My same-sex marriage consultation response

QUESTION 2:
I don't agree that a distinction should be created between a gender-neutral "civil marriage" and a male-female only "religious marriage". Currently marriage is a single institution, albeit one which can be contracted in either a civil or religious ceremony, and to divide it into "civil" and "religious" involves redefining marriage as it currently exists, with unpredictable legal consequences (e.g. for concepts such as consummation and adultery, where the existing law is fundamentally incompatible with gender-neutral marriage).

Rather, the distinction should be between the existing legal concept of marriage and a new concept of same-sex marriage, which is then "mapped across" to all existing marriage laws - but with some exceptions/distinctions (e.g. as regards consummation and adultery, and the established church). This has some similarities with the approach taken in South Africa, and indeed with the approach taken for civil partnerships.

This would also mean that those religious bodies which so wished could conduct SSM ceremonies, while those that don't could refrain from doing so without that constituting unlawful discrimination (see the ECHR in Schalk and Kopf).

QUESTION 14:
I do not consider that the government can have the slightest confidence in the "ability of religious organisations to preach and teach their beliefs on the definition of marriage" to remain unchanged. Paragraph 2.12 of the consultation document, for example, shows a confusion between saying that marriage "can" only be between a man and a woman and saying that it "should" only be between a man and a woman - with only the latter statement to be legally protected, it seems. But the difference between the two statements has some profound consequences: to say that two people "shouldn't" be married is very different from saying that they "cannot" be (or "are not") married, and arguably statements of the latter form are likely to be seen by many as more offensive. Will they still be permitted?

This statement also doesn't address the extent to which religious organisations will be able to /implement and live out/ their beliefs on the definition of marriage. Will a church offering "marriage enrichment classes" be able to restrict it to opposite-sex couples, for example?

QUESTION 16:
The proposals on the whole seem poorly thought-out. It is disappointing that such a significant change has not been subject to a more fundamental process of consultation and consideration: with the question of "whether" swept aside without debate, and even the question of "how" framed in a very narrow way.

I believe it is possible for same-sex marriage to be introduced in a way which causes less legal disruption and uncertainty to marriage as it currently exists, and which both avoids the risk of human rights challenges to religious organisations that decline to recognise same-sex marriage while at the same time allowing those religious organisations that do wish to conduct same-sex marriages to do so. I believe a more thorough and sincere process of consultation could have addressed that possibility.

Instead, the existing institution of marriage is being treated in an cavalier and offhand way: divided into two separate concepts previously unknown to English law (civil and religious /marriage/, as distinct from marriage /ceremonies/) and with the former turned into a gender-neutral institution without the transparency and debate that such a significant change deserves.

See p.20 of http://www.homeoffice.gov.uk/publications/about-us/consultations/equal-civil-marriage/consultation-document?view=Binary (PDF) for the questions.

(Submitted 21 March 2012.)