is likely that those who chose toengage with the process were those who had a personal com-mitment to promoting the institution of marriage – it tells usnothing about the proportion of LGBT people who are pro-marriage, only that 400 responses in favour of marriage werereceived. The LGBT Network’s petition to the Scottish Parlia-ment was supported by a total of 1007 signatures and theNational Union of Students’ petition secured 1309 signatures(out of a student population of approximately 230,000 and anNUS Scotland membership of about 200,000). As psephologistJohn Curtis reminded the audience at the symposium “the vo-cal are not necessarily the numerous” (EHRC Report, p33).

More robust evidence for support for marriage comes fromsurveys of the public as a whole. John Curtis provided the sym-posium with fascinating evidence of significant majoritysupport for allowing same-sex couples into the marriage club(EHRC Report, p21-30). It might be food for thought for homo-phobic religious “leaders” that in 2006 57% of Scottish peopleidentifying as being of the Catholic faith supported marriagefor same-sex couples with only 25% opposed. Even among Torysupporters support for same-sex marriage was at 42% versus30% opposed.

ConclusionWhat pro-marriage campaigners value is not equality but

the institution of marriage. Access to a privileged status onlymeans something when others are treated less well – it is beinglumped in with all unmarried people (the other “second class”people, the other less well regarded) that so offends pro-mar-riage campaigners.

Opening marriage to same-sex couples seems inevitablegiven that LGBT organisations are seeking membership of theclub for their more conformist constituents and more and morestates are willing to assimilate and privilege some conformistLGBT individuals.21 In Scotland at least, it is to be hoped sucha move will not strengthen the hand of reactionary social forcestoo much, given the efforts of countless individuals, voluntaryorganisations, politicians and academics over many years tomove the law and policy debate away from the “marriage asgold standard” position.

Of course, widespread support for allowing respectableLGBT people into the marriage club indicates a welcome shiftaway from the homophobic views that dominated Scotland forso long. Shortly before the Scottish general election in May 2011

First Minister Alex Salmond came out clearly as supporting“gay marriage”. This refreshingly open expression of his per-sonal view seemed to do the SNP no harm with the electorateand suggests that Brian Souter’s cash is not influencing socialpolicy and that has to be welcome.22 But we should respect-fully decline Mr Salmond’s (genuine and kindly meant) offerthat some LGBT people might join the marriage club and in-stead insist on equality for all.1. Nicola Sturgeon response to question S4W-110 from Patrick Harvie, 2

June 2011. As pro-marriage campaigners make clear, the demand is foropening the current institution of marriage with all its baggage and notfor anything new such as “gay marriage” or “same-sex marriage”.

2. Available at http://xrl.us/bkuwxd3. Matrimonial Homes (Family Protection) (Sc) Act 19814. Law Reform (Parent and Child) (Sc) Act 1986. Children of unmarried

parents are still discriminated against in relation to, eg, the imposition ofparental responsibilities upon their parents, Children (Sc) Act 1995.

5. See the Civil Partnership Act 2004: the 1981 Act noted above and theDamages (Sc) Act 1976 have been amended to extend protection beyondmarried couples to both mixed-sex and same-sex cohabiting couples.

6. Evelyn Gillan (2008) Influencing Family Policy in Post-Devolution Scot-land (PhD Thesis; University of Edinburgh)

7. See Dempsey (forthcoming) “Lesbian, gay, bisexual and trans people andthe law” in Mark Mulhern (ed) Scottish life and Society: Law

8. See, eg, Equality Network & Scottish Transgender Alliance Manifesto2011 at http://xrl.us/bkuo3m

9. The front page of Patrick Harvie’s own website, www.patrickharviemsp.com/about-patrick/, notes that his first involvement with the Parliament was in2000 when he gave evidence as an LGBT youth worker on the negativeimpact of Section 28 and the Keep the Clause campaign, see http://xrl.us/bkuwxw. Note that the Keep the Clause witnesses are explicitly “pro-marriage”.

10. See, eg, “Tories to offer tax breaks for married couples”, 10 April 2011,http://xrl.us/bku456

11. The literature is vast, but see, eg, Susan Moller Okin (1989) Justice, Gen-der and the Law and Nancy Polikoff (2000) “Why lesbians and gay menshould read Martha Fineman” 8 Journal of Gender, Social Policy and theLaw 167.

12. In John Eekelaar, ed, (1980) Marriage and Cohabitation in Contempo-rary Societies.

13. K McK Norrie (2000) “Marriage is for heterosexuals, may the rest of usbe spared from it” 12 CFLQ 363.

14. Currently available at www.youtube.com/watch?v=EDynaeB4MUI15. See, e.g., http://xrl.us/bkuwxy16. Dempsey (1995) Thon Wey, p2117. It should be noted that such campaigners tend not to highlight other

issues such as the economic plight of lgbt people who are single parentsor who are seeking asylum.

18. S.5 & 5A, Gender Recognition Act 200419. The notice for the symposium stated that “[t]his event will investigate

the perceived (sic) barriers to equal marriage and seek to produce aroadmap for legislators as to how to make equal marriage a reality …”.

20. In addition, every question was summarised and glossed by the chairbefore being passed to the experts which had the effect of destroyingany sense of debate and deadening any energy in the room. To be fair tothe Equality Network and LGBT Youth Scotland, whose names werealso on the conference masthead, this controlling approach is not usu-ally a feature of their own events and indeed was resented by some ENrepresentatives present.

21. For the inevitability of this process see Elaine Sutherland’s comment onSchalk v Austria in “A step closer to same-sex marriage throughout Eu-rope” 2011 Edinburgh Law Review 97

22. cf the scare story “Salmond backs gay marriage SNP leader risks alienat-ing religious voters and biggest donor”, The Herald, 24 Apr 2011. Souter,the biggest single donor to the SNP, was the champion of the homopho-bic “Section 28” campaign in 1999.

* Brian Dempsey is a lecture in law at the School of Law,University of Dundee

Strange Bedfellows in the Pro-Marriage Campaigns