Hugh McLachlan: A modest proposal or a vow to fight?

SHOULD people in Scotland be legally permitted to marry someone of their own sex? Should members of the clergy – on religious premises and under the auspices of religion – be among those who are authorised to conduct such ceremonies? To most of us, the issues raised by these questions are so slight and innocuous that the passionate reactions they have created are baffling.

On the one hand, those who reject the proposals are sometimes accused of homophobia. On the other hand, Cardinal Keith O’Brien, the leader of Scotland’s Roman Catholics, calls the proposals “madness … a grotesque subversion of a universally accepted human right”. Of the politicians who have made the proposals, he says: “Their intolerance will shame Scotland in the eyes of the world.” (Mail on Sunday, 11 September)

The term homophobia is typically used inappropriately in this debate. Phobias are medical conditions. If people are suffering from a phobia about, for instance, homosexuality, we should be sympathetic towards them and be prepared to offer them any available help and treatment. We should not blame them or castigate them any more than we should criticise someone who has, for instance, influenza or a morbid fear of and anxiety about spiders.

If people do not suffer from the relevant medical condition, we should not apply the medical term to their views. We should not call people “homophobes” merely because we disagree with what they think or because we find their views repugnant. We should not use an apparent medicalisation of their position as an excuse for failing to consider their arguments.

Strictly speaking, the issue is not about gay marriage or gay rights. The question is whether people should be allowed to marry people of the same sex as themselves. There is no category of “heterosexual marriage”. Males can marry females and vice versa. It is irrelevant whether or not the males and females concerned are heterosexual.

We should have legal rights as individual citizens rather than as members of particular cultural, social, psychological, ethnic or biological categories.

Should males be allowed to marry other males? Should females be allowed to marry other females? I think that they should, on the grounds that there is no good reason for legally prohibiting it and that the onus is on the banners to justify the ban.

Marriage is a status that carries no more legal rights, duties and privileges than does a civil partnership. Civil partnerships are marriages in all but legal terminology. There are no significant legal differences between civil partnership and marriages, however differently people might respond emotionally to the difference in terminology. This might make the proposed change pointless. However, by the same token, it might make resistance to the proposal pointless. On balance, that is the view that I take.

At present, members of the clergy are granted by the state the legal authority to conduct marriage ceremonies. The second of the current proposals is that they should also be offered the authority to unite people of the same sex in what are presently called “civil partnerships”, but which might in the future be called “marriages”.

At face value, it might seem curious that some members of the clergy should object to a proposed increase in their authority since they might choose whether or not they wish to exercise it. What have they got to lose?

However, the position is more complex than it might appear to be. Some people object to legal unions that might involve sex between people of the same sex no matter what such unions are called. Cardinal O’Brien and others have expressed their fear that although the advocates of the permitting of same-sex marriages in churches and other religious premises stress that this would be purely optional for religious organisations, in practice, they might face legal prosecution on the grounds of unlawful discrimination if they fail to conduct such ceremonies.

Unlike others who support the legalisation of same sex marriages, I don’t think that Cardinal O’Brien’s fears are unreasonable.

Assurances that, in the future, religious organisations would not be compelled to conducted same-sex ceremonies are baseless. The intentions of legislators are of little consequence with regard to the enforcement of laws. What counts is how laws are actually interpreted by the courts.

That is not readily predictable. It is not inconceivable that some future judgment of, say the European Court of Human Rights, might be that it is illegal to offer the possibility of a religious marriage ceremony to a male and female couple while denying it to a single-sex couple. Stranger decisions have been made.

Cardinal O’Brien’s reading of Article 16 of the Universal Declaration of Human Rights is a very curious and idiosyncratic one. It is notable that there has not been a rush of human rights lawyers and enthusiasts in support of his interpretations.

According to Cardinal O’Brien: “The Universal Declaration on Human Rights is crystal-clear when it says that marriage is a right which applies to men and women, it goes on to state, that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State’.”

He says: ‘If the Scottish Government attempt to demolish a universally recognised human right, they will have forfeited the trust which the nation, including many in the Catholic community, have placed in them and their intolerance will shame Scotland in the eyes of the world.’

The relevant section of the declaration says: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.”

What this says is that the rights pertaining to marriage of men and women should be the same. It does not say that men should marry only women or that women should marry only men.

The declaration says: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

This does not say that men should not be allowed to marry men. It does not say that only married couples can found families. It does not say that marriages should be illegal unless they can or could be the basis of a family.

Cardinal O’Brien is concerned that the state is proposing to change or, as he says, “subvert” the meaning of marriage in ways he disapproves of.

Marriage has in different ways different sorts of “meanings”. The state cannot define for religions the religious meaning and significance of marriage. Similarly, religious organisations cannot be allowed to impose upon the state and thereby upon the citizenry a particular legal conception of marriage. We should render unto Caesar what is Caesar’s and unto God that which is God’s.

What the state has granted, it can take away. If religious organisations will not conduct all potentially legal marriage ceremonies, there might be the basis of a case for saying that they should not be allowed to conduct any of them.

Churches could continue to conduct marriage ceremonies. Such ceremonies would retain their religious meaning but would have no legal significance. If couples wanted to be united in the eyes of the law, they would need to have two marriage ceremonies if they also wanted to have a church wedding. It would be, unambiguously, solely the business of the churches concerned who they were prepared to marry.

I doubt whether any political party in Scotland would want to pursue such a policy at present. However, in the longer term, such a clear distinction between the proper roles of secular and religious authority might be in the best interests of all of us – both the religious and the non-religious.

• Hugh McLachlan is Professor of Applied Philosophy in the Glasgow School for Business and Society at Glasgow Caledonian University.