Marriage (Same Sex Couples) Bill

Lord Elystan-Morgan Excerpts

Monday 17th June 2013 Lords Chamber

[Lord Brown of Eaton-under-Heywood]

I, of course, need the most rudimentary lectures in any scientific subject you care to mention, but I appreciate—and it was said time and again at Second Reading—that there is a distinction between equality and sameness. However, that is no bar to giving the gay community—same-sex couples—the same term to celebrate and enshrine their faith in and commitment to each other. If the Bill goes through in its present form and those couples are henceforth asked, “Are you married?”, they will be able to say yes, but if the amendments that are now suggested go through, they will still have to say no, and I for one would regret that.

[Lord Elystan-Morgan]

My Lords, I find myself in total agreement with the submissions made so clearly by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I have immense respect for and sympathy with those who stand firmly on each side of this argument. If it is proven that there can be no actual sameness in single-sex and dual-sex marriage, then on a very artificial basis the argument seems to be carried that way. There cannot be total sameness, and we all know that.

However, the question that we should humbly be asking ourselves this afternoon is: can there be so much in common that the idea of marriage can accommodate both in respect and in status? That, I think, is the real question. If the argument was that the Christian concept of marriage is now and always has been immutable, unchangeable and utterly the same from generation to generation, then my case would fail. However, is that in fact the case?

Prior to 1836, people could get married in this country only in the Church of England. My forebears were staunch Welsh Presbyterians but they had to submit to a ceremony that they regarded as wrong. Was that not a massive change in so far as the institution of marriage was concerned in 1836? I am sorry to pontificate about matters that are well known to many distinguished lawyers in this House but before 1882 and the Married Women’s Property Act of that year, a married woman could not hold substantial property in her own name. She could hold what I think was called her “paraphernalia” but other property became the property of her husband and she herself was essentially a chattel of her husband’s estate. Immediately after that Act of 1882, could anybody say that marriage had not changed at all, any more than one could say it after 1836?

Then, in 1925, the criminal law was substantially changed. Previous to that point, if a married woman was present when an offence was committed by her husband, there was a clear presumption—a rebuttable presumption, it is true—that she was acting under his dominion and under his orders. Would one not say that that substantially changed the situation of marriage in the criminal law?

[Lord Anderson of Swansea]

The noble Lord is giving us a very fine history of a number of changes which have, by statute, been brought about in relation to the definition of marriage. Is he suggesting that any of those changes was of the scale and nature of the change now being proposed?

--- Later in debate ---

[Lord Elystan-Morgan]

Ultimately, bearing in mind the whole ethos of society, it is a matter of judgment, whether the totality of these changes has substantially altered the institution of marriage. Prior to 1991 a husband could rape his wife provided they were still living together and no separation order had been made by a court. Was her position the same after 1991 as it was previously? One could give other less spectacular instances.

[Lord Cormack]

I nearly always find myself in almost total agreement with the noble Lord, but surely the one constant throughout all these changes is that the relationship has been between a man and a woman.

[Lord Elystan-Morgan]

That is absolutely true. That is the assumption made in the Book of Common Prayer, which, as I understand it—I am a Welsh Presbyterian—says that there are three justifications for marriage. The first is the procreation of children, the second is the avoidance of the temptations of fornication and adultery, and the third is that there should be a lifelong relationship based on love, affection and respect. The first justification has been dealt with very properly by the noble Lord, Lord Phillips of Sudbury. Many people who are young and capable of procreating children now get married on the understanding that there will be no children in their relationship. Does one say that their union is less than a union of marriage? On the third point, about the creation of a lifelong union based on love, affection, respect and mutual dedication, is there a fundamental difference between that and the institution of marriage, as we say now? Nothing that I have said can prove the matter one way or the other. However, I make the obvious point that marriage is not an immutable institution. It has become elongated and greatly changed over the years, and will be changed again. Is it not possible to accommodate within that change the term “marriage” for people of the same sex?

I make one last point with regard to union. The noble Lord, Lord Hylton, said that there was a union of Scotland, England and Wales. It was never a union in relation to Wales, as I am the noble Lord, Lord Elis-Thomas, will agree. The preface to the Act of Union says the country, dominion and principality of Wales is now and always has been annexed, incorporated and included. It was a rape—certainly not a union.

[Lord Lester of Herne Hill]

My Lords, I was not at the Second Reading debate but I have read the 90 speeches since then. I am glad I was not there because I would have added even more to the length of the debates. I declare an interest: I am neither a believing Christian nor a believing Jew, and that no doubt colours the way in which I approach these matters. Many of those who have spoken already come from a strong religious tradition, which I fully respect, and which drives many of their views. As the noble and learned Lord, Lord Brown, has said, the main purpose of the Bill is to enable same-sex couples to marry, either in a civil ceremony or, provided that the religious organisation concerned is in agreement, on religious premises with the marriage being solemnised through a religious ceremony.

I promise to speak only once in relation to Amendments 7, 8, 9, 34 and 46. All are based on the idea that there is something called “traditional marriage”, defined as the union of one man and one woman for life to the exclusion of all others. What they mean by “traditional marriage”—as the noble Lord, Lord Elystan-Morgan, indicated in referring to the Book of Common Prayer—is a form of marriage that is biblically ordained in the Judeo-Christian tradition, which is a theistic tradition, although it does not represent the thinking of many Christians or Jews or many of those of no religious belief who are not affronted by the notion of same-sex marriage. Under the Bill, Christian churches, Orthodox Jews, Sikhs and Muslims are well protected from the risk of liability. However, that does not satisfy the movers of these amendments, who seek to write into the statute book a lesser status for same-sex marriage than for opposite-sex marriage by calling it “civil union” or some other term.