As a piece of policy-making, same sex marriage sets a bad precedent

by Kevin Meagher

Putting aside the question of whether same sex marriage is a modest extension of equal rights for gay and lesbian couples or the handcart society will be pushed to hell in – and judged purely as an exercise in policy-making – this week has been a disaster.

The refrain that the measure was not in any party’s manifesto at the last election and didn’t even make it into the coalition’s programme for government is no less important given the frequency with which it’s cited as a grievance by opponents of the bill.

Neither, for that matter, was there a green paper to allow proper deliberation; just a rushed public consultation, which saw a significant majority of respondents strongly opposed to the idea.  And as it now stands, the legislation is lopsided with the failure to extend civil partnerships to heterosexual couples.

Moreover, the law of unintended consequences means most religious communities who opposed the encroachment of the state into their affairs are left with threadbare assurances they will be unaffected by the change. Case law will in due course ensure that they are.

The church hall test will see priests and vicars forced to defend a policy of letting heterosexual couples use their premises while barring gays and lesbians. Meanwhile the charitable status of religious organisations who do not readily accept this new definition of equality will be endlessly challenged. The culture war will rage long after this week passes.

But behind this inexorable fallout lies the basic failure to quantify the need for legislation. Why has same sex marriage become such an urgent cause? After all, the numbers of gay and lesbian couples entering into a civil partnership – which accords all the main legal benefits of marriage – has been in decline pretty much since the measure was first put on the statute book.

There were 15,437 civil partnerships in 2006, the first full year that the measure was in place. This dropped to 8,728 in 2007 – a 44% fall in the first year – and the last available figures for 2011 shows it falling still further to just 6,795 – a 56% drop in just five years.

Of course this could be because gay and lesbian couples are boycotting civil partnerships as they don’t feel the measure offers them true equality, but this is not a point campaigners have made.

Same sex marriage is not, in the vernacular, evidence-based policy-making.

Upholding the principle that gay and lesbian relationships are fully equal is a fair enough cause, but is the main purpose of our parliamentary process satisfying the frustrations of campaigners with the existing law, regardless of the scale of the grievance?

If same sex marriage is an issue of general public importance then surely it should be discussed openly during an election campaign, put in a manifesto, voted on and then enacted (assuming majority consent), with the weight of public acceptance put behind it?

None of this has happened and whatever side of this particular issue you come from, it is clear there is a vocal and passionate lobby which holds a diametrically opposite view. There is little public consensus and we are left with one side of public opinion legislating over the heads of another.

This is never an ideal situation, but is usually managed by those who are seeking change, of whatever kind, obtaining a clear electoral mandate to do so (as was the case, for instance, with Labour’s fox-hunting ban).

Indeed, with coalition government possibly becoming the norm, how can voters make sense of who to support when parties not only break their commitments (the Lib Dems and tuition fees springs to mind) but embark on significant legislative change which seems to materialise out of the ether?

The left should be particularly concerned about the precedent set by this week’s manoeuvrings.

What if the next Queen’s speech contains measures to dramatically erode workplace rights, or to curtail environmental protection, or to scrap the minimum wage, none of which are in the Conservative or Lib Dem manifestos?

In such a scenario it is worth bearing in mind that Labour frontbenchers would automatically reach for exactly the same accusation that opponents of the SSM bill did this week: “You have no mandate from the electorate.”

Kevin Meagher is associate editor of Labour Uncut

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13 Responses to “As a piece of policy-making, same sex marriage sets a bad precedent”

  1. Just picking up on the poor use of civil partnership statistics.
    Here in Brighton & Hove we were proud to be the first to open a civil partnership waiting list in anticipation of that legislation. As we saw here and around the country there were many couples who had waited decades to have their relationship officially recognized so unsurprising there was a first year surge. Hardly surprising either that figures should continue to fall recently as some couples wait for the legalization of same sex marriage rather than enter into a civil partnership….

  2. swatantra says:

    It presents a legal nightmare and a redefinition of what marriage is.
    It’ll keep the lawyers and judges busy for another 20 years over issues of rights responsibilities custody inheritance pensions co-habitation and 101 other things and anomolies and exceptions to the rule which are bound to arise as more and more personal cases emerge. Family Law is going to be turned on its head and legal textbooks are going to have to be re-written if all this goes ahead.

  3. Ed says:

    I was about to make the same point as Simon Burgess! Awful use of statistics.

    Indeed the ONS page, which you link to, explains that the fall in the rate of civil partnerships can be explained by the early rush of long-term partners getting hitched as soon as possible.

  4. Kevin says:

    Simon – the figures I cite are accurate, so not sure how they are a ‘poor use’ of stats.

    Also, have you got any evidence that gay and lesbian couples have been holding off entering into a civil partnership while waiting for same sex marriage legislation? There was hardly any talk – or prospect – of the idea coming to fruition before last year, so how do you explain the significant fall in civil partnerships between 2007-2011?

  5. Kevin says:

    Ed – did the figures fall after 2006 or did they not?

    The point of the piece is that SSM is a measure where there is little empirical evidence of necessity yet it has become a cause celebre, truncating the policy-making process and setting all sorts of precedents.

  6. paul barker says:

    Im sorry but you Labour types just dont get things like Freedom & Equality do you. The whole debate over Equal Marriage has been enormously healthy with Love & Tolerance (mostly) beating prejudice.
    The idea that Governments cant do anything contraversial unless it was in their manifestos is just crackers, nobody reads the damn things as it is.

  7. Tom Higgins says:

    The reason for the fall since 2006 is explained really quite clearly on the ONS website:

    “The number of civil partnerships in the UK peaked in the first quarter of 2006 at 4,869. The high numbers for 2006 are likely to be a result of many same-sex couples in long-standing relationships taking advantage of the opportunity to formalise their relationship as soon as the legislation was implemented. The number of civil partnerships has since fallen to an average of 1,699 per quarter in 2011. This trend reflects that found in Norway and Sweden where there was a particularly high level of formations immediately after legislation was introduced, followed by a few years of stable numbers at a lower level and an increase in most recent years (Andersson et al., 2006).”

    Do you think that’s an unreasonable explanation in any way? Additionally it isn’t true that there has been a year-on-year decrease in civil partnerships, they number went up in 2010 and 2011 – from 6281 in 2009 to 6385 in 2010 and 6795 in 2011 (or if you prefer quarterly averages 1570, 1596 and 1699). Overall I’d have said the trend is big bang in 2006 and 2007 when civil partnerships were introduced followed by relative stability since. So it’s not unreasonable to say you’ve misinterpreted the stats a bit.

    I don’t think it sets much of a precedent either. This government has introduced several measures which were not included in their manifesto and which faced at least as much opposition as gay marriage (eg at least a vocal minority) – the bedroom tax, shares-for-rights, reduced benefit upratings, the VAT rise etc etc. I imagine you could probably identify similar examples under the last Labour government. It’s not great, but it happens.

  8. Kevin says:

    Thanks Tony – you seem to think you have some slam dunk point to explain the decline in civil partnerships since 2006. Hardly.

    The figures I cite are quite clear and I hyperlinked them for clarity’s sake. It’s blindingly obvious there was a Year 1 spike with those most enthusiastic taking the chance to access a CP. That does not escape the fact that a year later the figure dropped by nearly half and remained on that trend until 2011. Demand to graduate CPs into SSM simply isn’t borne out by the figures. Not when the change has major ramifications for other groups.

    But even putting that to one side, the argument for SSM would be altogether clearer and stronger if it had been made openly and clearly before the election. Why are campaigners for it so reluctant to concede that basic point?

    You cite the Bedroom Tax as an example of a policy pushed through that wasn’t in the Tories or Lib Dem manifestos. True, generated quite a furore I seem to recall with campaigners saying the government had…yep, no mandate to act.

  9. Craig Nelson says:

    Apart from the hysterical untruths that the State will coerce religious bodies or that case law can in any way affect their freedoms when the bill provides an opt in mechanism as well as a guarantee for individual ministers once a religious body opts in all of which is underpinned by article 9 protection under the ECHR.

    I would just point out that neither the decriminalisation of homosexuality in 1967 nor Civil Partnerships were in the manifesto of the time – presumably the author of the article is against both reforms as a result.

    I think the Labour Party believes that Parliament has a constant duty to reduce unfairness to minorities and push back discrimination. The Parliament’s duty is to look after its people.

  10. Kevin says:

    Craig – Civil partnerships were subject to both a green and white paper, allowing proper deliberation. Evidently this isn’t the case with SSM. It’s a flawed piece of policy-making – the point of the piece.

    The caveat about not forcing religious communities to conduct SSM services will not extend to their charities, schools or other organisations. This is where trouble will flare, the culture war (which is so damaging for the left) will rage and the lawyers will have a field day.

    Given CPs – of which I have always been a supporter – conferred all the legal rights of marriage for gay and lesbian couples, you can hardly stack up a case that says rushing SSM through parliament – regardless of how the measure affects most faith communities – is ‘push[ing] back discrimination.’ That particular battle ended 8 years ago and the take-up figures for CPs cited in my piece speak for themselves.

    Have to say, my own views on SSM were pretty well captured this time last year by former culture secretary Ben Bradshaw:

  11. Martin says:

    Leaving aside the statistics argument (“Facts are stubborn things, but statistics are pliable.” to quote Mark Twain).

    How can the Labour Party seriously campaign against other Tory policies that weren’t in the manifesto when we let this one run through without argument? How do you explain to a hard pressed mother on the doorstep that the Labour Party was really concerned about SSM, but seemed strangely quiet on the bedroom tax – how do you get that person to vote Labour?

  12. Kevin,

    I think your piece (and some of your previous ones) raises some interesting points which it would be good to discuss. I’ve blogged for Left Foot Forward on the issue this week and quite a bit on the Catholic church and sexuality over the last few months – I’m a gay, practicing Catholic, so have (perhaps inevitably) arrived at a different position on same sex marriage. But I do think it’s more complicated than the voting on Monday and Tuesday suggests. It often is of course.

    One thing that does concern me about these debates (I’m not pointing the finger) is the implication that faith communities and LGBT communities are somehow mutually exclusive, whether intended or not on the part of the protagonists on either side. For those of us who occupy both spaces (and in reality that’s a lot of people even if they don’t all want to blog about it) it can be very frustrating.

    The idea that my entirely normal, mostly unremarkable, and I hope respectable life, is a matter of conscience for people is something I find as hard to grapple as any difficulty they might have with it. I think sexuality is both nature and nurture. I’ve been pretty clear I was gay from a young age and made choices about relationships based on that. But my sexuality isn’t a lifestyle choice. It’s an integral part of who I am. Most importantly (and I’ve never traded bible quotes) I don’t think it’s wrong. How could I?

    I mention this because I think it’s the notion that being gay is a lifestyle choice (again I’m not pointing the finger) which underpins much discussion on the tension between faith and sexuality. I don’t doubt that such a tension exists and accept it has to be worked through, but for those of us who are gay and of faith (in my case Catholic) it has to be reconciled. And for a gay person of faith that will be different from any reconciliation that a heterosexual person has to contemplate. For us it’s not a question of supporting ‘rights’, it’s a question of the right to be who we are.

    I don’t believe that reconciliation should have to be contingent. It may involve an acceptance of difference yes – equality doesn’t have to be about uniformity. But I can’t accept that it involves a difference which is second best, rights which are qualified or, perhaps most importantly, a situation which protects the right of institutions to teach that my unremarkable life is abnormal or immoral. Again – why would I?

    I’ve now said more than I’d intended when I started to write! But for all our obvious differences it’s offered as friendly fire. And perhaps a discussion we can continue.

    Best wishes, Chris

  13. Craig Nelson says:

    I’m not sure what more you would want in terms of policy making as the government provided plenty of opportunities for consultation pre and post the bill.

    Saying that CPs are good enough because they confer almost the same benefits but under a separate but equal arrangement clearly indiciates the need for equal arrangements.

    There are many things that Parliament does that are not in manifestoes. The prinicipal argument against such things is that they are wrong; not that they weren’t in the manifesto.

    I do think though that governments have a mandate at all times to create equality under the law.

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