Saving an honourable estate from a dishonourable prime minister
From Brother Ivo:
There are a variety of reasons to oppose the Bill currently before Parliament relating to gay marriage. In this post I am confining myself to one aspect and one only.
Some people have a genuine concern that this change to the institution of marriage will not be the last. The vehicle for such an extension would not be Parliament, but rather the Human Rights Act, which operates on a very simple incremental basis: ‘If X is accepted, why not Y?’; ‘If Y is approved, how can you fairly exclude Z?’. So it continues.
Accordingly, there is a legitimate fear that activist judges may reason that if the innovation that is gay marriage can be established on the premise ‘Why should they not if they love each other?’ or ‘How can we fairly discriminate against others such as bisexuals, polygamists or polyandrists?’
Polygamy alone has a much longer, and, indeed, biblical and anthropological history than gay marriage. Once you add in the complexities of ‘equality’, it is plain that once multiple definitions and innovations begin, it becomes increasingly difficult to draw any defensible line. Marriage becomes institutionally incoherent and far removed from its basis in countless societies as a context in which to bring up children. It has always been about this and not about personal lifestyle choice.
The European Court of Human Rights has already considered and ruled that the differentiation between gay civil partnership and heterosexual marriage is a lawful distinction and within what is known as the ‘margin of appreciation’ for any member state.
The ‘margin of appreciation’ can best be viewed as the tolerated differences which different countries may choose to adopt. Put colloquially, it is ‘wiggle room’. Spain may accept gay marriage but Italy may reject. The Court will accept such differences as reasonable acceptable and defensible between member states, but once the boundary is shifted within one state it is by no means certain that the momentum for change could be halted internally as judges exploit that momentum through their own prejudices.
Whether that established defence for marriage would withstand a determined attack by those seeking to ‘expand the envelope’ is by no means clear under the Bill as currently drawn. Extensions of the definition beyond gay marriage have not yet occurred in countries that have legislated for it. However, it may be that the campaigning groups in the UK are more passionate about this than those in other European countries.
Once, it was possible to assume that no reasonable judge would countenance a destruction of the institution of marriage, but that is no longer a safe assumption. In particular, the sole female Supreme Court judge, Lady Brenda Hale, has been keen to develop a line of jurisprudence, blurring the distinction between the married and the unmarried by imposing marriage-type obligations on those who have chosen not to be married. When one acquires de facto marriage rights simply through co-habitation – as she has propounded – it is difficult to see how marriage has a distinctive identity.
Rather more specifically, consider her remarks from 1980 which reveal an alarming attitude towards the protection of a traditional understanding of marriage – with or without gay people n the nominal ‘big tent’:
‘Logically we have already reached the point at which we should no longer be considering which marital remedies should be extended to the unmarried, but whether the institution of marriage continues to serve any useful purpose at all.’Such revolutionary attitudes towards marriage have proved no inhibition to her progress to the highest echelons of the Judiciary. Far from being ‘the unthinkable’ among those empowered to strike down the will of the people's representative, our unelected and unaccountable judges have plainly demonstrated the power and the inclination to supplant their minority views for those of the ordinary people of this country who still, to a great degree, believe that marriage is ‘an honourable estate’ as His Grace the Archbishop has so eloquently put it in the Marriage Service.
If we think it is, and even our somewhat devious Prime Minister still says that it is, then it is worth defending from his newly-made progressive friends and allies, not least in the Judiciary.
Unfortunately, the Bill before Parliament cannot be said to have the degree of certainty required. It can, however, be made stronger by two additions.
Brother Ivo is a simple man and no parliamentary draftsman, but he is sure that these safeguards can be practically enshrined.
First, the Government should legislate to indemnify any religious institution or private individual against the legal costs, damages or financial consequences of any extension of the definition of marriage, beyond that contained within the Bill.
Second, the Government should provide that ‘Upon any court accepting jurisdiction for any claim touching the definition of marriage based upon either the Equalities Act or the European Convention on Human Rights, both shall be repealed forthwith and the UK shall withdraw from the jurisdiction of that court’.
We are assured by the proponents of this Bill that our fears will not come to pass. It is therefore asking little of them or our activist judges to offer these assurances, which would constitute something precious, or alert of a value at stake, should they be tempted to ‘push the boundaries’ that little bit further, as progressives tend to do. It is as much in their nature as the defence of marriage is in that of Christian Conservatives.
The proposal is intellectually more modest than it sounds. It asks the progressive movement to ensure that it has ‘some skin in the game’, as our friends in the USA say. Put more elegantly, it balances the risks: the progressives secure their marriage for gay people; the less cavalier secure a stronger defensive position for marriage by having that line in the sand which is the ‘margin of appreciation’ replaced – with an electrified fence.
(Posted by Brother Ivo)