The consummation of gay marriage
Historically, a marriage has not been considered a binding contract until and unless it has been consummated. The Matrimonial Causes Act 1973 defines the grounds for nullity and annulment of a marriage. The distinction is crucial, especially as far as the Established Church is concerned, for by Act of Parliament it is decreed that ‘so many as are coupled together otherwise than God's Word doth allow are not joined together by God; neither is their Matrimony lawful’. And God’s Word doth say not an awful lot about same-sex unions. Indeed, it celebrates only complementarity throughout its pages: the Song of Songs of Solomon is an explicit celebration of maleness and femaleness, of courtship and consummation, of husband and wife becoming one flesh. And it is devoid of all religion and any mention of God; only allegorically becoming analogous to God’s relationship with Israel or that of Christ with the Church. It is a cosmic song of secular eroticism, in which the sexual man and woman are united in ecstasy, and this Song is the superlative song of marriage union.
Ah, but the Government is not proposing to interfere with ‘religious marriage’, you say. And all this Bible mumbo-jumbo is archaic and otiose: we need to move on. But even as we try, we hit not only a can of worms but a knot of vipers in the consideration of same-sex ‘civil marriage’.
If a marriage be null and void, no valid marriage ever existed; if a marriage be voidable and annulled, it is valid and recognised at law until such time as it is ended by decree. The relevant clauses of the 1973 Matrimonial Causes Act are:
11 Grounds on which the marriage is voidThroughout ecclesial and secular history and hitherto in law, both spiritual and temporal, consummation has required sexual intercourse which is ‘ordinary and complete’; that is, the penetration of a vagina by a penis.
(c) that the parties are not respectively male and female;
12 Grounds on which the marriage is voidable
(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it;
Recognising a slight problem here in regard to same-sex marriage, the Government has explained in its ‘consultation’ document:
Dissolution, divorce and annulment:Don’t you just love ‘Case law may need to develop’? May need?
2.16 Specifically, non-consummation and adultery are currently concepts that are defined in case law and apply only to marriage law, not civil partnership law. However, with the removal of the ban on same-sex couples having a civil marriage, these concepts will apply equally to same-sex and opposite-sex couples and case law may need to develop, over time, a definition as to what constitutes same-sex consummation and same-sex adultery.
Which appendages into which orifices will henceforth constitute consummation? Presumably, a ‘wet willy’ will be exempt. But what of ‘French kissing’ or tongues in each others’ mouths? For the avoidance of confusion and the mitigation of ambiguity, His Grace exhorts his communicants to be clear, forthright and explicit in their responses to this crucial question. This will aid our judges as they ‘develop’ case law.
Further, as lawyers and judges sitting in their courts (both civil and religious) get their heads around what might constitute homosexual and lesbian consummation, for the sake of equality, this new consummation case law will also have to apply to heterosexual union. For, surely, if we are concerned with matters of equality and justice, if a finger or tongue in the vagina, or a penis in the anus or the mouth, henceforth constitutes consummation for homosexuals and lesbians, then a fortiori must this constitute consummation for heterosexuals, or the standards by which consummation might be judged will not be equal, and the Government will have created a manifest inequality between hetero and homo marriage.
And what, then, of celibate gay Anglican clergy (not to mention the un-celibate gay Roman Catholic clergy)? The Church of England permits vicars to enter into a civil partnership provided that they remain celibate. But what constitutes consummation in such relationships? Is penetrative sex about to become mandatory in order for civil partnerships to be commuted to marriage? Indeed, what constitutes consummation in any same-sex relationship which does not involve penetrative sex, insofar as penetrative sex is ‘ordinary’? Or is the definition of ‘ordinary’ about to be re-written to embrace the extraordinary? If mutual masturbation may become ‘ordinary’ consummation, does that not rather discriminate against the individual in their marriage status? Is a man about to be able to consummate a marriage with himself?
All of this will soon be a matter for the courts to decide, because the Government clearly doesn’t have a clue. We could throw these questions into the ‘consultation’, but they will meet with no ministerial response: such contentions will instead be firmly and securely kicked into the long grass. Henceforth, in the consideration of same-sex adultery, it will be for the judges of England and Wales to define what is meant by same-sex consummation.
His Grace can hardly wait.