1. SCOLAG 405, July 2011, Extract
SCOLAG
L E G A L J O U R N A L
EXTRACT PAGES
Issue: 405
PUBLISHED: July 2011
PAGES: 162-164
TITLE: Strange Bedfellows in the Pro-Marriage Campaigns
AUTHORS: Brian Dempsey
CITE AS: 2011 SCOLAG 162-164
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2. Family Law Adult Relationships
Strange Bedfellows in
the Pro-Marriage Campaigns
Brian Dempsey* considers the pro-marriage campaign being pursued by LGBT organisations
D emands for the opening up of marriage to same-sex cou
ples are on the increase in Scotland and the Scottish Gov-
ernment is now committed to consulting on “same-sex
“special status of marriage” in consultation documents, legis-
lative memoranda and parliamentary debates as the price for
attaining progressive reform. In the UK the Conservatives are
marriage”.1 What appears to be absent in Scotland as yet is any now in government having stood on a “pro-family/pro-mar-
debate on whether the adoption of a pro-marriage demand as riage” platform which would have damaged the lives of adults
a political tactic is appropriate for LGBT communities or for and, more especially, children living “outside of wedlock”:
society as a whole. This article was prompted by the Equalities while a Tory victory in Scotland is unlikely the possibility of a
and Human Rights Commission in Scotland’s recent document lurch to the right which would allow for pro-marriage attacks
Equal Access to Marriage: Ending the segregation of same-sex cou- on modern, equitable law and policy cannot be ruled out.
ples and transgender people in Scotland2 (the EHRC Report) and But now we are seeing a new set of people taking up the
the author’s experience of the EHRC’s symposium on the topic cudgels for the “special status of marriage”. Having previously
in January where any expression of doubt as to the validity of supported civil partnership for same-sex couples and rejected
a pro-marriage stance was very much frowned upon. campaigning for the opening up marriage, LGBT rights organi-
sations such as the Equality Network are now pressing for what
Progress they frame as “equal marriage”.8 In this they have the support
For thirty years Scotland has seen sustained, progressive of some politicians including Patrick Harvie MSP who has done
reform of family law which has reduced the role of marriage in as much as anyone in the Scottish Parliament to promote the
legal recognition of responsibilities and rights. In adult rela- rights of LGBT people and has also been an outspoken critic of
tions we have had acceptance that, e.g., protection from (and particular target of) right-wing, pro-marriage political
domestic abuse should not depend on the couple being mar- campaigners. This embracing of marriage as the “gold stand-
ried.3 Children are no longer labelled as bastards by the law ard” of adult relationships is a surprising and disappointing
and their welfare is no longer widely undermined by rules re- development.9
lating to the marital status of their parents.4
We have also seen recognition of same-sex couples in areas The problem with pro-marriage campaigns
such as domestic abuse, delict and, of course, the new status of The problem with these campaigns is that they are based
civil partner.5 We have even had limited recognition of the in- on discrimination against adults and children who are not in
terests of unmarried and unempartnered cohabiting couples families headed by a married couple. While we are fortunate
and their children in the Family Law (Scotland) Act 2006. to live in a jurisdiction that, in domestic law, has swept away
much of the legal discrimination against those who are not
All of this significant and welcome progress has been about
moving away from making responsibilities and rights depend- married, some legal discrimination persists and denigration of
ent on a person’s marital status. All of it has been done in the unmarried couples and their children remains widespread in
face of opposition to equitable, progressive reform on the part some areas of political discourse and in many areas of the media.
of reactionary pro-marriage forces which assert that the “spe- Pro-marriage activists, whether of religious fundamental-
cial status” of marriage in society must be preserved in political ist bent or LGBT persuasion are attracted to marriage because
and policy discourses and, if possible, in law. One of the (un- that institution is privileged in society, because it has “special
fortunately necessary) costs of devolution has been the status”. Leading LGBT activist, Tim Hopkins, made clear that,
encouragement of right-wing political forces such as the Chris- despite conferring all the responsibilities and rights of mar-
tian Institute, CARE Scotland and the Evangelical Alliance riage, the status of civil partnership “is an inherently
which have opposed every proposed reform that is not predi- second-class status” (EHRC Report, p18). The pro-marriage
cated on promoting marriage. campaigners who want marriage opened up to same-sex cou-
These organisations are entitled to take a dim view of pro- ples want it because married couples are seen as, and are often
tections for unmarried adults or of equal treatment of children treated as, “first class” – “first class” compared to “second or
regardless of whether they are (in their terms) legitimate or standard class” unmarried couples, “first class” compared to
illegitimate, but, thanks to the efforts of politicians and aca- “second or standard class” single parents, “first class” com-
demics who have argued against pro-marriage laws and policies pared to “second or standard class” civil partners.
and in favour of “equality for all” regardless of marital status, One concrete example from the UK election campaign il-
such pro-marriage campaigners have had little success in re- lustrates the issue nicely. During the campaign the Tories
sisting progressive legal reform. But that does not mean that proposed a small tax break for married couples.10 Critics rightly
discriminatory law and policy, with its “marriage as gold stand- pointed out that this pro-marriage policy would harm adults
ard” mantra at its core, cannot make a comeback. While and children in other family forms. But because of human rights
ultimately unsuccessful in stopping progressive reform, pro- based discrimination law, any privileging of married couples
marriage forces have had some success in influencing individual and their children over unmarried couples and their children
politicians and the overall political discourse6 and, along the would almost certainly have had to be extended to civil
way, have caused untold damage to individual LGBT lives by, partnered couples and their children. So a strange sort of equal-
e.g., their support for the hateful “Keep the Clause” campaign ity would have ensued – equality of privilege as between adults
against repeal of Section 28.7 In Scotland politicians have been and children living in married or civil partnered while promo-
forced to pander to the pro-marriage agenda by asserting the tion of discrimination and harm against adults and children
Page 162 2011 SCOLAG (July)

3. Strange Bedfellows in the Pro-Marriage Campaigns
not living in those “gold standard” family forms. It is doubt a socially conservative campaign, concerned with access to a
about the recognition of their relationships as “gold standard” privileged, segregated status should use the language of anti-
or “first class” compared to those of “base” or “second class” apartheid struggle may strike many as offensive. Indeed the
mortals that exercises pro-marriage campaigners – you cannot pro-marriage campaign runs directly counter to the principles
move out of your perceived position as second class (civil part- underpinning one of the proudest moments of the Scottish
ners) and join first class (spouses) if the class system is abolished LGBT movement’s history when in 1987 the Scottish Homo-
and everyone is equal. sexual Rights Group took a leading position in expelling the
Gay Association of South Africa (GASA) from the International
Critiques Lesbian and Gay Association on the grounds that GASA was a
If politicians and LGBT rights campaigners say they are predominantly white group which did not take an anti-apart-
unaware of the regressive nature of pro-marriage campaigns heid stance.16 The view expressed by some in the debate – “it’s
there really is no excuse for that. Feminist writers and activists a pity apartheid is so rotten but that’s not an LGBT issue” was
have extensively critiqued the role of marriage in society and rejected back then – a principled position that is diametrically
law and have been doing so for well over a century.11 If our opposed to the pro-marriage campaign that seeks equality for
politicians and activists are unaware of, or dismissive of, femi- some rather than challenging fundamental inequality and seek-
nist critiques they should at least be aware that, as long ago as ing equality for all.
1980, Scottish Law Commissioner Eric Clive explained how
marriage was an unnecessary legal concept.12 If awareness of Two real problems
pre-devolution positions is a step too far then they should at There are two genuine problems with the current regula-
least be aware that much more recently Kenneth Norrie has tion of adult relationships that pro-marriage campaigners use
explained how marriage is not constructed in a way to meet to justify their position: the treatment of trans people and the
the needs of same-sex couples and that we really should be question of religious celebration of civil partnerships.17 The
looking for something better.13 source of these two legitimate problems with our marriage laws
Powerful critiques of the “gay marriage” bandwagon in the is that the state allows religion to play a role in what should be
USA by LGBT academics and a secular matter: colluding with
activists are particularly illumi- the privileging of marriage is
nating about the damage such If politicians and LGBT rights campaigners not the answer.
campaigns cause to LGBT com-
munities and to society as a
say they are unaware of the regressive The rule that trans people
cannot be recognised in their
whole. It should be noted, how- nature of pro-marriage campaigns there appropriate (“new”) sex while
ever, that the campaign is really is no excuse for that. Feminist writers remaining married or in a civil
significantly less damaging in and activists have extensively critiqued the partnership18 – because that
Scotland thanks to the extensive
role of marriage in society and law and have would then result in a marriage
decoupling of legal recognition between parties of the same sex
and protection from the institu- been doing so for well over a century. or a civil partnership of parties
tion of marriage. Anyone of the opposite sex – has caused
claiming to be a thoughtful pro- a great deal of distress where
ponent of pro-marriage demands should read and reflect on the parties themselves are happy for the relationship to con-
Nancy Polikoff’s book Beyond (Straight and Gay) Marriage: Valu- tinue. That rule should be repealed so that in those particular
ing All Families under the Law and view Polikoff’s 2009 Roger S circumstances the marriage or civil partnership continues, with
Aaron lecture on the importance of valuing all families rather divorce or dissolution available should the relationship have
than privileging marriage.14 Polikoff explains with great care in fact broken down. Although this would result in a relatively
how equality cannot be achieved by seeking access to a privi- small number of same-sex marriages the justification would be
leged status, how conservative LGBT leaders in the US have that people are already in these relationships and there would
moved the debate to the right and how issues of class and race be no need to denigrate civil partnered or cohabiting couples
in particular have been marginalised. If having considered as “second class” compared to marriage. The rule was intro-
Polikoff’s evidence people persist in pursuing access to the privi- duced as a sop to right-wing pro-marriage groups and should
leges of marriage then at least no one can say “forgive them, never have been enacted.
they know not what they do”. The other rule that is genuinely unfair is the one barring
religious celebration of civil partnerships: the answer is to cre-
Why not equality for all?
ate equality for all by removing religious celebrants from the
When challenged at the EHCR symposium about abandon-
process of marriage. Some of those fighting for the opening up
ing the previous aim of “equality for all” a clear statement was
of marriage to same-sex couples say this is necessary to allow
made that, while many might like to challenge broader inequal- them to celebrate their union “in the eyes of God” (Rev Sharon
ity of treatment, LGBT equality had to be fought for within the Ferguson, EHRC Report p19). In fact religious groups which
parameters of the current system. In other words, if we have a choose to bless same-sex partners are free to do so: the ban
society that treats unmarried adults and their children less fa- relates to the formal legal process of becoming civil partners
vourably than married persons then what we must do is fight which can only be conducted by a registrar and not, as with
for equal access to marriage privilege for some same-sex cou- marriage, by a celebrant of certain state-recognised religious
ples rather than equality for all people (LGBT and heterosexual) groups. The way to ensure equality for all is to remove reli-
whether they are in state-approved relationships or not: the gious celebrants from the legal process of marriage so that it,
position is “it’s a pity that unmarried people are discriminated like civil partnership, is a purely secular matter. If the parties
against but that’s not an LGBT issue”. wish to have the legal formalities preceded or followed by reli-
Pro-marriage LGBT campaigners are fond of appropriat- gious celebrations then they should be free to proceed in
ing political language from anti-racist struggles, in particular whatever way they choose, provided their particular deity ap-
words such as “segregation” and even “apartheid”.15 That such proves and no one is harmed. The current system results in the
2011 SCOLAG (July) Page 163

4. Strange Bedfellows in the Pro-Marriage Campaigns
state privileging certain religious groups over others: the in- First Minister Alex Salmond came out clearly as supporting
volvement of religious groups in determining a person’s legal “gay marriage”. This refreshingly open expression of his per-
status should be eradicated, not promoted. sonal view seemed to do the SNP no harm with the electorate
and suggests that Brian Souter’s cash is not influencing social
Who supports marriage? policy and that has to be welcome.22 But we should respect-
The EHRC symposium on “equal marriage” was carefully fully decline Mr Salmond’s (genuine and kindly meant) offer
constructed to exclude any expression of doubt about whether that some LGBT people might join the marriage club and in-
seeking access to the privileged status of marriage – i.e. equal- stead insist on equality for all.
ity for some, rather than equality for all – was an appropriate 1. Nicola Sturgeon response to question S4W-110 from Patrick Harvie, 2
goal of either the LGBT communities or the Commission.19 In June 2011. As pro-marriage campaigners make clear, the demand is for
lieu of discussion, the “ordinary people” in the audience were opening the current institution of marriage with all its baggage and not
permitted to ask various expert panels about how best to pro- for anything new such as “gay marriage” or “same-sex marriage”.
mote the pro-marriage message and were allocated to and 2. Available at http://xrl.us/bkuwxd
shepherded through workshops tightly controlled by the or- 3. Matrimonial Homes (Family Protection) (Sc) Act 1981
ganisers.20 Given this aversion to discussion of the merits for 4. Law Reform (Parent and Child) (Sc) Act 1986. Children of unmarried
LGBT communities of a pro-marriage stance we might wonder parents are still discriminated against in relation to, eg, the imposition of
about the levels of support for the EHRC’s position. parental responsibilities upon their parents, Children (Sc) Act 1995.
Evidence of support for the pro-marriage campaign among 5. See the Civil Partnership Act 2004: the 1981 Act noted above and the
Damages (Sc) Act 1976 have been amended to extend protection beyond
individuals identifying as LGBT or as supporters of LGBT rights
married couples to both mixed-sex and same-sex cohabiting couples.
is scarce. Approximately 400 people who completed an Equal-
6. Evelyn Gillan (2008) Influencing Family Policy in Post-Devolution Scot-
ity Network survey said they supported opening marriage to land (PhD Thesis; University of Edinburgh)
same-sex couples (EHRC Report, p15). While this represented
7. See Dempsey (forthcoming) “Lesbian, gay, bisexual and trans people and
85% of all those responding it is likely that those who chose to the law” in Mark Mulhern (ed) Scottish life and Society: Law
engage with the process were those who had a personal com-
8. See, eg, Equality Network & Scottish Transgender Alliance Manifesto
mitment to promoting the institution of marriage – it tells us 2011 at http://xrl.us/bkuo3m
nothing about the proportion of LGBT people who are pro- 9. The front page of Patrick Harvie’s own website, www.patrickharviemsp.com/
marriage, only that 400 responses in favour of marriage were about-patrick/, notes that his first involvement with the Parliament was in
received. The LGBT Network’s petition to the Scottish Parlia- 2000 when he gave evidence as an LGBT youth worker on the negative
ment was supported by a total of 1007 signatures and the impact of Section 28 and the Keep the Clause campaign, see http://xrl.us/
National Union of Students’ petition secured 1309 signatures bkuwxw. Note that the Keep the Clause witnesses are explicitly “pro-
marriage”.
(out of a student population of approximately 230,000 and an
NUS Scotland membership of about 200,000). As psephologist 10. See, eg, “Tories to offer tax breaks for married couples”, 10 April 2011,
http://xrl.us/bku456
John Curtis reminded the audience at the symposium “the vo-
11. The literature is vast, but see, eg, Susan Moller Okin (1989) Justice, Gen-
cal are not necessarily the numerous” (EHRC Report, p33).
der and the Law and Nancy Polikoff (2000) “Why lesbians and gay men
More robust evidence for support for marriage comes from should read Martha Fineman” 8 Journal of Gender, Social Policy and the
surveys of the public as a whole. John Curtis provided the sym- Law 167.
posium with fascinating evidence of significant majority 12. In John Eekelaar, ed, (1980) Marriage and Cohabitation in Contempo-
support for allowing same-sex couples into the marriage club rary Societies.
(EHRC Report, p21-30). It might be food for thought for homo- 13. K McK Norrie (2000) “Marriage is for heterosexuals, may the rest of us
phobic religious “leaders” that in 2006 57% of Scottish people be spared from it” 12 CFLQ 363.
identifying as being of the Catholic faith supported marriage 14. Currently available at www.youtube.com/watch?v=EDynaeB4MUI
for same-sex couples with only 25% opposed. Even among Tory 15. See, e.g., http://xrl.us/bkuwxy
supporters support for same-sex marriage was at 42% versus 16. Dempsey (1995) Thon Wey, p21
30% opposed. 17. It should be noted that such campaigners tend not to highlight other
issues such as the economic plight of lgbt people who are single parents
Conclusion or who are seeking asylum.
What pro-marriage campaigners value is not equality but 18. S.5 & 5A, Gender Recognition Act 2004
the institution of marriage. Access to a privileged status only 19. The notice for the symposium stated that “[t]his event will investigate
means something when others are treated less well – it is being the perceived (sic) barriers to equal marriage and seek to produce a
lumped in with all unmarried people (the other “second class” roadmap for legislators as to how to make equal marriage a reality …”.
people, the other less well regarded) that so offends pro-mar- 20. In addition, every question was summarised and glossed by the chair
riage campaigners. before being passed to the experts which had the effect of destroying
any sense of debate and deadening any energy in the room. To be fair to
Opening marriage to same-sex couples seems inevitable the Equality Network and LGBT Youth Scotland, whose names were
given that LGBT organisations are seeking membership of the also on the conference masthead, this controlling approach is not usu-
club for their more conformist constituents and more and more ally a feature of their own events and indeed was resented by some EN
representatives present.
states are willing to assimilate and privilege some conformist
LGBT individuals.21 In Scotland at least, it is to be hoped such 21. For the inevitability of this process see Elaine Sutherland’s comment on
Schalk v Austria in “A step closer to same-sex marriage throughout Eu-
a move will not strengthen the hand of reactionary social forces rope” 2011 Edinburgh Law Review 97
too much, given the efforts of countless individuals, voluntary
22. cf the scare story “Salmond backs gay marriage SNP leader risks alienat-
organisations, politicians and academics over many years to ing religious voters and biggest donor”, The Herald, 24 Apr 2011. Souter,
move the law and policy debate away from the “marriage as the biggest single donor to the SNP, was the champion of the homopho-
gold standard” position. bic “Section 28” campaign in 1999.
Of course, widespread support for allowing respectable * Brian Dempsey is a lecture in law at the School of Law,
LGBT people into the marriage club indicates a welcome shift University of Dundee
away from the homophobic views that dominated Scotland for
so long. Shortly before the Scottish general election in May 2011
Page 164 2011 SCOLAG (July)