A modest proposal

For some years now, Northern Ireland has been debating the introduction of marriage for same-sex couples.  Polls show strong support for such reform amongst the public.  A majority in the Assembly now supports change but, due to the lack of sufficient cross community support in the chamber, equal marriage currently remains elusive. 

England and Wales, Scotland, the Isle of Man, and the Republic of Ireland have all extended marriage to same sex couples. This may be a persuasive factor.  That said, the fact that ‘everyone else is doing it’ is not a compelling reason in itself to follow suit.  Northern Ireland must decide for itself.

While the prospect of same-sex couples marrying may seem radical to some, I suggest that it is in fact a relatively modest proposal.  Same-sex couples in Northern Ireland may already enter into civil partnership, and have been able to do so for 11 years now.  Civil partners enjoy virtually all of the same rights and obligations as married couples.  There are some largely technical distinctions, but otherwise the differences are wafer thin.

The very fact that there are two separate regimes for recognition of same-sex and opposite-sex couples is significant, but for reasons that are unsettling. The existence of two separate regimes smacks of a ‘separate but equal’ approach that divides ‘us’ from ‘them’, that marks gay couples out as unusual and implicitly inferior.

Many people hold genuine religious views about marriage. It is important to bear in mind, however, that the marriage of which I speak here is civil marriage, marriage in the eyes of the law.  The proposal to extend civil marriage to same-sex couples does not in any way affect the right of religious denominations and bodies to retain their particular understanding of religious marriage as a heterosexual union. Indeed, in England and Wales churches are free to refuse to marry same-sex couples (and in the case of the Church of England legally prevented from marrying gay couples). In the Republic of Ireland, the Marriage Act expressly preserves the freedom of all faiths to continue their practice of only marrying opposite-sex couples.

Those who maintain that marriage is exclusively for the purpose of raising children should bear in mind that the law places no upper limit on the age of marriage. Two 90 years olds may feasibly marry, though there is no real prospect of having children.  A marriage may be avoided if the parties cannot consummate it, or wilfully refuse to do so, but this does not require an ability or intention to have children.  The ability to procreate is not a prerequisite for a valid marriage. Almost 70 years ago, in a case called Baxter v. Baxter, the Lord Chancellor, Lord Jowitt, rejected the proposition that in law that the procreation of children is the, or even a key purpose of marriage. “It is indisputable,” he said:“…that the institution of marriage is not necessary for the procreation of children, nor does it appear to be a principal end of marriage as understood in Christendom.”

By the same token, being married is not a prerequisite for having children. 43% of all children born in Northern Ireland in 2012 were born to unmarried parents.  Bear in mind that many same-sex couples (mostly women) are already caring for and raising children.  Multiple international research studies demonstrate that children being raised by such couples fare at least as well as those raised by opposite-sex couples.  

The fact that many gay couples wish to marry, far from being a rejection of mainstream values, is arguably a hearty endorsement of marriage.  Indeed, those who advocate for access to marriage by same-sex couples are taking a conservative approach, one that appeals to tradition and family, and that copperfastens rather than challenges the privileged position of this age old institution.  Indeed, for many LGBT people the value of marriage lies in its affirmation of family ties. Same-sex couples wish to share in the celebrations of family life on the same basis as our brothers and sisters.  Far from being radical or ground-breaking, the aspiration to same-sex marriage is arguably traditionalist and pro-family in its fundamental orientation.  As one lady remarked to me (with a twinkle in her eye) during the south’s marriage referendum campaign: “Sure, I’ve been married myself for 50 years. I could hardly vote against it.”

Extending marriage to same-sex couples sends a profound and important message of acceptance and inclusion to LGBT people. In practical terms, however, the impact on the day-to-day lives of heterosexual people is modest to negligible. In the Republic, opposite-sex marriages outnumber same-sex marriages by around 20 to 1. Bridal magazines still overflow with blushing brides. Hen and stag parties march on undaunted.  Churches continue unfettered in their practices of faith. Life proceeds as normal.  But there is a little more hope, and a little more love. In these uncertain, anxious times, that can hardly be a bad thing.

Dr Fergus Ryan is a Lecturer in Law at Maynooth University, Co. Kildare.