A law with two definitions

Weddings don’t often happen just after zero hundred hours. But the weekend of the 29th March was somewhat exceptional. Couples in Islington, Brighton, Northampton and beyond were poised for the last chime of midnight. At that moment, gay marriage became legal and they were to be its first proponents. There are some truly heart-warming images to be found in this article from The Guardian, marking the occasion.

Both the gay community and British society at large have been genuinely divided by this contentious piece of legislation. An overview of gay rights around the world leads us to conclude that in legalising gay marriage, Britain (not the UK, as it is not yet legal in Northern Ireland) has shown itself to be progressive. When there are parts of the world where being openly gay is becoming increasingly dangerous – Russia, Nigeria – our egalitarian response to the reality of the diverse relationships within our communities is to be applauded.

Nevertheless, there are plenty within our society who have fought against its introduction. The main Christian denominations and other religious communities have rejected it on principled grounds, arguing that henceforth marriage will have two definitions; the faith based understanding of it as the union of one man and one woman, and the now legal definition of two adults, gender no restriction. Yet some gay clergy are considering marrying their partners; an act of direct dissent that may yet cause further controversy within the church. Members of the gay community have questioned the need to replicate the model of heterosexual marriage, with Rupert Everett, David Starkey and other high profile gay men publicly expressing their distaste for the idea. Beyond these objections, there are many in parliament who argued, (whether or not they were sympathetic to the legislation) that there was no mandate for Cameron’s government to take this step, and that the Act was rushed onto the statute books without proper consultation.

It’s worth remembering just how far we have come in relation to this question. It is less than 50 years since homosexuality was still illegal in the UK; that the outlawed status of gay marriage was only actually established in 1971; and that the age of consent was only lowered to 16 in 2001. In researching this post, we reminded ourselves of the case of Wilkinson v Kitzinger 2006. Celia Kitzinger and Sue Wilkinson, renowned academics here in the UK, had married in Canada during 2003, when same-sex marriages became legal during Wilkinson’s term as a visiting professor at Simon Fraser University. Returning home, their relationship was ‘downgraded’ to the status of civil partnership. They took legal action, supported by Liberty, to have their status as a married couple recognised. They were ultimately unsuccessful, but the presiding judge’s comments hinted at what was to come. He acknowledged that they were being discriminated against, while at the same time defending such discrimination as being within the “margins of acceptability…” Just eight swift-passing years later we find ourselves in a very different situation.

The Conservative party has taken a mighty risk introducing this legislation. There are some who suggest they will lose a substantial portion of their loyal voters at the next election as a result. And from the perspective of the legal profession and us here at Prince Family Law, it will be interesting to note whether gay marriage (and the possibility of same-sex divorces) brings new case-law developments. But for now, we’ll simply offer our hearty congratulations to those couples who could not legally describe themselves as married on the 28th of March 2014, but, just a day later, found that they could.