Civil partnership for all?

Legislation to allow same-sex marriage in Britain passed its third reading in the House of Commons without difficulty, 366 to 161, although more Conservative MPs voted against than in favor. It now goes to the House of Lords. The other day I talked about its implications for David Cameron’s leadership; let’s now step back and say something about the merits of the bill.

One of the things that made the Commons debate much messier than it would otherwise have been is the fact that Britain already has something a lot like same-sex marriage, in the form of civil partnerships. It’s a not entirely welcome sign of my longevity as a pundit that I wrote about these when they were introduced in 2005:

[C]ontroversy has largely been avoided by a simple, and very British, compromise – gays can get married, but it isn’t called marriage; it’s called “civil partnership.” …

Unlike the “civil unions” proposed or implemented in some American states, they really are marriages in all but name; partners will be entitled to the same benefits, and dissolution of partnerships can only happen via a “divorce” process. A give-away is that the new status is only available to gays, not heterosexual couples – because the equivalent for them is just traditional marriage.

The distinction between civil partnerships and civil unions is an important one, although the terminology is not always consistent. Britain’s system should be contrasted with that in, for example, France, which in 1999 introduced the pacte civil de solidarité (civil solidarity pact), or PACS. PACS was a substitute for same-sex marriage, but it was available to opposite-sex couples as well and became increasingly popular with them as an alternative to marriage: by 2010 some 95% of PACS being entered into were heterosexual, and the total number was rapidly gaining on the number of marriages.

The rights and responsibilities under PACS are significantly less than those of marriage in such things as inheritance, adoption and taxation (although they have been progressively upgraded). Crucially, there is no requirement for a “divorce” process; a PACS can be ended on the spot by mutual agreement or can be repudiated by either party.

Australia has a similar set of rights given to de facto couples, which can be either heterosexual or homosexual. Most states provide for them to be formally registered (see for example the Victorian Relationships Act 2008), but even without registration they provide an alternative to marriage that is seen to have a lesser status but greater flexibility.

So the British position was quite different: for all practical purposes civil partnership was equivalent to marriage, except it lacked the title and therefore the perception of full equality. It’s an interesting comment on the way political controversy works that debate on the current bill seems no less heated – and indeed may be more heated – for the fact that its effects are fundamentally symbolic rather than substantive.

One of the tactics seized on by opponents of same-sex marriage was to argue that if marriage was being opened up to gay couples, civil partnership should at the same time be opened up to straights. The government successfully fended off an amendment to this effect (with Labour’s help), but has promised a speedy review of the position.

Clearly there is no logic to retaining two options – marriage and civil partnership – for same-sex couples while opposite-sex couples have only one. For consistency, there are three possibilities:

(a) call all recognised civil relationships “marriage”, and phase out civil partnership;

(b) call all recognised civil relationships “civil partnership”, and phase out marriage; or

(c) offer all couples the option to call their relationship either “marriage” or “civil partnership”, as they choose.

Personally I would have to say I favor (b), but in a country like Britain (and Australia, for that matter) it is politically impossible. The most laissez-faire option might seem to be (c), but the government is afraid of the consequences of a large number of heterosexual couples demanding recognition. (In effect, the change would make heterosexual marriage more attractive by offering couples the option of not calling it “marriage”.)

Cameron would obviously like to move towards (a), but it faces the obstacle that some of those who have entered into civil partnerships are probably quite happy with that status and don’t want to be in something called “marriage”. It might be possible, however, to stop offering new civil partnerships and instead introduce a type of civil union that would be available to both same-sex and opposite-sex couples.

There is also the very deep problem of the role of the Anglican Church, which (unlike any church in Australia or most of the democratic world) remains an integral part of the state. One of Cameron’s concessions to the anti-gay brigade was a provision that the Anglican Church would be banned from offering same-sex wedding ceremonies – a very odd restriction if you think of the church as an arm of government, but probably no more confused than many other things about this archaic relationship.

In a rational world, the churches could call whatever they wanted “marriage” and the state would simply ignore them, confining itself to recognising (and regulating where necessary) whatever civil contractual relationships people chose to enter into. We’re still a long way from that, but at least Britain has taken another serious step towards equality.