Marriage (Same Sex Couples) Bill

Baroness Butler-Sloss Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Lester of Herne Hill]

No, I will not, because I think all noble Lords in this Chamber regard marriage as the crowning of our relationships. As a man who has been married for 41 years, I certainly do, as do many gay people who are religious, or not religious but who regard marriage as the highest status they can aspire to. Therefore if you call it something less, such as civil partnership or civil union, it has a lesser status—not just a different status but a lesser one.

[Baroness Butler-Sloss]

Will the noble Lord at some stage address the amendment of the noble and learned Lord, Lord Mackay of Clashfern? It is difficult to believe that his proposal for “marriage (same-sex couples)” could import a lower standard, because it includes the word “marriage”.

[Lord Lester of Herne Hill]

I may not be able to do that because I still have to deal with these amendments, so I will reflect on that.

[Baroness Butler-Sloss]

It is in the same group of amendments.

[Lord Lester of Herne Hill]

I will do my best. As the noble Lord, Lord Elystan-Morgan, has said, concepts of marriage have not been static in England or elsewhere. During the past three centuries, Parliament has made changes to the status of marriage. What was once traditional and discriminatory is no longer enshrined in English marriage law. The Bill is a further step in removing unjustifiable discrimination, not against Catholics, Protestant dissenters or Jews, but against homosexuals.

I think my noble friend Lady Williams will concede that gay and lesbian couples are just as able as heterosexual couples to love each other in long, enduring relationships. They are just as able to bring up children in the way good parents do, in lifelong relationships. Some noble Lords will have personal experience of their children in gay and lesbian relationships doing precisely that.

Traditionally, the law governing the registration of marriages was piecemeal, restrictive and discriminatory, beginning with the Act of Uniformity 1662 and Lord Hardwicke’s Marriage Act 1753, which abolished common-law marriages. In the 19th century, Parliament created exceptions, one by one, to that discrimination. Most recently, exceptions were made under the Places of Worship Registration Act 1855, not only for Protestant and Jewish dissenters but for other denominations and bodies, theistic and non-theistic, including Buddhists, Jains and Muslims, whose premises are registered for religious worship and the solemnisation of marriages.

Under Scots law, as the noble and learned Lord, Lord Mackay, knows well, marriages by cohabitation and repute could be contracted in Scotland until as recently as 2006. They were still regarded as marriages, even though they were irregular. A traditional marriage could also include a marriage between first cousins, an arranged marriage or a strange thing called a levirate marriage.

Until the Civil Partnership Act 2004, loving gay and lesbian couples could not get legal recognition for their enduring relationship. Now, they may do so. The Act has worked very well, even though it was strongly opposed at the time. However, even though the Civil Partnership Act gives them equivalent rights and duties to those of married couples, it forbids them from marrying and the words “civil union” add nothing to the notion of civil partnership. That is why it is a lesser concept.

A year before the Civil Partnership Act became law, there was an important case—which many of your Lordships will have heard of—Goodridge v Department of Public Health, in which the chief justice of the Supreme Judicial Court of Massachusetts, Margaret Marshall, presided. That court upheld the right to gay and lesbian marriage, rejecting the argument that some of your Lordships have made today and elsewhere, that civil union or civil partnership was good enough. The chief justice explained why, on grounds of due process and equal protection, the state did not have a rational basis for denying same-sex couples marriage. A majority of that court agreed that same-sex couples must not be assigned second-class status, which is what I suggest would be accomplished if any of these amendments were accepted.

The other place has formed a similar view about the need for same-sex couples to marry, as have the Government. I know of no judgment of our courts or of the European Court of Justice that suggests the need for amendments of this character. They would suffer from the serious vice of encouraging a belief in a need for a second-class status for same-sex couples to be enshrined in English law. If the House divides now or hereafter, I will have to vote against any of them.

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[Lord Grenfell]

My Lords, I will be extremely brief. I am not sure whether I prefer the amendment set down by the noble Lords, Lord Hylton and Lord Cormack, or the one set down by the noble and learned Lord, Lord Mackay, but I believe that either of them would help bridge the divide. Therefore, I am generally in favour of both of them and would be happy with either.

The only point I want to make is to refer back to something that the noble Lord, Lord Carlile, said about children. I think that he rather oversimplified the matter. If a same-sex couple says to its children, “Yes, we are married”, and those children have had what I would call the benefit of religious education and say, “But we have been told that marriage is between a man and a woman”, this seems divisive and it would be very difficult to square the circle with them on that.

[Baroness Butler-Sloss]

My Lords, I, too, am a trustee of the Marriage Foundation, which I should say is totally neutral on this subject. In any case, I am speaking personally.

To pick up a point made by the noble Baroness, Lady Williams, about children, when I was a family judge I tried cases where I placed children with gay couples, male or female. I had the utmost confidence that those children would be extremely well brought up. Nothing that we are discussing today, or indeed in this Bill, leads me to believe that whatever a same-sex couple’s relationship is called would have anything to do with the excellent way in which very many children are brought up by lesbian and homosexual couples. That is my own personal experience, sitting as a judge.

I did not speak at Second Reading; I thought that 90 speakers were enough. Like others, I have received more than 100 letters which my secretary has so far replied to, and many more e-mails. It might interest the House to know that 98% were opposed to this Bill, but the 2% in favour were also extremely persuasive. Listening to the earlier speakers, it seems clear to me that the word “union” will not be treated by those seeking marriage as the equivalent of “marriage”, for the reasons that have already been given. Since it is clear that this Bill is going through, it is time for us to try to find the best way forward.

Those who support the Bill are—to use the colloquialism—hooked on the word “marriage”. That we have to accept, but the Government need to recognise the strength of feeling of those who are opposed to the use of the word “marriage” simpliciter as recognising the marriage of couples of the same sex. We must find a middle way. I strongly support the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, because this House urgently needs to seek reconciliation and find a compromise, as the noble Lord, Lord Phillips of Sudbury, said earlier. Somehow we have to allow the word “marriage” and somehow we have to distinguish between different sorts of marriage.

As the noble and learned Lord, Lord Mackay of Clashfern, has pointed out—and I aim to say in later amendments to this Bill—this is a question of equality but it is not a question of uniformity. You cannot have uniformity in this Bill together with what you get in the marriage of opposite-sex couples. One only has to look at Part 4 of the Bill, as the noble and learned Lord, Lord Mackay of Clashfern, has done, to see that there are differences. There is nothing wrong with differences in equality. As the most reverend Primate the Archbishop of Canterbury said at Second Reading, there is a danger of equating equality and uniformity in this Bill.

I cannot see how Amendment 2 can be objectionable to people. The “marriage” word is used and those who are in any marriage are equal, but the amendment recognises that there are differences. You cannot say that marriage for same-sex couples has in any way a lower status than marriage for heterosexual couples has. For goodness’ sake, at the end of the day we are legislators, if I might respectfully remind the House, legislating for what people on the ground will actually be doing. As the noble Baroness, Lady Shackleton, pointed out, there are all sorts of marriages: those who wish to marry; those who are already married—I have to confess that I have been married for very nearly 55 years, and to the same man; and marriages for the second or third time. We have to recognise this, but we also have to recognise that there is a difference, and although the noble Baroness, Lady Noakes, talked about different sorts of marriage, the different sorts of marriage that she mentioned were actually between male and female, because in those days they could be nothing else; they were all male-female.

This amendment would be a compromise in an otherwise deeply divisive Bill. I have to say to those who have been talking about the children, particularly the noble Lord, Lord Carlile, that perhaps most important of all—

[Baroness Thornton]

I should like to ask the noble and learned Baroness a question. I have wanted to ask this of other members of your Lordships’ House who were speaking about the matter of calling a same-sex marriage a same-sex marriage rather than distinguishing it from what people are calling a traditional marriage. What is the noble and learned Baroness’s view about the fact that anyone who has a same-sex marriage would have to identify their sexuality by definition? Why should they have to do that?

[Baroness Butler-Sloss]

You have to recognise the truth of it. The most reverend Primate pointed out the importance of truth. It is different. We have to look at some stage, as the noble and learned Lord, Lord Mackay, pointed out, at how we deal with the children of a couple who cannot have their own children as a couple.

[Baroness Thornton]

I beg the noble and learned Baroness’s pardon, but in other parts of our legislation—in our equalities law—we protect people from having to declare their sexuality, because we think that that is the right thing to do. It is not a question of the truth or not the truth.

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[Baroness Butler-Sloss]

The declaration of sexuality would be relevant only at the moment of marriage. It would not be relevant to everybody else who meets them or knows it. They will be married. Perhaps the most important point made by the noble Lord, Lord Carlile, was about children. If we have marriage and same-sex marriage, so far as the children are concerned, it is marriage. They will say, “My parents are married”. It seems to me that the noble and learned Lord, Lord Mackay of Clashfern—

[Lord Lester of Herne Hill]

I apologise to the noble and learned Baroness, but I never answered her question when I was on my feet. She asked what I thought of Amendment 2. What I do not understand, either in Amendment 2 or in the speeches in support of it, is why it is necessary. The Bill begins by saying in Clause 1(1):

“Marriage of same sex couples is lawful”.

Subsection (2) refers to:

“The marriage of a same sex couple”.

We do not need to have sarcastic remarks about Lewis Carroll and Humpty Dumpty. The words could not be clearer. I do not understand why one needs to add anything. The Bill is about the marriage of same-sex couples and nothing else.

[Baroness Butler-Sloss]

I am grateful to the noble Lord for being prepared to answer the question that I asked him some considerable time ago. The House needs to recognise the deep division that exists both in this House and in the country. From the quantity of e-mails and letters that I have received, I know that there are a number of people out there who are bitterly upset, bitterly distressed and angry at what has happened with this Bill. I support the noble and learned Lord, Lord Mackay of Clashfern, because the amendment is a compromise—it is an attempt at reconciliation. I do not support the word “union” for the very sensible reasons that have been given. I think that there has to be the word “marriage”—I am, with regret, converted to that now—but I believe that we have to seek a middle way. If we do not, there will be many people out there listening who will be even more upset than people in this House.

[Lord Mackay of Clashfern]

I should like to answer the question that was not put while I was speaking. The provisions in the Bill for same-sex and opposite-sex couples are different, and therefore it is only right that a distinction should be recognised in the Bill for that purpose. That would not make one any less lawful than the other or anything of that sort, but it would distinguish between the provisions that apply to same-sex couples and those that apply to opposite-sex couples. Nobody can deny that these provisions are different in the Bill.

So far as the noble Baroness, Lady Thornton, is concerned, there is no necessity to declare one’s sexuality in relation to same-sex marriage. As I pointed out at Second Reading—and I am sure that the noble Baroness listened carefully—there is no question of needing to be gay to engage in a same-sex marriage. Platonic relationships between people of the same sex would perfectly suit the Bill as it stands.

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[Lord Cormack]

My Lords, perhaps I may ask my noble friend a specific question, which has already been referred to by my noble friend Lady Cumberlege. A number of us received a letter from a clergyman of the Church of Scotland who, not in his official duties as a chaplain to the police but in, I believe, his blog, referred to his own personal belief in marriage as being the union of a man and a woman. He was subsequently dismissed from his post as a chaplain. What I want to know is this: are the provisions that the Government are putting forward in this Bill sufficient to prevent that sort of unseemly episode happening in the future?

[Baroness Butler-Sloss]

My Lords, when we are looking at a Bill which has the intention of increasing respect for and giving rights to a minority, it is equally important to look at another minority who will be unable, from their personal conviction, to accept the validity of the consequences of this Bill. The Equality Act has its defects. I strongly supported it, particularly all those elements in relation to gay rights, and I would do that again here. I would take that right to the stake because while I do not agree with marriage, I certainly agree with equal rights.

What I am concerned about—I expressed the same concern during the passage of the Equality Bill—is the right of other people who are in minorities to express a view that is unpopular with many other people, particularly with other minorities. We are now in a new dimension in that we are going to have same-sex marriage. Whatever it is called, it will be marriage. However, there will be people out there who cannot take it. This Bill should recognise that situation, and however great the Labour Opposition think their Equality Act is, it does not necessarily cover every aspect of what we are concerned with today; that is, those who cannot tolerate marriage for same-sex couples. Even if it may be partially covered by the Equality Act, it would be highly wise to have something in this Bill that covers this issue.

I agree with the noble Baroness, Lady Turner, that these amendments may not offer the right wording, but we are in Committee. Surely we could produce, by Report, something that provides some degree of support for other minority groups.

[Lord Anderson of Swansea]

My Lords, my noble friend Lady Thornton speaking from the Front Bench and my noble friend Lord Alli have argued, no doubt persuasively in their view, that the current protections are adequate: the Equality Act is in place. However, in my judgment that contention is belied, first, by the fact that a number of leading counsel take a contrary view and say that the protections are not adequate, and, secondly, by the fact of some of the cases, some of which have already been cited. We will come to the registrar later, as well as the chaplain to the police and other such cases. It would be helpful if we could have a response from the Minister that these cases would in fact have received protection under government Amendment 53 and any other protections which the Government may seek to provide.

My own starting point is clear: as a House, we should seek to protect minorities from what is, sometimes, the tyranny of the majority. We can refer to the wonderful literature on this, such as by Mill and de Tocqueville. I would recommend all colleagues to read and re-read what they say about the tyranny of the majority. Surely, part of our duty is to ensure—so far as we are able—that minorities are protected. In this case, we seek to protect and to give dignity and equal rights to a minority in our country. I would hope that those in this minority would also see the importance of giving protection to another minority—those who think highly of traditional marriage as defined.

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The Ross saga, and the indignity faced by that one individual who expressed his views, would have been less likely in England and Wales with Amendment 19. I urge the Minister, in replying, to say whether she is confident that the amendment that she will move adequately protects such people and that there will be no recurrence of such outrages in future.

[Baroness Butler-Sloss]

I will make a very brief response to the noble Lord, Lord Alli, who I think had possibly not finished speaking, to just elucidate what was meant by a minority. Once the Bill is law, I have no doubt that the majority will accept it. However, there will be a minority who will not accept it, and it is that minority that needs protection.

I have to say that I slightly resent that the noble Lord, Lord Alli, talked about a minority being a majority and the majority a minority. Within majorities, there are minorities, even of the same group. Some will accept it and others will not. It is the ones who will not accept it who actually need protection; much as the gay community has needed protection in the past but has not received it.

[Lord Singh of Wimbledon]

My Lords, I rise to speak to Amendment 19, which is in my name and is part of this group of amendments. In many ways, what I will say will mirror some of the things said by the noble Lord, Lord Anderson. The Equality Act 2010 is meant to protect against discrimination on the grounds of religion and belief. However, anyone who has read about the cases that have come to court will know that it has not always, to date, protected people with strong religious beliefs about marriage.

It is not easy to stand up for your beliefs against the might of arrogant and sometimes ignorant authority. It is not easy to risk your career prospects and your family’s livelihood. I know—I have been there. Lack of clarity in the law adds to the difficulty. Those with traditional views bringing discrimination claims under the religion or belief strand, usually after being mistreated for a long time, have found that their beliefs on sexual ethics were not covered. Amendment 19 would put beyond doubt that belief in traditional marriage falls under the religion or belief strand. It would not guarantee that every claim brought to court would succeed but would simply confirm that the belief is capable of being protected under the Equality Act.

Millions of people in this country passionately believe that marriage is an exclusive relationship between a man and a woman and cannot be anything else. Some believe this for religious reasons and others for non-religious reasons. Thankfully, we live in a democracy, where people are not forced to behave as if they believe something just because the law asserts it. We should all obey the laws of the land but we should also have the freedom to express our views about the fairness of those laws, particularly where they refer to dramatic social change.

When it comes to the issue of same-sex marriage, there is a real risk that people will be coerced to go along with the redefinition of marriage because there is a lack of respect and tolerance for diverse views on the matter. Other noble Lords have referred to the rather unfortunate moment in January when a draft speech issued by the office of the Deputy Prime Minister referred to people who disagreed with the Marriage (Same Sex Couples) Bill as “bigots”. He sought to make amends for the statement by saying:

“My views on this issue are no secret, but I respect the fact that some people feel differently to me about marriage”.

That was quite generous of him but it does not alter the fact that he refers to those who differed from him as bigots. The Deputy Prime Minister is not the only one to use such trenchant terms about those who oppose this legislation. Many of us have received similar abuse for defending traditional marriage.

The Government say in their fact sheet on the Bill that they are committed to freedom of speech and that they,

“have always been absolutely clear that being able to follow your faith openly is a vital freedom that we”—

the Government—

“will protect. Everyone is entitled to express their view about same-sex marriage, at work or elsewhere”.

That is a noble and good sentiment and one that we want carried into law and protected. Everyone should be entitled to hold and express their views about this important and sensitive issue without fear of punishment. We find strong support for traditional marriage among politicians of all stripes, lawyers, academics and workers from all walks of life in the private and public sectors. We find it among atheists and people of all religions, among heterosexuals and gay people. It would be sad if such opinions were muffled or silenced by a lack of clarity in the law. Not to respect and protect their ability to hold and express their beliefs about marriage would result in a tyrannical situation where there was only one acceptable view, with those with other views pushed out or mistreated. Public space must be left for those millions of people. There have already been many occasions when people who try to speak out publicly in support of traditional marriage suffer for it, even while the current law is still in place. We can be sure that unless measures are taken it will get worse if this Bill becomes law.