Myths and realities about Equal Marriage

The complexity of the process should not dissuade the Government from sticking to its guns.

 

The Marriage (Same Sex Couples) Bill is back before Parliament today for its Report Stage. The latest version of the Bill is here, updated explanatory notes here, and the full list of proposed amendments here. Predictably, the amendments are the focus of much controversy.

This is all very complicated, both legally and politically, as you might expect for such a significant social change. I thought it would be useful to discuss five of the key issues in the current debate - what follows is not comprehensive and I would of course welcome comments.

1. Marriage equality was not in the Conservative Party Manifesto

Partial myth. This is a regular complaint of Tory Party activists (e.g. Conservative Grassroots complaint last week that "Same-sex marriage was not in our manifesto"). Technically, they are right - there was no mention of equal marriage in the 2010 Manifesto document. However, it was mentioned in the Conservative Party's Contract for Equalities, published at the same time, which promised

We will also consider the case for changing the law to allow civil partnerships to be called and classified as marriage. 

So while it is right to say that marriage equality was not an explicit promise the 2010 Manifesto, it was clearly on the Conservative agenda so should not come as a surprise to any Tory supporter who bothered to read up on what the party was going to do in power.

2. The European Court of Human Rights will force vicars to conduct gay marriage

Almost certainly a myth. This has been a concern of religious leaders from the start. It has always been incredibly speculative - see my post from last year. I agree with Karon Monagham QC's opinion which can be found annexed to Liberty's consultation response; as she says at page 40:

51.    a refusal by a church or other religious organisation, to conduct a same- sex marriage, so as to comply with the tenets of its religion or the strongly held and faith based convictions of its members, will invariably be regarded by any court as justified. 

Given the range of views across Europe as well as the extreme sensitivity of this issue to some religious believers, the European Court of Human Rights is unlikely to find that any priest, Rabbi, Imam or other religious leader breached human rights law by refusing to conduct a gay marriage. 

3. The "quadruple lock" protecting religious communities will not survive a European Court of Human Rights challenge

Unclear. It is important to separate the issue of religious observers being forced by the Strasbourg court to conduct gay marriages (see above) with the question of whether the current proposals for a "quadruple lock" protecting religious denominations from having to do so is sustainable. As said above, I think that the protection for religious organisations which refuse to 'opt in' is probably fine in terms of a human rights challenge. The problem, however, is the exception made for the Church of England

The European Court of Human Rights has made clear in recent case law (see my summary) that it will not force states to legalise gay marriage, but also that once gay marriage is legalised, it would treat gay marriages as "analogous" to opposite-sex marriages for the purposes of anti-discrimination rules. The effect of this would be that the Court may be willing to step if the rules which regulate same-sex marriage are themselves discriminatory. 

The Government was right to allow religious communities to 'opt in' to same-sex marriage in its draft bill, an idea which wasn't actually proposed at the consultation stage. If it had simply banned religious communities from solemnising gay marriages, as was the case initially with civil partnerships, this would have been very vulnerable to a European Court challenge. In reality, the so-called 'quadruple lock'    is part of a (sensible) enabling mechanism for religious communities.

But here's the problem. The Government slightly fudged the issue by preventing the Church of England from opting in. The justification was that as the established church, the CoE was in a unique position, as it is obliged to conduct 'marriages' however defined, and would need further protection. Another issue is the complex interaction between Cannon and domestic law. That may all be right, but the position remains that the Church of England as religious denomination will  be prevented, by law, to opt in to the system should it wish to, uniquely amongst religious denominations. This may amount to discrimination, but my instinct is that the European Court of Human Rights would accept the UK Government's position that this is really about the unique legal position of the CoE rather than any discrimination within the meaning of the ECHR.

4. Teachers will be forced to promote gay marriage

Probably a reality. Section 403 of the Education Act 1996 provides that the Secretary of State must issue guidance ensuring that when children are given sex education, "they learn the nature of marriage and its importance for family life and the bringing up of children". Since "marriage" is going to be redefined for the purposes of all legislation (see Para 1 of Schedule 3 to the Draft Bill), that includes s.403. 

So, the Secretary of State will be under a legal duty to ensure that children learn about the importance of marriage - including same-sex marriage - for family life and the bringing up of children. And when teaching sex education, teachers will have to emphasise it too. Teachers who are sacked for 'conscientiously objecting' may find the courts disagree with their view, as they did in the recent case of Eweida and Others v UK (see paras 105-106).

In light of this, one of the current amendments to the Bill seeks to withdraw the obligation to promote marriage. But the issue is a bit more complex than that. Under the Equality Act, teachers must teach in a way which is not discriminatory or harassing. Teachers who are anti-gay marriage, even if for religious reasons, will have to be sensitive in the way they teach about the topic so as not to offend students.

But, and this a big but, this is nothing new. Being sensitive to the feelings and beliefs of pupils, even if they are different to the views of the teachers, is central to being a good teacher, as it always has been. Teachers who want to use classrooms to as a bully pulpit against gay marriage should probably consider doing so in a different setting.

5. Preventing opposite-sex civil partnerships is discriminatory

Probably a reality, but only once the bill in its current form becomes law. Civil partnerships are currently only available for same-sex couples. Legalising gay marriage without legalising opposite sex civil partnerships would  therefore arguably leave opposite-sex couples in a worse position than same-sex couples. 

This, it seems to me, is probably at risk of a court challenge. The disparity is accident of legislative history. For that reason, it seems pretty obvious that civil partnerships will eventually be allowed for opposite sex couples. But the current Government will not want to include that as part of this bill as it would arguably water down the institution of marriage by giving opposite sex couples an alternative, albeit one which looks very similar to a marriage in terms of the legal rights generated for civil partners. 

So the question of whether civil partnerships are allowed for opposite sex couples now rather than later is really one of politics rather than principle. But it will need to happen at some point.

On myths and reality

Contrary to the naysayers, the Government has done a pretty good job so far in plotting a path through the key issues surrounding this bill, most significantly by introducing the "opt-in" for religious communities after almost everyone said that it must do so to prevent a court challenge. There are plenty of other difficulties surrounding the Marriage (Same Sex Couples) Bill, but that should surprise no one. As alluring as it is to pretend there is an easy way to bring in such a major legal and social change, as Peter Tatchell does in the Guardian, the reality is that legalising equal marriage is a complex business. That complexity should not discourage the Government from sticking to its guns.

Adam Wagner is a barrister at 1 Crown Office Row specialising in human rights and medical law. He is the founding editor of the UK Human Rights Blog and tweets as @adamwagner1

A protester holds up a placard at a demonstration for equal rights for gay couples in Trafalgar Square in March 2013. Photograph: Getty Images

Adam Wagner is a barrister at 1 Crown Office Row chambers and editor of UK Human Rights Blog

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Meet the hot, funny, carefree Cool Mums – the maternal version of the Cool Girl

As new film Bad Moms reveals, what the cool girl is to the diet-obsessed prom queen, the cool mum is to the PTA harpy.

I suppose we should all be thankful. Time was when “mum’s night off” came in the form of a KFC value bucket. Now, with the advent of films such as Bad Moms – “from the gratefully married writers of The Hangover” – it looks as though mums are finally getting permission to cut loose and party hard.

This revelation could not come a moment too soon. Fellow mums, you know all those stupid rules we’ve been following? The ones where we think “god, I must do this, or it will ruin my precious child’s life”? Turns out we can say “sod it” and get pissed instead. Jon Lucas and Scott Moore said so.

I saw the trailer for Bad Moms in the cinema with my sons, waiting for Ghostbusters to start. Much as I appreciate a female-led comedy, particularly one that suggests there is virtue in shirking one’s maternal responsibilities, I have to say there was something about it that instantly made me uneasy. It seems the media is still set on making the Mommy Wars happen, pitching what one male reviewer describes as “the condescending harpies that run the PTA” against the nice, sexy mummies who just want to have fun (while also happening to look like Mila Kunis). It’s a set up we’ve seen before and will no doubt see again, and while I’m happy some attention is being paid to the pressures modern mothers are under, I sense that another is being created: the pressure to be a cool mum.

When I say “cool mum” I’m thinking of a maternal version of the cool girl, so brilliantly described in Gillian Flynn’s Gone Girl:

“Being the Cool Girl means I am a hot, brilliant, funny woman who adores football, poker, dirty jokes, and burping, who plays video games, drinks cheap beer, loves threesomes and anal sex, and jams hot dogs and hamburgers into her mouth like she’s hosting the world’s biggest culinary gang bang while somehow maintaining a size 2, because Cool Girls are above all hot.”

The cool girl isn’t like all the others. She isn’t weighed down by the pressures of femininity. She isn’t bothered about the rules because she knows how stupid they are (or at least, how stupid men think they are). She does what she likes, or at least gives the impression of doing so. No one has to feel guilty around the cool girl. She puts all other women, those uptight little princesses, to shame.

What the cool girl is to the diet-obsessed prom queen, the cool mum is to the PTA harpy. The cool mum doesn’t bore everyone by banging on about organic food, sleeping habits or potty training. Neither hyper-controlling nor obsessively off-grid, she’s managed to combine reproducing with remaining a well-balanced person, with interests extending far beyond CBeebies and vaccination pros and cons. She laughs in the face of those anxious mummies ferrying their kids to and from a multitude of different clubs, in between making  cupcakes for the latest bake sale and sitting on the school board. The cool mum doesn’t give a damn about dirty clothes or additives. After all, isn’t the key to happy children a happy mum? Perfection is for narcissists.

It’s great spending time with the cool mum. She doesn’t make you feel guilty about all the unpaid drudgery about which other mothers complain. She’s not one to indulge in passive aggression, expecting gratitude for all those sacrifices that no one even asked her to make. She’s entertaining and funny. Instead of fretting about getting up in time to do the school run, she’ll stay up all night, drinking you under the table. Unlike the molly-coddled offspring of the helicopter mum or the stressed-out kids of the tiger mother, her children are perfectly content and well behaved, precisely because they’ve learned that the world doesn’t revolve around them. Mummy’s a person, too.

It’s amazing, isn’t it, just how well this works out. Just as the cool girl manages to meet all the standards for patriarchal fuckability without ever getting neurotic about diets, the cool mum raises healthy, happy children without ever appearing to be doing any actual motherwork. Because motherwork, like dieting, is dull. The only reason any woman would bother with either of them is out of some misplaced sense of having to compete with other women. But what women don’t realise – despite the best efforts of men such as the Bad Moms writers to educate us on this score – is that the kind of woman who openly obsesses over her children or her looks isn’t worth emulating. On the contrary, she’s a selfish bitch.

For what could be more selfish than revealing to the world that the performance of femininity doesn’t come for free? That our female bodies are not naturally hairless, odourless, fat-free playgrounds? That the love and devotion we give our children – the very care work that keeps them alive – is not something that just happens regardless of whether or not we’ve had to reimagine our entire selves to meet their needs? No one wants to know about the efforts women make to perform the roles which men have decided come naturally to us. It’s not that we’re not still expected to be perfect partners and mothers. It’s not as though someone else is on hand to pick up the slack if we go on strike. It’s just that we’re also required to pretend that our ideals of physical and maternal perfection are not imposed on us by our position in a social hierarchy. On the contrary, they’re meant to be things we’ve dreamed up amongst ourselves, wilfully, if only because each of us is a hyper-competitive, self-centred mean girl at heart.

Don’t get me wrong. It would be great if the biggest pressures mothers faced really did come from other mothers. Alas, this really isn’t true. Let’s look, for instance, at the situation in the US, where Bad Moms is set. I have to say, if I were living in a place where a woman could be locked up for drinking alcohol while pregnant, where she could be sentenced to decades behind bars for failing to prevent an abusive partner from harming her child, where she could be penalised in a custody case on account of being a working mother – if I were living there, I’d be more than a little paranoid about fucking up, too. It’s all very well to say “give yourself a break, it’s not as though the motherhood police are out to get you”. Actually, you might find that they are, especially if, unlike Kunis’s character in Bad Moms, you happen to be poor and/or a woman of colour.

Even when the stakes are not so high, there is another reason why mothers are stressed that has nothing to do with pressures of our own making. We are not in need of mindfulness, bubble baths nor even booze (although the latter would be gratefully received). We are stressed because we are raising children in a culture which strictly compartmentalises work, home and leisure. When one “infects” the other – when we miss work due to a child’s illness, or have to absent ourselves to express breastmilk at social gatherings, or end up bringing a toddler along to work events – this is seen as a failure on our part. We have taken on too much. Work is work and life is life, and the two should never meet.

No one ever says “the separation between these different spheres – indeed, the whole notion of work/life balance – is an arbitrary construct. It shouldn’t be down to mothers to maintain these boundaries on behalf of everyone else.” Throughout human history different cultures have combined work and childcare. Yet ours has decreed that when women do so they are foolishly trying to “have it all”, ignoring the fact that no one is offering mothers any other way of raising children while maintaining some degree of financial autonomy. These different spheres ought to be bleeding into one another.  If we are genuinely interested in destroying hierarchies by making boundaries more fluid, these are the kind of boundaries we should be looking at. The problem lies not with identities – good mother, bad mother, yummy mummy, MILF – but with the way in which we understand and carry out our day-to-day tasks.

But work is boring. Far easier to think that nice mothers are held back, not by actual exploitation, but by meanie alpha mummies making up arbitrary, pointless rules. And yes, I’d love to be a bad mummy, one who stands up and says no to all that. Wouldn’t we all? I’d be all for smashing the matriarchy, if that were the actual problem here, but it’s not.

It’s not that mummies aren’t allowing each other to get down and party. God knows, we need it. It’s just that it’s a lot less fun when you know the world will still be counting on you to clear up afterwards.  

Glosswitch is a feminist mother of three who works in publishing.