Should we extend the definition of marriage to encompass same-sex partnerships (Civil Partnerships)?
It is impossible to provide a single definition of marriage. However, one thing is for certain, and that is marriage is not a union between two people of the same sex (at list for now). Even though lack of a single definition of marriage has been said to be a reflection of religious, cultural and ethnic diversity , however regardless of how far we have advanced socially, marriage still is and arguably should be one of the most important institutions in the society . With this in mind, in the course of this essay it will be argued that extending marriage to homosexual couple is to infringe religious concepts of marriage upon which sanctity of marriage is enrooted , and this might lead to a political turmoil more profound than imaginable. On the other hand, it will be appreciated that if marriage was to be extended to homosexual couples that would undoubtedly achieve greater equality and uniformity. Nonetheless, the costs of such an extension outweigh its advantages.
In Ghaidan v Mendoza , Lord Millet following Hyde v Hyde defined marriage as a union of a man and a woman. However, such a blanket exclusion of same couple was argued to be unjustifiable. Baroness Hale in the same case suggested that instead of focusing on sexuality, marriage should have a defacto meaning based on its essential quality in light of intimacy, stability, social and financial dependency. Nonetheless, English law still holds that for a marriage to be valid its content should be that of a man and a woman .
Such a stringent condition of marriage was thought to be denying homosexual couples with equal rights as heterosexual couples . To address this problem in 2004 the Government enacted the Civil Partnership Act 2004 which aimed at achieving a degree of equality between same-sex couples and heterosexual couples. The Act enables homosexual couples to enter into a civil partnership which eventually as stated by Baroness Hale in SSWP v M, grants them same legal recognition that the law grants to heterosexual couples. As voiced by Anderson the Act is a generous invention with loud political and social message. He argues that by giving homosexual couples the same legal status as married couples the government has made it possible for homosexual couples to obtain full social recognition.
Nonetheless, the argument that civil partnership is nothing but second rate marriage is somewhat incorrect and undermines the significance of CPA. Baroness Hale writing extra-judicially unequivocally suggested that civil partnerships ‘are marriage in all but name’ . This idea of equality between civil partnership and marriage was echoed in Wilkinson v Kitzinger . In Wilson v Kitzinger it was explicitly voiced that civil partnership and marriage are almost equal save the name. This argument can be supported by the fact that the CPA accords to same-sex relationships effectively all the rights, responsibilities, benefits and advantages of civil marriage save the name. However, despite all the glimpse of equality between civil partnership and marriage, one can still argue that civil partnership is inferior to marriage. As pointed by( ) couples in civil partnership do not enjoy the same universal recognition as married couple. This is evident in Kitizinger case where a Canadian married homosexual couple was failed to be recognised as husband and wife in the UK. However, that reluctance to equate civil partnership with marriage is justified on religious, sociological and cultural factors to be discussed later.
Nonetheless, the question remains whether we should extend marriage to same-sex couples. Without sounding homophobic this part of the essay will focus on pressing arguments against such a call.
Marriage is sacred and regardless of the religious beliefs, for decades British have largely agreed on the sanctity of marriage. Since the ancient times, marriage has always been viewed as a union between one man and one woman to the exclusion of all others . This union is important not only to the parties themselves but to the society at large . On one hand the union brings rights and responsibilities to the parties but on the other-hand, it is important for reproduction, and child rearing . Therefore extending marriage to gay partners will undermine the everlasting portrayal of marriage and this can be said to cause ‘cultural genocide’
However, the above concerns are somehow obsolete. First, to equate a legal meaning of marriage to a religious one is dangerous considering the disparities in religious beliefs, and also the fact that some religious groups support gay marriages . Further, the argument on heterosexual marriage as a mechanism for reproduction and child rearing is outdated. In the modern society, homosexual couples are as well equipped to engage in child reproduction due to advances in technology, notably assisted reproductive technology and the emergence of surrogate mothers. However, my biggest concern still is whether these technological advances uphold and conform to our laws of nature?
Although, many among being Baroness O’Cathain are of the view that it is just wrong to ‘create a parody of marriage for homosexual couples’ , it can however be argued that extending civil partnership to marriage can achieve greater equality. I am of the view that homophobia, male dominance and gender imbalances are not legal but sociological and psychological problems whose remedies lie in the society itself. Unless we challenge the traditional views that a man should marry a woman and in most cases live in a subordinate relationship, we can never eradicate these problems. It is about time we shape the notion of marriage not on sexuality but on commitment, love, equality, and respect. Thus, by according same sex couple with the right to marry, we shall be moving a step closer to a society where sexuality does not dictate authority in the family, and gay people are to be regarded as not two men/two women doing immoral acts but rather be viewed in the same perception as heterosexual couples, that is ‘two people who love, and respect each other, and who have committed their lives to each other, till death do them part’.
Nonetheless, my question is, should we really throw all that our society has forever embraced- that is marriage is a respectable union between a man and a woman responsible for reproduction and child rearing, so that a few minorities can claim equality and uniformity? Or we should rather uphold to our strongest values, but yet respect the privacy of others (homosexual couples) as well as granting them equal rights as heterosexual couples?
Undoubtedly, equality has already been achieved by CPA. The Act has created the best of both worlds for Government in appeasing both the gay and anti gay lobbies. To extend this situation might lead to political problems more profound than imaginable. We should always remember, as argued by Lynn Wardle, the union of two persons of different gender creates a union of unique potential strengths and inimitable value to society. As such, as poignant as it may sound, such gender difference is still prevalent in today’s world, and cannot be masqueraded by equating a union of two people of the same sex with a civil marriage between a man and a woman.