On 4 February 2014, MSPs passed the SNP government’s Marriage and Civil Partnership (Scotland) Bill into law, 105 votes to 18. Exemplifying the disunities of contemporary UK politics, the Scottish equal marriage debate has been largely insulated from the wider UK discussion. But this debate, and the new legislation, differs in important respects from the more cautious proposals agreed by Westminster last year.
Scotland’s relationship with gay rights has been decidedly ambivalent. In the 1960s, before devolution, Scotland’s dourer Presbyterianism, conservatism in matters of sexual morality and the influence of Scottish Labour politicians spiked the extensions of the liberalising influence of the Wolfenden Report north of the Tweed. While the Sexual Offences Act of 1967 did away with homosexual offences in England and Wales, Westminster did not pass equivalent legislation for Scotland until 1980.
With devolution in 1999, the Section 28 debate in Scotland was bitter and protracted. Stagecoach millionaire, Brian Souter, funded a private postal referendum on the Lib-Lab Scottish Executive’s proposals to eliminate the clause banning the “promotion of homosexuality” in schools, attracting around a million responses, just under 87% of them against scrapping the provision. While section 2A was eliminated from the statute book by the Scottish parliament in 2000, the experience was unpleasant and divisive one for Scotland’s LGBTQ community.
Perhaps reflecting this, in 2004 Holyrood avoided reopening a distinctively Scottish debate on the introduction of civil partnerships. Although family law is not a reserved matter, Holyrood gave Westminster consent to legislate on its behalf, and a pan-UK law was adopted. The recent free vote, in which 85% of Scottish law-makers endorsed the reform, exemplifies a quiet revolution in our attitudes towards sexuality.
Opposition to the proposals was largely cast in religious terms. Early on, the Scottish Catholic Bishops’ Conference emerged as the key voice opposing same-sex marriage, though their advocacy was characterised by its intemperance. The government’s announcement of its firm intention to legislate coincided with the revelation that the Archbishop-Elect of Glasgow linked, in public remarks at Magdalen College, the early death of Scottish Labour MP David Cairns with his sexuality. The Bishops’ spokesmen struck similarly inflammatory notes in their media appearances, struggling to articulate a comprehensible, populist case rooted in the theology of natural law.
Cardinal Keith O’Brien’s shock resignation in February last year represented a serious setback for opponents of the legislation, who struggled to recover their voice. It was left to a few scattered Tory, Labour and SNP parliamentarians to make the case against the legislation. It was a half-hearted performance.
So what will the Scottish legislation do? At its most basic, it provides for civil same-sex marriage and for religious and belief bodies to conduct ceremonies on an “opt in basis”. It also rationalises the classification of organisations empowered to conduct marriages. Under the status quo, for example, the law classifies weddings conducted by the Humanist Society as ‘religious’ in character (accounting for 15% of Scottish weddings in 2010, second only to Church of Scotland weddings, which made up 43% of the total). The legislation puts these atheistic and agnostic bodies on the more appropriate ‘belief’ footing.
It also extends the capacity of religious and belief bodies to register civil partnerships – an area where Scots family law has lagged behind England – and relaxes restrictions on where civil ceremonies can be conducted. For those organisations so minded, yesterday’s legislation represents a substantial extension of religious freedom to conduct legally effective marriage and civil partnership ceremonies.
Most significantly, the legislation also eliminates the iniquity of making gender recognition contingent on divorce or dissolution of an existing civil partnership, obliging trans people to make a brutal and unnecessary choice between legal recognition of their gender, and continuing legal recognition of their relationships.
But yesterday’s parliamentary session was also marked by its unfinished business, particularly with respect to civil partnerships. With the gendered nature of marriage being eliminated, how can limiting civil partnerships only to same-sex couples be justified? The Cabinet Secretary, Alex Neil, made it clear that more change is coming speedily down the line before the Scottish parliamentary election of 2016.
Should the two parallel schemes be done away with altogether, folding civil partnerships into marriage, or is there something distinctive about civilly-recognised coupledom, distinct from marriage, which is worth preserving and extending? Another controversy, for another day.