Nick Turner on civil partnership, gay sex and tax avoidance
Lord Alfred Douglas’s memorable phrase, ‘the love that dare not speak its name’, referred to a silence imposed by the prejudice meted out against gays. It was assumed that tolerance would lift that silence, so that gays should be proud (or at least permitted) to be gay. The silence, therefore, surrounding current government proposals is, against this background, almost sinister. The popular understanding is that the Civil Partnership Bill1, introduced through the House of Lords a couple of months ago, will allow for gay marriages. But what does it really do?
A Bill is set out in legal language; it is not an essay in moral or social philosophy. The original consultation paper of 2003 spoke of ‘a framework for the legal recognition of same-sex couples’. The explanatory notes that accompany the Bill (all 112 pages of them) add nothing to this core idea. Its only direct reference to sexuality is in a footnote on p108, when it quotes the forecast ‘under the high take-up scenario’ that ‘around 3.3% of the lesbian, gay and bisexual population aged 16 and over will be in registered civil partnerships’ by 2050. The low take-up estimate is 1.7% in 45 years time (0.1% of the total population).
A tolerant society
For all the shrill complaints of bigotry, England is a tolerant society, and there is general good will towards those who have had it tough. Most people want to be ‘nice to gays’, to allow them to get on with their own lives, and if they want a ‘marriage certificate’ why not? It is unlikely that the Conservatives will oppose this Bill; its passage through Parliament is almost a foregone conclusion. Here is an opportunity to be nice, and where is the harm in that?
In so far as a deeper argument has been voiced, it is the common ‘ethical a priori’ form: this is unfair; justice must be done. When one partner in a marriage dies, the widow or widower pays no inheritance tax on the house they live in. Up until now, that is not the case for a ‘gay couple’. This is unfair; justice must be done.
The simplest answer would be to scrap all liability for inheritance tax on a property in which one lives. Instead we are offered what is called ‘a comprehensive package of rights and responsibilities’, so that gay couples can share all the benefits of those who are married. The problem with these ethical a priori principles is that they work one at a time. As soon as this legislation is passed, will it not be seen as unfair that heterosexual couples cannot share in the benefits of a CP, without taking on the far greater social, moral and historical baggage of the ancient institution of marriage. If other European countries have unisex CPs, why not England?
All about sex
If, therefore, proper civil equality were established between ‘gays’ and ‘straights’, the next stage would be to say how unfair it is that those who don’t have sex with each other should be excluded from the financial benefits. This Bill has a comprehensive set of schedules listing the prohibited degrees of relationship to a CP. Instead of seeing them as an implicit prohibition against incest, one could read them as lists of close relations, those most likely to be living in your house, to whom you might want to leave the property when you die. How unfair that they should be excluded.
If the tax, property rights and pensions benefits are to be extended only to those whose ‘relationship’ is sexual and to exclude all who share a bond of affection, care and responsibility through existing family relations, that seems, on the ethical a priori principle, to be unfairly restrictive. The only possible justification can be (remember this is the love that will not speak its name) that the same-sex relationship being given legal recognition is seen as a mirror-image or a moral and social equivalent of marriage.
The entire structure depends upon this foundation truth, that a CP is somehow ‘the same thing’ as a marriage. The justifications given (not of course in the formal legislation, but by those who campaign for it) are expressed in terms of love and faithfulness and caring. But whereas the New Westminster Celebration of Gay and Lesbian Covenants (New Directions, August 2003) is indeed a celebration of these social and personal virtues and little else, this has far, far greater consequences.
This Bill has 196 clauses, and 22 accompanying schedules, filling 258 A4 pages. Its weight is its most disturbing quality. Being nice to gays is, for a secular government, uncontroversial, but does it need 196 clauses? Allowing gay marriages may not accord with the Christian tradition, but this is a tolerant country, so if this were all that was involved, why not let it happen, so long as it does not harm anyone else.
‘So long as it does not harm anyone else.’ That mantra finds its breaking point in this Bill, for we are being drawn into a bewildering game of consequences. Where will it all end? Not with the passing of a ‘Gay Marriage’ Act. A ten clause Bill would be no problem, but this weighty volume is a potentially massive attack (albeit unwitting) on the social institution of marriage.
Some of the provisions are mind-bendingly bizarre. Make sense of this: Clause 49.1.c states that a CP is voidable if ‘at the time of its formation, the respondent was pregnant by some person other than the applicant.’ This is not a mistake; it does make sense; that is what’s bewildering. Or consider this. Schedule 3 provides for a married couple, one of whom has ‘changed sex’, or in legal terms been granted a full gender recognition certificate under Section 5(1) of the Gender Recognition Act 2004, to register a civil partnership in such a manner that it runs on without a break from the (now annulled) marriage. No similar provision is permitted for the reverse operation. Why?
There is more. The game of consequences has no end. Who might want to use Schedule 3? Here is one possibility. Do you realize that two-clergy couples will be better off financially in a CP than in a marriage (see Clause 187, which gives the government power to amend any General Synod measure on clergy pensions)?
We should not let this legislation slip through unnoticed. Perhaps some of it should be passed, but we ought to be worried. If this Bill is simply about a gut sense of justice, then it is not liberal enough. It is unfair to caring family members, and unfair to heterosexual couples who do not wish to marry. If this Bill is about redefining marriage (and it will do so even if that is not its explicit intention), then it is dangerously destabilizing and we ought to be very worried.
Nicholas Turner is the guardian of St Mary’s Well in Thornton-in-Craven.