There was a bit of a kerfuffle last week regarding Jacob Rees-Mogg’s view on same-sex marriage. He is opposed but effectively said that it wasn’t up to him to decide: 'I take the teachings of the Catholic Church seriously. Marriage is a sacrament and the decision of what is a sacrament lies with the Church not with Parliament.'
And yet, marriage is, self-evidently, defined by Parliament. It has a precise definition in law and that definition has been extended to include people in homosexual relationships. It has been extended to permit people who have been previously married and divorced to re-marry, despite religious objections. It is also restricted to people over the age of 16 and it is prohibited for relatives closer than first cousins. Adultery is defined in law (though only for heterosexual relationships), as are the other permitted causes for seeking a divorce. The tax and inheritance situation is different for married people, as is entitlement to a spouse’s pension following their death. So to say that it is not for Parliament to define marriage is patently absurd.
In fact, what we have is a category error, arising due to the use of the word 'marriage' for two quite different things. One is a legal contract which confers rights and responsibilities on the parties involved. The other is a sacrament, a ceremony of a religion to which one belongs, but that doesn’t have any significance to someone who is not of that religion.
In a perfect example of mutual recognition of standards (Mr Davis and M. Barnier, take note!) most people accept the marriages of other religions and cultures as being valid sacraments and which meet the legal definition of marriage. Where a religion or culture strays outside of agreed norms with, for example, forced marriage, polygamy or child marriage, it is not recognised as being of 'acceptable' standard, no matter what god might be saying to those involved.
Basing the law on religious teachings was easy when almost everyone subject to the law belonged to a variant of the same religion. However, in an increasingly secular and diverse country, it is time for government to get out of the sacraments business. For many people, 'civil partnership' is the perfect descriptor. Define a simple legal framework and then allow people to incorporate it into whatever ceremony or sacrament that they wish, whether entirely religious, entirely secular or some weird, personal mish-mash of whatever elements they choose.
As part of this process, it surely can be agreed that the genders of the parties have no legal bearing on the contract. Perhaps this is where the government is, for once, ahead of the game.
A few months ago, Justine Greening, the Education Secretary, announced plans to let people self-select their gender, again to a substantial amount of fuss and outrage. My main objection with this policy is that it pre-supposes that people must make a choice. Why? What business is it of government?
I would far rather see the government remove all references to gender from legislation and let people live their lives as whoever or whatever they wish. In the same way, I would happily see all reference to race, religion, etc. removed from the law. Parliament should simply set out the legal position of all individuals in relation to the state and to each other. What better guarantor of equality under the law? Discrimination law could be broadened to cover cases of e.g., individuals being denied service or refused employment because of who they are (sex, gender, race, religion) rather than what they do.
Regarding the most common point of conflict, toilets and changing rooms, businesses should be allowed to set their own rules based on what works best for them. The law should simply mandate that a reasonable policy is in place. Some businesses may take a unisex approach (like many swimming pools); Others may create additional facilities (like some offices, schools and churches); Some might just allow the individual to decide to use whichever is most comfortable for them (restaurants and cafés).
By removing gender from the law, the framework for 'marriage' becomes straightforward. It is a legal contract binding any two people together, pooling and sharing of resources, creating a more stable environment for raising children and providing increased security into old age with less fear of abandonment.
It also allows people with strong religious convictions like Rees-Mogg or Tim Farron to avoid the issues of whether they 'believe' in gay marriage. They can simply say that their religion does not contain the relevant sacraments but that they accept the legal basis for civil partnerships; which, in fact, is precisely what Rees-Mogg said: 'It’s not for me to enforce my morals on others. Gay weddings are legal.'
So rather than continuing down the path of enshrining identity politics in law, the government could strike a blow for personal and religious freedom by simply saying the gender and sexuality of people wishing to legally commit to each other is none of their business. In some ways, it’s really quite conservative.