Married? With Children?

SAME-SEX COUPLES IN BRITAIN

The Civil Partnership Act of 2004 has been in force in the United Kingdom for almost three years. A civil partnership confers on same-sex couples the same mutual rights, benefits, and responsibilities in domestic law as marriage does on spouses, and it gives each civil partner the legal status of being the other’s nearest kin.

There is no legally prescribed form of ceremony for the registration of civil partnerships, but any wording the parties propose has to be cleared beforehand with the registrar. The Civil Partnership Act specifies that “no religious service is to be used while the civil partnership registrar is officiating at the signing of a civil partnership document.” The act also requires that the place where the civil partnership is formally celebrated “must not be in religious premises.” In all this, it parallels the prohibitions that already apply to civil registry office marriages. For example, Section 45(2) of the Marriage Act of 1949 provides that “no religious service shall be used at any marriage solemnized in the office of a superintendent registrar.” Parties to a civil marriage (for example, the Prince of Wales and Camilla Parker Bowles) are free to have a religious ceremony afterward; and the same applies to parties to a civil partnership, if any church will have them.

After our own civil partnership ceremony, my partner and I chose not to seek any church blessing. The requirements of the law made it very clear that what we were doing had nothing to do with the church. And, in fact, we found the legal prohibition against our using any religious language to mark the significance of what we were doing actually quite liberating. One was forced to think harder to find suitably secular words and readings and music that still caught the solemnity and novelty of the moment. I think we managed it. One friend’s wife complained to me that, although her husband had not cried at their own wedding, he was in floods of tears at ours.

I was touched and pleased to hear this, though I hastily corrected her by saying that ours was not “a wedding” and that we were not “getting married.” We were being “civilly partnered.” I thought and think the distinction—which so many of the guests present at the celebration were happy to elide—an important one, though I’m still not entirely sure why. I didn’t want what we were doing to be thought of as a parody of “the real thing”—a sort of wedding, a kind of marriage. It felt like something quite different, precisely because of the sameness of the partners: a civil partnership has its own dignity and integrity. In terms scholastics might use, it is unum quid (its own thing) rather than secundum quid (something like...marriage).

Britain has largely avoided the controversy over gay marriage that has been so hard to resolve in the United States. The creation and maintenance of parallel legal regimes for opposite-sex and same-sex couples has not been seen to devalue gay relationships as not being “good enough” for marriage. If anything, our nongay friends have expressed their envy. Some saw in our civil partnership the possibility of their own liberation from the centuries-old familial conventions and freighted meanings with which marriage has become weighted down. For them, we had been granted a freedom to create and define our own relationship for ourselves, rather than having to conform it to others’ expectations. And yet we gained the identical substantive legal benefits and privileges that the law affords to, and imposes on, an opposite-sex married couple.

The government in Britain seems to have stumbled across a solution to a problem that has divided much of America: it has chosen to make unequivocal provision for civil marriage and civil partnerships to operate as wholly secular institutions, leaving the religiously inclined to make such religious arrangements for their spousing as they wish. There was accordingly little concerted opposition on the part of churches to civil partnerships for same-sex couples—and much popular support. A common European consensus appears now to be developing, under the influence of the European Court of Human Rights, on the need for European states to make formal provision for the legal recognition of same-sex relationships and families consonant with the fundamental principle of nondiscrimination between straight and gay citizens.

The issue raising religious controversy in the United Kingdom is gay adoption. Paradoxically, this matter seems to raise fewer concerns in the United States, where adoption has been seen more as a private contractual matter open to any who are able and willing to pay for the service. Florida was the only state in the union that expressly banned gay adoption, and in late November 2008 that ban was declared unconstitutional by a circuit court judge, though her decision may yet be appealed. In the United Kingdom, however, the state has always played an active role in approving adoptions. As of January 1, 2009, antidiscrimination law in the UK requires all adoption and fostering agencies—including any voluntary adoption agencies run by the churches—to offer their services without either direct or indirect discrimination on grounds of sexual orientation.

But following the Vatican’s lead, the Catholic bishops in the UK have repeatedly proclaimed that homosexuality and “family life” are antithetical, and that the former is a threat to the latter. The hierarchies in both England and Scotland have complained that to impose a legal prohibition against their discriminating among prospective adoptive parents or fosterers on the basis of sexual orientation contravenes the church’s right to religious freedom—and thus discriminates against the religious on grounds of their religious beliefs. Some dioceses have said that rather than comply with the new requirements they will close down their adoption agencies.

This all has the feel of a concocted fight, however. The basic principle of the law in the United Kingdom, which all adoption agencies have always had to apply, is that the only criterion in considering a placement for adoption and fostering is what is in “the best interests of the child.” This legal principle means that no one, gay or straight, has a right to adopt or foster a child. A child in this country is not some commodity to be bought and sold or otherwise bargained for. So any offer of adoption or fostering has to be assessed from—and only from—the criterion of the child’s best interests. Against this background, the claim made by the church that it is obliged by its religious beliefs always to refuse their adoption services to prospective parents on grounds of their sexuality amounts to an unjustifiable a priori claim that it can never be in the best interests of any child for him or her to be adopted or fostered by a gay or lesbian individual or by a same-sex couple.

Surely one can hold on to the proposition that in an ideal world every child would be a wanted child with a father and mother in a stable and loving family environment—that is a proposition I myself would accept—and yet still recognize that the fundamental ideal of a stable, loving home may be realized differently, that what is ideal may differ from child to child, and even that sometimes the less than ideal will have to do. One would have thought that church adoption agencies could, at the very least, conscientiously work with all prospective adopters on that minimal basis, regardless of sexual orientation. Instead the remorseless logic of their position leads bishops to insist that gay men and lesbians can never be good parents to any child. In so doing they bear false witness against their neighbor.

 


Related: Sins of Admission, by Anonymous

Published in the 2009-01-16 issue: 

Aidan O’Neill is a writer and lawyer based in Edinburgh, Scotland. In 2007-2008 he was the University Center for Human Values/Law and Public Affairs Joint Fellow in Law and Normative Inquiry at Princeton University.

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