While listening to MPs debating the Marriage (Same Sex) Couples Bill, it was interesting to note how many instances the phrase “loving same-sex relationships”, or some variation thereof, was invoked by those who supported the Bill.
For example, Steve Reed MP, said “[t]o those who do not like gay marriage, I say, ‘Don’t marry someone gay, but please don’t deny that right to loving and committed gay and lesbian couples.’” Such sentiment has been invoked in other contexts when discussing or debating same sex marriage. For example, commenting on the legalization of same sex marriage in Maine, Chad Griffin, the president of the Human Rights Campaign said, “[v]oters in Maine came to the common-sense conclusion that all people deserve the ability to make loving, lifelong commitments through marriage.” Judges have also included in their analyses of the issue comments on how loving, same sex couples ought not to be excluded from the institution of marriage. In striking down legislative and initiative measures that limited marriage to opposite sex couples in California, Chief Justice George of the California Supreme Court stated that gay couples are just as capable as entering into “loving and enduring relationships” as heterosexual couples.
While it would be specious to argue that such statements ought to be interpreted as limiting same sex marriage, in those jurisdictions where it is lawful, to those couples that can establish that their relationship passes a test of love and commitment, they are an example of the ambiguous attitude that the state demonstrates towards marriage. As Martha Nussbaum points out, marriage confers on a couple a number of tangible and intangible benefits. In order to qualify for this privileged treatment, two people do not have to demonstrate that they are good people or that they are in a loving relationship. The state permits rapists, bigots, murderers, divorced parents who do not pay child support and a whole host of other individuals with at least questionable moral values to marry, provided they are of the opposite sex (and are not related and are above the marrying age). Nussbaum also points out that people do not even have to lead a sexual lifestyle of the type the majority prefers in order to get married. Paedophiles, sadists, masochists can all get married, so long as they wish to marry someone of the opposite sex. However, when same sex marriage is debated few of the participants allude to or even seem to recognise the ambiguity that the state demonstrates towards marriage. Marriage is a “keystone to the stability, strength, and health of human society”, yet the state permits anyone to get married provided they are of the opposite sex.
The debate about same sex marriage is primarily about marriage’s expressive aspects and it is here that the difference between marriage and civil partnerships can be found. Nussbaum states that marriage is taken to confer some kind of dignity or public approval on the parties and their union that makes the exclusion of gays and lesbians from the institution especially harmful and stigmatizing. However, given the ambiguity that the state demonstrates towards marriage, an exalted institution that almost anyone can enter in to, perhaps it is time to recognise its limitations. This is not to say that the extension of marriage to include people of the same sex is not to be welcomed. The point is that it should not have taken so long to get here. By excluding people of the same sex from marriage, the state implicitly makes a moral judgment about same sex relationships given those whom it does permit to marry. The extension of marriage to include same sex couples is to be welcomed, not because it affirms the capacity of people of the same sex to enter into loving and committed relationships, but because the exclusion of same sex couples is a pernicious form of discrimination that should have been recognised as such and remedied long ago.
Karl is a Lecturer at Pembroke College, Oxford and is a regular contributor to the OxHRH Blog.