Marriage (Same Sex Couples) Bill

Lord Anderson of Swansea Excerpts

Monday 8th July 2013 Lords Chamber

[Lord Glenarthur]

I very much support my noble and learned friend. The debates at Second Reading and in Committee referred to the word “marriage” as being the point at issue and how it could be described in the Bill. The problem with the Bill has been the word “marriage” and it is difficult to find another solution to that problem. For those who have concerns about finding a way to redefine marriage, which the Bill tries to do, it seems sensible, notwithstanding all the sensible comments of my noble and learned friend about the relevance of children to all this, to have a form of words that qualifies marriage under all its circumstances rather than totally redefines it. I very much support the amendment.

[Lord Anderson of Swansea]

My Lords, it is good to follow the noble and learned Lord, who describes himself as an ordinary person but who happens to be a former Lord Chancellor, one of the most distinguished lawyers in this country. I congratulate the noble and learned Lord on his diligence and ingenuity. I wish that I had thought of the amendment, in which he reproduces the title of the Bill. He clearly sees both sides and has made a serious effort to build a bridge between what might otherwise have become a very polarised debate. Yet, he has given both sides the substance of what they seek.

There are those who believe in traditional marriage, the definition that has existed since time immemorial, and others who wish to extend the definition to include same-sex couples. The Government wish to change that definition with all deliberate speed. I shall not linger on this matter but the deliberate speed is something that puzzles many of us, given that it looks as if the Government were converted to this idea only some time after the election manifestos of three years ago. Now there is nothing stopping them in their haste to get the Bill onto the statute book. Tradition has to be got rid of speedily.

For some, marriage is not just a ceremony with an approved form of words and mutual vows but a sacrament that has existed for many years. I, for example, look forward to my wife and I renewing our vows in a church with the local vicar on the occasion of our golden wedding anniversary in September. For us, our marriage 50 years ago was not some simple ceremony but a form of sacrament before God. Some hold that dear for that reason. For others who have come to their view only over the past year or two—and I include the Government and the official Opposition—the extension of the definition is necessary for equality. Perhaps that is as part of a Damascene conversion as they did not think so a year or two ago.

The amendment of the noble and learned Lord allows two things. Same-sex couples will be able to say in all honesty that they are married and truthfully assert that status when they discuss their marriages with other people. At the same time, the proposal recognises that same-sex marriages cannot be the same as traditional marriages. The noble and learned Lord mentioned characteristics such as non-consummation, adultery, being physically different, and the effect on children, a subject in which he has had a close interest. It is therefore absurd to try to make the same that which is essentially different. The amendment therefore allows for same-sex couples to be distinct but at the same time to be married and to be able to say so when they discuss their relationship with other people. It is an ingenious effort to bridge the gap, which I wholeheartedly support and commend to your Lordships’ House.

[Lord Lester of Herne Hill]

My Lords, we all agree that marriage is a vital institution. The exclusive commitment of two individuals to each other nurtures mutual love, support and stability. For those who choose to marry and their children, marriage provides legal, financial and social benefits and, in return, legal, financial and social obligations.

Two competing views of marriage were helpfully identified by Justice Alito in his opinion in the United States case of Windsor on 26 June, in which he dissented from the majority—the majority having decided that the denial by the Defense of Marriage Act of federal benefits to same-sex couples lawfully married under New York law was unconstitutional.

In his dissent, Justice Alito referred to the traditional conjugal view that sees marriage as,

“an intrinsically opposite-sex institution—the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so … Throughout human history and across many cultures, marriage has been viewed as an exclusively opposite–sex institution and as one intrinsically linked to procreation and biological kinship”.

That is the view of my noble and learned friend Lord Mackay and others who have spoken so far.

Justice Alito then referred to what he called the newer view that is the consent-based vision of marriage,

“a vision that primarily defines marriage as the solemnization of mutual commitment—marked by a strong emotional attachment and sexual attraction—between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent part in the popular understanding of the institution … Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is,

what he describes as,

“rank discrimination”.

The Bill removes that rank discrimination by securing equality for same-sex couples according to the newer view of consent-based marriage while protecting the traditional conjugal view of opposite-sex marriages for religious organisations such as the Church of England, the Catholic Church and others which do not wish to celebrate or solemnize same-sex marriages. It protects freedom of religion in that important way.

The supporters of this group of amendments—I shall make only one short speech on all of the amendments, which are grouped together on an industrial scale—do not like the Bill and seek to substitute for the phrase “the marriage of same sex couples” the phrase “marriage (same sex couples)”. They believe strongly in the traditional conjugal view of marriage as being much better, as we have heard, for the upbringing of children and they do not believe that the marriage of same-sex couples is to be regarded equally. They reflect their deeply held religious beliefs that I understand and fully respect.

However, these amendments would obscure the main purpose of the Bill, which is to enable same-sex couples to marry in accordance with the newer view of consent-based marriage because they are excluded under the traditional conjugal view of marriage. There should be no hierarchy that puts traditional marriage above consent-based marriage, whether in the definition of the marriage of same-sex couples or whether they are to be treated equally in all respects with the marriage of opposite-sex couples.

The attempt to define same-sex marriage differently from opposite-sex marriage while claiming that they are somehow equal would inevitably be seen by ordinary men and women in the street—and by me, as a not very ordinary man in the street, I suppose—as attempting to give the traditional view of marriage a superior status. It is essential to be sure that the marriage of same-sex couples is not regarded as less worthy than the marriage of opposite-sex couples. That is why I cannot support these amendments.

--- Later in debate ---

[Baroness Butler-Sloss]

It happened with abortion but, if I may say so, it was not a marriage. We all know how special marriage is; for goodness’ sake we would not all be here, voting in different ways, if we did not think that marriage mattered in a special way. It is for that reason, despite what the noble Lord, Lord Lester, says.

[Lord Anderson of Swansea]

Is the distinction not this: that there is no mainstream church, be it a Christian church or a Muslim group, in this country which believes in the principles of racist intolerance, whereas there are many mainstream people, Muslim and Christian, who do believe in traditional marriage? It is quite a simple distinction, which perhaps the noble Lord will consider.

[Lord Pannick]

My Lords, I—

--- Later in debate ---

[The Lord Bishop of Chester]

My Lords, as a bishop of the Church of England who is constrained by the church not to conduct same-sex marriages, the vision of the noble Lord, Lord Alli, has stimulated me briefly to rise to my feet. I suppose that I should declare an interest, given that I am a sort of registrar. Perhaps I am the only one here, as a bishop of the Church of England.

This is a modest amendment, as has been pointed out, but it has a certain symbolic importance. A lot turns on the status of the issues that we talk about, and that has dogged our debates throughout. The noble Lord, Lord Lester, asked why there is an exception in this case. However, the law does make exceptions in relation to the strongly held beliefs of a significant number of members of a religious body in relation to sexual orientation. The law allows religious bodies to have single-gender priesthoods or whatever. We have agreed exceptions in that area that we have not agreed in other areas, such as divorce. That is why the parallel between same-sex marriage and divorce—I think that the noble Lord, Lord Pannick, raised that point—does not quite follow. It depends on what one regards as the status of the different issues. For example, as I pointed out at Second Reading, historically the canons of the Church of England have never banned clergy from remarrying divorced people. A different status applies in this instance.

One of the problems is that a lot of people here feel—and I understand why—that this whole issue is a no-brainer, and that anyone who is opposed to same-sex marriage is almost de facto and de jure homophobic. That rather destroys the concept of reasonable debate. I find that that happens in the Church of England over the issue of women bishops: if you are opposed to that, somehow a glaze goes over people’s eyes and they cannot speak to you at all. As the noble Lord, Lord Deben, said, it is about having tolerance in the democracy in which we live. The issue is a small one.

As I understand it—though I speak as a fool in the presence of so many lawyers—the principle in this country is that we do not legislate retrospectively unless there is a compelling reason to do so. I do not think that a compelling reason to force existing registrars to conduct same-sex marriages has been demonstrated in our debate. In that spirit, I hope that we can accept the amendment.

[Lord Anderson of Swansea]

My Lords, the question has been posed whether it was reasonable for an existing registrar to have anticipated that at some date unspecified in the future the law in respect of same-sex marriage might be altered.

Let us consider a registrar who is now, perhaps, 45. Almost 10 years ago we had the Civil Partnership Act. During the passage of that Bill through this House the noble and learned Baroness on our Front Bench said in terms that there would be no relevance for marriage. That was said clearly in terms. If that same registrar—who might have been put off by the possibility of same-sex marriage—had looked at the manifestos of the different parties at the last election, not one of which mentioned same-sex marriage, should he nevertheless have anticipated that there was a faint possibility of that happening? Of course not. It is wholly unreasonable, even in the light of the recent past and the stampede over the past years, to imagine that someone would have anticipated that the situation would change.

Effectively, we are talking about tolerance, generosity and whether the way of the majority—the 3:1 balance we had in the last vote—will be juggernaut-like and we will go on nevertheless.

The noble Lord, Lord Lester, talked about victims. He talked about the victimhood, if I can repeat that word, of the couple who are not married because the registrar has an objection. However, what is certain is that a registrar will be a victim because—given the identikit of the person I have mentioned, who is perhaps in mid-life, has been a registrar for a number of years and did not anticipate the change—his job will go. Being a registrar does not provide specific training for anything else. He will face the fact that the terms and conditions of his employment, on which he embarked some years ago, have been fundamentally altered. However, there is no reasonable prospect of victimhood for the gay couple who quite properly ask to be married, because there can be a reasonable accommodation. There will be a team or group of registrars in a particular district, and the couple can avoid the one individual who has a conscientious objection and, without any fuss, move their case to someone else. After all, I suspect that, after the initial surge of gay people who want to get married, there will be very few cases and relatively few registrars involved. If the district is very small, an arrangement can be made with an adjoining district—as in other areas of local government administration—for the relatively small number of cases that occur.

The noble Lord, Lord Pannick, took a fairly absolutist view, in my judgment. Public officials enforce the law; the registrar is a public official; he enforces the law or he takes the consequences. However, I think that there are other public officials for whom accommodations are found in statute. Doctors, given our National Health Service, are also public officials in the broad definition of the term, and so are teachers. Given that teachers overwhelmingly receive their salaries from the state, their terms and conditions of employment come from the state, yet we find exception for them.

In effect, the number of registrars likely to be involved is small. This is a transitional arrangement. For me, this is a test case of the absolutism, tolerance and generosity of the Government. Equally, it is a test case for the Opposition, who are currently cheerleaders—although perhaps I should refrain from using that word—for the Government. The proud tradition of my party over the centuries has been to look after the small person, the “village-Hampden” or the person with a conscientious objection who might be hurt by changes. I hope that we shall not abandon that proud tradition and will accept this small, transitional and quite proper amendment.

[Baroness Berridge]

My Lords, I rise to support this amendment, which is recommended in the report of the Joint Committee on Human Rights in relation to the Bill. I serve on that Joint Committee.

In Committee, your Lordships heard emotional exchanges about what was or could be the experience for gay couples seeking a civil marriage if there was any form of conscientious objection. Those scenarios were upsetting. The argument that public services should be available to all service-users is compelling but I do not believe that it is unassailable. A number of individual registrars who are currently in post did, indeed, contact their MPs to say that they would consider resigning their posts should they not be allowed to object, on the basis of conscientious objection, to performing these ceremonies. I asked Simon Hughes MP, who serves on the committee, specifically about that question, as no Select Committee of this House should make recommendations that are unsupported by evidence.

I believe that the distinction between choice and conscience is important here, in that if people say that their conscience does not permit them to do this, that means that it does not allow them even to enter a process of choice. They are not expressing a mere preference. Neither time nor expertise allows me to go into that issue in any greater depth. I am sad that the noble Baroness, Lady O’Neill, is not in her place on the Cross Benches; I am sure that she could elucidate that point more eloquently than I can. However, there is a difference between choice and conscience.

I believe that it is this Chamber’s role to reach an accommodation that will enable same-sex couples to marry under the new law without causing the possible dismissal of a small number of public servants. I should be grateful if my noble friend the Minister would clarify whether the role of the registrar is limited just to the action of registration, as this matter caused some confusion in Committee when your Lordships considered the role of authorised persons. As regards Ms Ladele, I believe there is an arrangement in the Civil Partnership Act whereby certain personnel do not have to conduct civil partnership ceremonies if their local authority permits them not to do so. I leave it to the Front Bench, with its expertise, to clarify those two matters.

Given that the parameters of culture are changing so rapidly, I believe this amendment to be a suitable compromise between two different groups of our citizens, each with deeply held convictions. The ability of all citizens to access public services is not violated by certain public servants having a limited exemption. Having heard the arguments and circumstances outlined in Committee, I repeat that the exemption must be applied carefully and sensitively. It is not a perfect solution for either side but it is a sensible and reasonable compromise in the circumstances.