by guest contributor Tom Freeman
In 342 AD the Christian emperors Constantius II and Constans issued a law in the Theodosian Code prohibiting same-sex marriage and ordering execution for those so married. Things have come on a bit since then. On 24th November at 10:30 am my partner and I have an appointment at Islington Registry Office to give notice of our intention to form a civil partnership. You might think this is a time for celebration, but you’d be wrong. Our notice will not be accepted. The reason? My partner is a girl. The Civil Partnerships Act 2004 says: ‘two people are not eligible to register as civil partners of each other if they are not of the same sex’. In the words of Sam Leith in the Evening Standard on Monday: ‘it is an abomination before Blair to see man and woman unnaturally so conjoined’.The mantra I have been droning to all and sundry is: ‘separate but equal isn’t equal at all’. Those of you who can remember history GCSE will recognise this idiom from segregation-era America. Derived from an act of 1880, ‘separate but equal’ became a legal principle, not overturned until 1954. Black people were entitled to public services putatively equal in quality – just as long as they were kept separate from services for white people. In Plessy vs Ferguson (1896), the landmark case in which Homer Plessy was prosecuted for riding in a white railway carriage, the majority of the court blindly refused to accept that the law implied any inferiority of black people. In reality the majority had accepted equal rights for the minority only on the condition that they were held at arm’s length. This, in my book, is not what equality is. The analogy with matrimonial law in the UK is obvious: the legal effects of Civil Partnership and civil marriage are identical, the rights and obligations are identical, yet one is for gay people only, and the other – with all the prestige that the ancient institution entails – for straights only.
This throws up a whole box full of ponders. First, is there something inherent in the nature of sexuality which dictates that long-term committed relationships between same-sex and opposite-sex couples are fundamentally different and must be recognised as such in law? In his article, Leith, using the analogy of apartheid, writes ‘the ANC weren't campaigning for the right of South Africa's black majority to call themselves white’. This implies that by seeking a Civil Partnership we are ‘calling ourselves gay’. Is this association of concepts something that can or should be broken down? Plenty of countries have managed it. While the Netherlands introduced registered partnerships in the 90s to give gay couples the benefits available to married couples, this didn’t stop them becoming, in 2001, the first nation to grant same-sex marriages. The Canadian Parliament approved the granting and recognition of same-sex marriages by redefining marriage as “the lawful union of two persons to the exclusion of all others” in 2005. Similar steps have been taken in Norway, Belgium, Spain, South Africa and Sweden.
But I’m being silly, aren’t I? This is all just semantics. Everybody, gay or straight, has the same rights, so where’s the problem? My second ponder therefore is: are labels really important? Leith goes on: The ANC ‘were campaigning for equality under the law. And that's what we've already got... things are pretty much okee-dokee in a society, I think, where the nomenclature is the only thing wrong with a law’. Are they, though? This comes down to the effect of names. Did anyone else notice that following Kevin McGee’s sad death, major newspapers used the word ‘husband’ to refer to his relationship to Matt Lucas, but put it in inverted commas? This is just one example of a trend. Civilly partnered couples are portrayed as imitating their married counterparts, but somehow falling short. I think this is a case of the media reflecting societal prejudices. But consider: how would attitudes be affected if we were no longer handed such an easy line to draw between proper couples and pretend ones? Would this eventually alter our perceptions? I genuinely don’t know. Maybe not. Maybe gay couples are glad to have their own institution and not be assimilated.
Which brings me to my final ponder. Who cares? Who actually are we representing here, except ourselves? How did we end up seeking to be a test case in the overturning of what seemed to us a gross inequality? It seemed like common sense. But if this is so self-evident why are others seemingly blind to it? There is no organised campaign in England on this issue, and a gay male friend tells me that interest in ours among gay men will be limited. I approached a certain prominent charity who were instrumental in lobbying for Civil Partnerships with my idea, and it was met with outright hostility. Does this in itself mean that what we are doing is wrong? Who gets to say? Can someone fill me in on this? I really should have checked.
Because of course we have now effectively excluded ourselves from the legal and economic benefits available to married couples – we are denied civil partnership by law, and we can’t back down now and go off and get married. If change does come, it will be very slow. I understand the Green Party has concrete plans to liberalise the law, but it looks like the Tories are on the way. Labour brought in Civil Partnerships, which is progress, but have no plans to go further. You could even say that accepting a compromise for the time being slows progress towards a goal (actually, it might even occur to a more cynical mind than mine that an understanding could have been reached with those lobbying for Civil Partnership that this would be ‘enough’). So for the time being, we’re kinda stuck.
That’s what’s been on my mind. Can separate but equal really be equal after all? What’s your view?
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