June 3, 2013

Cantuar Opines, World Moves On

The Archbishop of Canterbury has addressed his fellow Lords in opposition to the Marriage Bill now before them. He critiques the Bill for creating inequalities in marriage between same- and mixed-sex couples. Yes, you heard that right, inequalities. Of course, the faults in the legislation along this line — and faults they are — result from the unwillingness on the part of some to take the time to visit the questions of what "consummation" and "adultery" mean for same-sex couples. This is where the "inequalities" arise; and they could have been dealt with, in the same way laws have addressed many other "definitions" by ambiguous phrasing, or leaving matters to one side — leaving it to the courts to come up with the precise implications post facto. As it remains, we are dealing with differences without distinction, unless one holds to the radical and tautological position that same-sex couples cannot engage in "sex" — hence no consummation or adultery — because "sex" requires a mixed-sex couple.

Still, that is no reason to oppose this Bill — it isn't even "reason" at all — at least on the grounds that it is "redefining" anything.

I am not surprised, but disappointed that the Archbishop felt it necessary to speak on an issue on which the Church need have no position, as the civil marriages will not have any effect within the Church of England. There is a long history of discord between Canon and Civil Law in England in the marriage arena — from 1857 to 2002 divorced persons with living ex-spouses could be married under civil law but not in church; for the larger part of that time any church members who availed themselves of the civil provision (even the "innocent spouse") might find themselves excommunicated, and even now the clergy can refuse to marry couples in this situation. So there is absolutely nothing new in the legal provision for marriages — not just weddings! — of which the Church of England might disapprove, or choose not to recognize.

The truly sad thing is that in staking out a rear-guard position on a failing and irrational notion, the Archbishop does neither himself nor the church any good at all, and may in fact be causing further harm to the Church of England, the nation, and its people.

Tobias Stanislas Haller BSG


Erika Baker said...

A brilliant analysis, thank you Tobias.

The sex question is not so much about gay people not being able to have "sex", but about the fact that English law has a very clear definition of the one sexual act that can constitutes consummation and that can be cited as adultery.

The problem is that there is no single gay sex act that is not also a staple of straight relationships but when straights do it, it does not, legally, constitute consummation or adultery. So it cannot do so for gay couples.

That does not mean that sexual fidelity will not be expected. Already, if your spouse has an affair with someone of the same sex s/he can be divorced on the grounds of unreasonable behaviour. This principle can equally apply to same sex couples.

And as you yourself have pointed out so often, non consummation makes a marriage voidable, not void. And that only if it was unexpected and unpleasant, not if it was known before that the marriage would not be consummated (by, say, asexual people), or that it could not be consummated (say, by disabled people). It’s the deception that’s they key here, not the sex.

Including gay people requires not the slightest redefinition of the existing marriage legislation apart from substituting "a man and a woman" with "two people".

jessezink.com said...

I'm curious at your comment about the archbishop "felt it necessary to speak." This debate is fairly major news in England and the legislation is in the House of Lords, where the archbishop has a seat. To remain silent, I think, would have been seen as a major dodge—perhaps a wise move in these circumstances, but it would have generated as much comment, I think. It is the perils of Establishment that have compelled him to speak.

Tobias Haller said...

Indeed so, Erika. My point was that the old Matrimonial Causes Act did not define "consummation" (though other laws, and the courts had done so, unnecessarily narrowly as you note) and so the courts could once again have wrestled with the fact that the old definition did not meet the needs of the law itself. Same with the divorce issue: the recognized category of "unreasonable behaviour" showed that there is after all functional equivalence and no real "distinction" when it comes to infidelity.

Moreover, when it comes to people who are content to be faithful and / or not to seek a decree of nullity on grounds of incapacity to consummate, the questions never even need arise. And one hopes that will be the majority.

I think the problem here (as with much of English law) is its complexity and the effort to cover every gap or contingency, not trusting that case law will be able to sort things out -- which is in fact what will happen once marriage equality is achieved. Look how long the English wrestled with the "deceased wife's sister" question, and the dissonance between civil and church treatment of remarriage after divorce! There is nothing new with ambiguity in England (and Wales). Meanwhile, society has not fallen apart or been weakened where marriage equality has come on the books.

Erika Baker said...

I'm really trying to understand the real emotions behind all of the "they have the wrong kind of sex" arguments. People really seem to believe that marriage as we know it will end if a couple does't have one prescribed sexual act at least once in their marriage. Unless they're not able to have it, in which case it's ok if they're straigth because of the strange "they could do it if they could do it" level of argument that is also made in the case of "openness to procreation" that means that "straights could have children if they could have them".

There's a sense that straights can't do wrong regardless of what they actually do, and gays can't do right.
Or is it to do with an idealised concept of marriage that cannot be harmed by the reality of straight marriages but that will be immediately destroyed when it's acknowledged as idealised by letting gay couples join?

I so wish we weren't so terribly screwed up about sex! And I really wish I understood the underlying fears that underpin all of this nonsense.

Tobias Haller said...

Jesse, you may be right. I pay less attention to the Lords, but my understanding from posters at Thinking Anglicans is that of the 26 Lords Spiritual only about two are ever in the House at any given time.

As the present Bill is specifically and only about civil marriage, and completely excludes involvement by the Church of England (while permitting any church to opt in at a later date) it appears to me that the Church should not be expressing an opinion on a matter that does not concern it even indirectly. If it is the Establishment that led to the feeling he just had to speak, two options remained: 1) not to speak and deal with whatever bad press that engendered; or 2) to speak but confine his remarks to the very narrow issues of church involvement (nil) and note the overwhelming support for the Bill in the Commons and significant support in the populace. He chose neither course, instead becoming a "meddlesome priest" along the lines of his august predecessor -- who also fell foul over issues of civil and church jurisdiction! I do not suspect some certain Knights will be heading in his direction, but I mourn the missed opportunity to have helped the church appear to be not completely hypocritical (given the standards on remarriage after divorce) and foolish (given the barely logical pleas for "equality" with "difference" while complaining that the law provides "different" standards while providing equality. Not his, nor the C of E's best day, by far.