Peter Smith

What happens when we redefine marriage?

Peter Smith
By Peter Smith

October 10, 2012 (Mercatornet.com) - Back in January I set out David Cameron’s proposals for creating same-sex marriage, which he announced at the British Conservative Party’s annual Conference in October 2011, alongside some arguments against those plans.

A year later, the controversy has moved on. There are now two parallel movements for same-sex marriage in the UK, a result of the devolution of powers to the Scottish Government. A consultation in Scotland ended in December 2011 and its results were snuck out shortly before Olympic fever dominated the Isles.

It is notable how divisive same-sex marriage has been north of Hadrian’s Wall: an ‘unprecedented’ 77,508 responses were received in the ‘largest consultation exercise of its type ever held in Scotland’. Over 33,000 responses were submitted via forms amended by organisations with an interest in the two core proposals of same-sex civil marriage and religious civil partnerships. Opponents of same-sex marriage pipped supporters 52:48, but more than two thirds opposed religious civil partnerships. Nonetheless, the Scottish Government intends on continuing to legalise both relationships, and the Catholic Church – numerically and financially the largest single supporter of traditional marriage – has since ceased dialogue with Edinburgh on the matter.

Down south, we are a step behind. The Home Office has also consulted on its plans to create such relationships in England and Wales, but they are effectively limited to same-sex marriages and not religious civil partnerships. After months of campaigning, two umbrella organisations broadly covered the diverse faiths, standpoints and interest groups in the opposing camps. In favour of same-sex marriage stands the Coalition for Equal Marriage, and its slick media campaign, Out4Marriage.org, which publishes clips of well-known proponents of gay marriage such as Boris Johnson and Hugh Grant ‘coming out’ in support of the move. Against liberalisation is the Coalition for Marriage, based out of the Christian Institute’s offices in Newcastle, which has mobilised tens of thousands of Christians to sign petitions and dominate the postbags of Members of Parliament.

The Home Office consultation ended in June, and the results are unlikely to be known this calendar year. It is safe to say that there have been a considerable number of responses from both sides (although, as in Scotland, many will be standard pro-forma that campaign groups have handed out and emailed to supporters). Polls favouring both positions have been published. If, following the publication of the consultation document, the Government in Westminster puts legislation before Parliament in the new year, it is likely to be passed by the second anniversary of Cameron’s speech in 2013. But will that legislation be tabled?

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Opening Pandora’s box

The best hope for opponents of same-sex marriage in England is for the Government to conclude it is too difficult to pass coherent and stable legislation that creates such marriages in the narrow circumstances so far envisaged. Social conservatives should not be too hopeful that such sense will prevail: Nick Clegg, the Deputy Prime Minister, gave a glimpse of the liberal class’s mindset when his staff trailed a speech in which he described supporters of traditional marriage as “bigots” – a slur he was rapidly forced to retract.

As an example of the radical legal consequences of redefining marriage, the Coalition for Marriage has recently released a précis of a legal opinion by Aidan O’Neil QC, an expert in equality and discrimination law who practises from the same barristers’ chambers as Tony Blair’s wife, Cherie Booth. O’Neil was instructed to consider the implications for religious conscience and religious liberty arising from redefining marriage in England and Wales, and he considers the interplay between the Equality Act 2010 (including the Public Sector Equality Duty (PSEQ)), the European Convention on Human Rights, and case law on point. The PSEQ compels public authorities – including state schools, councils and the National Health Service – to “have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited…” when exercising their public functions. This includes the obligation to “tackle prejudice” and “promote understanding” between homosexual and heterosexual people.

It is a far-reaching obligation on an enormous range of bodies and organisations, and it reduces substantially the lawful opportunities for supporters of traditional marriage to explain – let alone mention – their views. The Coalition for Marriage asked O’Neil to consider some hypothetical situations where religiously-minded people could find themselves in difficulties – and potentially fired from their jobs. Here are elaborations of some of his examples (the précis contains more), which focus on practical positions that readers of MercatorNet might find themselves in, should the prohibition on same-sex marriage be removed. (For brevity, the precise legal reasoning is omitted. What follows is a characterisation of the legal positions, which are necessarily latent or untested propositions.)

The chaplain

A hospital chaplain is also a local Church of England vicar. Suppose he preaches, at a private wedding service in his church, that marriage is between only one man and one woman. If his hospital employers were to hear of this action, they could take into account his conduct outside of the workplace when determining whether the chaplain was acting in accordance with the requirements of his hospital work and the ethos of the hospital. This is true for any chaplain employed with the public sector (e.g. within a university or the Armed Forces) who, in all likelihood, would have a duty to accept only that marriage could be between two people of the same sex, and that any contrary restrictive view would lead to their lawful dismissal as this view would be ‘un-ethical’, ie, against the prevailing ethos.

The teacher

A teacher is told by her head that she must use in class a book recommended by the local council and a gay advocacy charity. This book is about a man who falls in love with a prince and marries him. If the teacher asked to opt out of using the book on the grounds of conscientious objection, she would be refusing to obey the otherwise lawful instructions of her employers, thus constituting grounds for her dismissal. Moreover, it would make no difference if the school was a faith school or any type of school with a religious ethos or none.

The child

A child says in a school assembly that he thinks marriage is only between a man and a woman, on religious grounds. The assembly theme is on marriage and same-sex marriage is discussed. The child is subsequently bullied but the school takes no action. Because the school is under a duty to teach about marriage, and because marriage would mean same-sex marriage, a school which taught marriage equality (same-sex and opposite-sex marriages are the same) would not be discriminating against the child’s religious views. Furthermore, the school is potentially under a duty to ensure that the curriculum it teaches is delivered in a way that discourages and even eliminates the attitudes held by its pupils that involve sexual orientation. This potentially implies that it may brook no dissent from the redefinition.

The parents

Concerned parents learn that their school is planning a gay and lesbian history month, including lessons on ‘the campaign for marriage equality’. The parents insist that they have the right to withdraw their child from these history lessons. In fact, even if the school were a faith school teaching a subject in a manner contrary to the orthodox teachings of that faith, the parents would be completely unable to withdraw their child from these lessons, and the European Convention would not facilitate it.

The foster couple

Couples who apply to become foster carers and, during the interview process, let it be known that they could not support same-sex marriage, could be barred by a local authority or council from continuing with their application. The local authority is under an obligation to investigate the views of potential foster parents, and to consider the extent to which those views might influence and affect the behaviour and treatment of a child in their care. As a public authority, the council is under an obligation to safeguard and promote the welfare of looked-after children and this could be construed to include the prevention of exposure to an environment that is potentially exclusive of same-sex marriage.

The crucial lesson of civil partnerships

It is worth noting again the analogy between same-sex marriage and civil partnerships in England and Wales. When the Civil Partnerships Act was winding its way through Parliament in 2003 and 2004, Tony Blair promised that no religions would be compelled to carry out partnerships. In fact, religious readings, music or symbols were prohibited from the partnership ceremony. However, with only cursory scrutiny by Parliament, this ban was lifted in December 2011. This substantial change in civil partnership policy demonstrates that religious leaders should be very wary of accepting any ‘red line’ promises from ministers (even the Prime Minister) as a way of ameliorating opposition to the current proposals.

In the current proposals, there will be a blanket ban on religious ceremonies in England and Wales. This is effectively a religious exemption and means that churches and ministers cannot host or celebrate same-sex marriages. However, the O’Neill opinion suggests there would be a strong case that a blanket ban would be overturned by European human rights law. The material provision is Article 12 of the European Convention, which establishes a right for two individuals to marry: “men and women of marriageable age have the right to marry and found a family…”

O’Neil raises the spectre of a fundamental reinterpretation of this Article, from the right of one man and one woman to marry, to same-sex couples, if redefinition occurs in English law. The consequence of this would be to open up other legal avenues, like human rights law, to support same-sex marriage. This could spell the end of the religious exemption.

Even if churches were allowed to conduct same-sex marriages, it would be mistaken to think that a happy settlement could be reached whereby those vicars who accepted it would be free to do so, whilst supporters of traditional marriage would be free not to. Because of the established identity of the Church of England, granting the Church a unique and privileged place amongst religions in England, once any vicar allows same-sex marriages it becomes untenable in law for the whole Church not to participate. Thus O’Neil concludes:

“Churches might indeed better protect themselves against the possibility of any such litigation by deciding not to provide marriage services at all, since there could be no complaint then of discrimination in their provision of services as between same sex and opposite sex couples.

“And, in principle, the Church of England might be better protected under any such claim if it were disestablished in the sense that its clergy were no longer placed under formal legal obligations by the general law to solemnise the marriages of all and any person otherwise eligible to marry under the general law…”

It isn’t too late, Mr Cameron

Already, MPs are queuing up to remove the hypothetical ban on same-sex marriages in religious places, and Ed Milliband, the leader of the opposition Labour Party, appears to have outflanked Cameron in the latter’s rush to social liberalism.

If same-sex marriage legislation is pushed into the House of Commons, David Cameron will likely see a back-bench rebellion from his own MPs on the right of the Party, who are vociferously opposed to the measures. He knows that many Tory MPs hold seats where the UK Independence Party and the Liberal Democrats cannot oust the incumbent Conservatives in a fair fight, but they can succeed if the Tory vote is split (over Europe, for instance) or because Conservative voters simply absent themselves on election day because they are angry or disappointed at the Party leadership. Gay marriage is such an issue.

In any event, Cameron will be left in the embarrassing position of relying on Liberal Democrat and Labour support for a majority to be secured (particularly as he is likely to give a free vote), and he will see the Parliamentary Conservative Party split cleanly on this social issue, conservative/liberal, when unity is needed to push through controversial healthcare reforms.

Given the political difficulties of creating same-sex marriage and the legal consequences of doing so, it would suit him well to put the plans back on the shelf and move on to getting Britain out of its slump and recession.

Peter Smith is a lawyer living and working in London. This article reprinted under a Creative Commons License from Mercatornet.com

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Christian clerk fights on as Sixth Circuit orders her to issue gay ‘marriage’ licenses

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By Dustin Siggins

ROWAN COUNTY, KY, August 27, 2015 (LifeSiteNews) -- A federal appeals court has ordered Christian clerk Kim Davis to provide same-sex “marriage” licenses, but she’s refusing to give in.

Davis, a Democrat, says that her Christian beliefs will not allow her to issue licenses for same-sex “marriages.” Despite pressure from Democrat Gov. Steve Beshear, a lawsuit from the ACLU, and two federal court rulings, Davis has refused to issue any licenses while the matter is still working its way through the courts.

However, the Sixth District Court of Appeals said Davis must issue the licenses.

While critics say Davis must follow the law as a public employee, she says the First Amendment protects her decision even as a government worker. In addition to being sued by the ACLU, she has pro-actively taken her case to court.

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Beshear told all government employees that "you can continue to have your own personal beliefs, but, you’re also taking an oath to fulfill the duties prescribed by law, and if you are at that point to where your personal convictions tell you that you simply cannot fulfill your duties that you were elected to do, then obviously an honorable course to take is to resign and let someone else step in who feels that they can fulfill those duties.”

The initial court decision against Davis was stayed 10 days ago. Liberty Counsel's Mat Staver, whose organization represents Davis, told CNN that they might appeal to the U.S. Supreme Court and are hoping the high court would issue a stay of the Sixth Circuit ruling in the interim.

A poll of Kentucky voters that was released last month found that 50 percent of the state backs natural marriage, while only 37 percent supported its redefinition. 

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Christians at Duke U refuse to read lesbian porn novel assignment

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By Steve Weatherbe

DURHAM, NC, August 27, 2015 (LifeSiteNews) -- Christian freshmen at Duke University are refusing to read an assigned graphic novel depicting masturbation and homosexual intercourse. The university says the assignment was optional and won’t discipline the holdouts.

Brian Grasso emerged as the spokesperson for the dissenters after he posted his decision on the Class of 2019’s closed Facebook page. Opponents have done their best to mock and deride the holdouts as ignoramuses who don’t belong at Duke, but Grasso has addressed all their jibes, first to Duke’s student paper and then in an op-ed in the Washington Post, intelligently and engagingly.

The book at issue is Fun Home, a fictional depiction by lesbian artist Alison Bechdel of growing up with a homosexual, suicidal dad and discovering sex with other girls. “After researching the book’s content and reading a portion of it, I chose to opt out of the assignment,” Grasso told Post readers, explaining he was not opposed to learning about homosexuality any more than he would be with the ideas of “Freud, Marx or Darwin,” though he might find them immoral too.

“But in the Bible,” he went on, “Jesus forbids his followers from exposing themselves to anything pornographic. ‘But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart,’ he says in Matthew 5:28-29. ‘If your right eye causes you to stumble, gouge it out and throw it away.’” He then cited St. Paul to support his argument.

Grasso knew Christians would be in the minority at Duke, he admitted, but what surprised him was that Duke would blithely assign something so obviously offensive to this minority. “Duke did not seem to have people like me in mind. It was like Duke didn’t know we existed, which surprises me.”

But Patrick Reilly, the president of the Cardinal Newman Society, an organization devoted to promoting American Catholic orthodoxy at Catholic universities, isn’t surprised. “American society has been moving away from Christian values or even neutrality, especially at secular institutions but even at Catholic and other Christian schools,” Reilly told LifeSiteNews. He urged Catholic and other Christian parents and high school students to choose their universities carefully.

Other freshmen have supported Grasso: Bianca d’Souza said the novel’s ideas were important but the salacious content unnecessary and offensive. Jeffrey Wubbenhorst wrote, “”The nature of ‘Fun Home’ means that the content that I might have consented to read in print now violates my conscience due to its pornographic content.”

But others from the class of 2019 responded, “Reading the book will allow you to open your mind to a new perspective and to examine a way of life and thinking with which you are unfamiliar.”

In the same vein students wrote the Duke student newspaper Chronicle, mocking the dissenters with references to a Dr. Seuss children’s book. “Mermaid Warrior,” for example, wrote, “I’m sure there are people who think Cat in the Hat sends bad messages. That’s a big problem I have with complaints like these, ‘I shouldn’t be expected to read stuff I disagree with!’ It’s like, guess what, there’s no way to find something that everyone will agree with.”

But Grasso makes clear his issue isn’t with disagreeable ideas at all. “I think there is an important distinction between images and written words. If the book explored the same themes without sexual images or erotic language, I would have read it. But viewing pictures of sexual acts, regardless of the genders of the people involved, conflict with the inherent sacredness of sex. My beliefs extend to pop culture and even Renaissance art depicting sex.”

Inevitably, Duke itself weighed in. The book was selected for summer reading by the freshman class, explained Duke’s vice president or public affairs, Michael Schoenfeld, “because it is a unique and moving book that transcends genres and explores issues that students are likely to confront.”

After touting its artistic value and noting that a Broadway adaptation won the Best Musical award for 2015, he noted that the book was not a requirement and there would be no examination or grading. He expressed the hope that Duke’s 1,750 freshmen would arrive with open minds willing to “explore new ideas.”

But for all that, Schoenfeld did not explore the issues raised by Grasso: morality, pornography and the sexualization of relations.

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Aborted babies’ hands too disturbing? Solution: chop them off before shipping the bodies

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By John Jalsevac
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August 26, 2015 (LifeSiteNews) - As if we needed more evidence that many of those in the abortion industry know perfectly well what they are doing, along comes the latest undercover video from the Center for Medical Progress (CMP).

The video includes disturbing undercover footage of a conversation with Cate Dyer, the CEO of StemExpress, a biomedical firm that acquires the bodies of aborted babies from Planned Parenthood clinics.

During that conversation Dyer infamously jokes with an undercover investigator about the need to warn lab techs ahead of time when a fully “intact” aborted baby's cadaver is being shipped to them.

But there it is: that hand, in all of its beauty, and its horror. Beautiful, as every hand is beautiful. Horrific, in that it is attached to a dismembered arm, yanked out of its socket, and swimming in a pool of the baby’s intestines and other body parts, to be bartered over and sold. 

“If you have intact cases, which we’ve done a lot, we sometimes ship those back to our lab in its entirety,” she says. "Tell the lab it's coming, so they don't open the box and" scream. "Their lab techs freak out and have meltdowns."

"Academic labs cannot fly like that, they are just not capable," Dyer adds condescendingly. "It's almost like they don't want to know where it comes from. I can see that."

But don’t worry, Dyer makes it clear she knows exactly where fetal tissue comes from, and isn't bothered in the least.  However, she agrees with a joke made by the undercover investigator, that if you’re going to be shipping the intact body of an aborted baby, it would be best to always make sure that the “eyes are closed.”

But surely the saddest part of the conversation comes when Dyer reveals how some of those squeamish lab techs manage to get around their natural repugnance at receiving little, perfectly-formed babies’ bodies in the mail, which they will then slice and dice – all in the name of “medical progress,” of course.

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She says that she often receives instructions from scientists who experiment on aborted babies that, "We need limbs, but no hands and feet need to be attached."

A curious request, no? But then again, there is something especially pesky about those tiny hands and feet, isn’t there?

Human hands are, after all, a true marvel of nature – so far surpassing in dexterity the appendages of any other mammal, the unparalleled tools that have enabled human beings to build empires, create art of breathtaking beauty, and to express themselves in myriad different ways. So marvelous, in fact, that Isaac Newton is reported to have said, “In the absence of any other proof, the thumb alone would convince me of God’s existence.”

Not only are hands and feet useful, but they knit human beings together in intimacy: lovers will hold or squeeze their beloved's hands, and friends will soothe their friends in time of sorrow by taking their hands. And then there is the case of new parents, who will go into raptures over the hands and feet of their newborn babies, and speak, using the foolish language of love, of wanting to “eat” them. Mothers will shower their newborn babies’ feet with kisses, and tickle them, and will study and fall in love with every dimple, every crease.

Perhaps that is why so many people found the fifth (or was it the sixth? I’m losing track of the horrors) video so disturbing: that footage inside the lab, when the man behind the camera uses his tweezers to delicately lift up a dismembered arm, with the hand still attached.

That arm, it is true, would not have been half so disturbing, were it not for the hand. But there it is: that hand, in all of its beauty, and its horror. Beautiful, as every hand is beautiful. Horrific, in that it is attached to a dismembered arm, yanked out of its socket, and swimming in a pool of the baby’s intestines and other body parts, to be bartered over and sold. 

Before this, we have heard the lab techs on camera identifying the baby as a twin, at about 20-weeks gestation. In other words, a baby on the very verge of viability.

But no mother will gaze in raptures at those hands and those feet. Instead, Planned Parenthood will discuss how much they can “get” for each "specimen." And perhaps Cate Dyer will instruct her staff to cut off the hands or the feet before shipping the limbs to those too-tender-hearted lab techs who might “freak out” and “have a meltdown” at being forced to see too much of the truth.

But what does it say about us, and our politicians, that the videos with those pesky hands and feet are out there circulating, watched by millions, and yet we are not “freaking out” or having any meltdowns?

Instead, our politicians are dismissing the video as being "highly edited," as if David Daleiden of CMP is a CGI wizard who can conjure up dismembered limbs at will, and even though even Planned Parenthood has never denied the existence of those dismembered arms and legs, but has only implausibly denied that they are illegally "profiting" from the sale of the appendages - as if illegally profiting from the sale is somehow worse than the fact that they have dismembered the babies in the first place. 

If the dismembered hands and feet aren't enough to awaken our consciences, and to force our politicians to stop the massacre, what will be? I fear the answer to that question. 

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