Solicitor advocate says Law Society is ‘intellectually dishonest’ on gay marriage
You may recall that the Law Society recently banned a conference on family issues to be addressed by a senior High Court judge because debating gay marriage supposedly breached its ‘diversity policy’. The Society is now being sued by Christian Concern. His Grace can't help feeling that this guest post will assist their cause.
It is written by lawyer Gerard Stubbert, a Jesuit-educated hereditary Leftie (evidence, if any were needed, of His Grace's commitment to harmonious ecumenical, cross-party relations). Mr Stubbert originally qualified at the Bar (Gray's Inn) and is a solicitor-advocate. He has acted or appeared in a number of cases with a religious element, involving spats in mosques, gurdwaras, schules and churches (Roman Catholic and Anglican). On the matter of the Law Society and its stance on same-sex marriage, he writes:
Over 150,000 solicitors support same-sex marriage. I know this because the other week I picked up my copy of the Law Society Gazette and saw that the top story on the front page was headlined ‘Society supports same-sex marriage’. That was rather baffling. Given the nature of lawyers such unanimity seems improbable. Perhaps it was a majority of the 150,000 odd solicitors who supported same sex marriage. Or perhaps not, as I don’t recall the Law Society asking my opinion. I’m not the only solicitor who was surprised.
Perhaps our elected Council had a vote on the issue, and it will be in the minutes. That is not as easy to check as you might imagine. The minutes are available, in the Law Society library in Chancery Lane. But they are not on the shelves to be perused by members, as is the case with Hansard in some of the better libraries. To gain access is quite a rigmarole. However, I have seen a copy of the minutes of the last Council meeting and same-sex marriage was not discussed.
So how does the Law Society arrive at an official position on an issue?
The Law Society is governed in much the same way as the country as a whole. Every few years we have elections; those who rule us take large sums of money from us, and then largely ignore us. Oh yes, when it comes to representing our interests to the wider world, they usually make a mess of it. So it is very much like the governance of the country as a whole.
Who then decided that solicitors would come out so strongly in favour of same-sex marriage? I’ll come back to that, but a blog post by Council member Keith Etherington on an incident some while ago is illuminating. On 16th May he blogged his enthusiastic support for the decision of the Law Society to cancel at short notice a meeting organised by the World Council of Families.
So what was the Law Society’s objection to this meeting? According to the report in the Telegraph, the letter cancelling the meeting said that ‘it is contrary to our diversity policy, espousing as it does an ethos which is opposed to same sex marriage’. Try as I might I simply can’t identify which part of the Law Society’s diversity policy makes compulsory support for a change in the law to enable same sex marriage. Let’s look and see what Des Hudson, Chief Executive of the Law Society, said: “We are proud of our role in promoting diversity in the solicitors’ profession and felt that the content of this conference sat uncomfortably with our stance.” Now that is much clearer. Let me explain.
‘We’ refers to the small group of elected solicitor officials and non-elected non-solicitor senior management who run the Law Society on a day-to-day basis. Their role in promoting diversity in the solicitors’ profession appears to be adding more questions to the interminable forms we must complete, because there is little they can do to change the culture of a firm which is hostile, and there is nothing they need to do where the firm is already committed to equality; this is pure management-speak. It is the final phrase ‘the content of this conference sat uncomfortably with our stance’ which is most interesting. So this was a conference which was actively against same-sex marriage then? Er, well, no it wasn’t. The keynote speaker was Mr Justice Coleridge. Sir Paul Coleridge recently established a charity, the Marriage Foundation, which supports traditional marriage as the best environment for raising children. It most specifically does not oppose same-sex marriage. It is inconceivable that a sitting judge, particularly one of such seniority and experience, would expressly campaign one way or the other about contemplated legislation. The content of the conference included debate. So what the Law Society apparatchiks objected to was debate.
Let’s turn now to the authorship of the Law Society’s response, and its content. It was written by the Family Law Committee of the Law Society. Almost everything they said was questionable one way or another, and I could dissect it line by line, but His Grace would never forgive me if even one of his readers died of boredom, so in my comments I shall restrict myself to the first three sentences:
The Law Society agrees with removing the ban on same-sex marriages to enable all couples, regardless of their gender, to have a civil marriage ceremony.The opening phrase of the sentence is intellectually dishonest. There has never been any such ban, for the simple reason that if something is previously unknown to society, religion and the law, it cannot be described as banned. The final phrase displays confusion, surprising in a group of lawyers who practise in the family courts. The marriage is the exchange of vows which is at the heart of a wedding ceremony. Although it was commonplace to exchange such vows in front of a priest, it was not necessary and only became a requirement for Catholics by the Council of Trent in 1563, and for Anglicans later still by Lord Hardwicke’s Act of 1753. A marriage by simple exchange of vows, sometimes incorrectly called a common law marriage, was possible in Scotland until 2006. A marriage between a Catholic and a Baptist at a register office is a valid sacramental marriage according to both Roman canons and the canons of the Church of England.
The current situation prevents equal access to a civil contract for same sex couples.
That is just plain wrong. The current situation specifically provides equal access to a civil contract, a civil partnership, for same sex couples, which mirrors the law relating to married couples in all respects except one – there is no adultery ground for divorce. I would have thought that one or two of these family law practitioners might have noticed all the references to civil partnership in the Family Procedure Rules. It follows that ‘(i)t therefore constitutes discrimination based on sexual orientation’ is complete tosh. The current law does indeed provide for a civil wedding ceremony for all couples regardless of gender.
If the Law Society considers the social questions unarguable, then what do they have to say about the legal issues? Well apparently there aren’t any. That’s because Law Society President Lucy Scott-Moncrieff says there aren’t any. She is obviously the best qualified lawyer to express a view, specialising as she does in mental health issues. Yes, yes, I can hear you now, chortling that a mental health specialist is ideally qualified on matters concerning the European Court of Human Rights, but there is a serious point here. An unidentified judge of ECtHR – suspected to be the outgoing President Sir Nicolas Bratza – has expressed doubts about whether a ‘religious exception’ provision can survive an application to ECtHR. It is informative to look also at cases within the UK. Most of the widely reported recent cases raising religious issues were either trivial or simply misconceived.
But the Catholic adoption agencies case is an altogether different story. The Equality Act 2010 lists certain ‘protected characteristics’, namely age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Strangely, it remains entirely legal for an adoption agency, as a matter of policy, to refuse to place a black child with a white couple because they consider that it is in the interests of the child to be placed with a black couple. This is entirely in accord with the ethos of the Children Act 1989 which requires that in any decision process the interests of the child are paramount. It is, however, entirely illegal for an adoption agency to refuse, as a matter of policy, to place a child with a gay couple because they consider it is in the best interests of the child to be placed with a straight couple.
So much for the interests of the child being paramount. All of the ‘characteristics’ referred to in the Equality Act 2010 are protected, but some are more protected than others.
The consequences of getting the legal minutiae wrong are far-reaching. Catholic and Non-conformist churches would be unable to offer marriage unless the couple had already married in a register office. For the Church of England it is more complicated. Because of the right of people living within a Church of England parish to demand a marriage in the parish church, that recourse would be unavailable. A change in the law would be required to remove this right, and would be the first step away from the Church of England’s ‘high church, low church, no church’ position and toward disestablishment.
The consequences will be far-reaching even if the legal minutiae are dealt with correctly. It will create what is known as a ‘limping marriage’, recognised in some jurisdictions but not in others. Property rights which arise out of such limping marriages also limp. Limping marriages can create property disputes which cascade down the generations. Then there is the question of capacity to marry, which is determined by the ante-nuptial domicil (broadly speaking, the permanent residence before marriage). Nationality can also come into it, for example British nationals lack capacity to enter into a polygamous marriage. This mean that if Syed travels to his grandparents’ home village in the Punjab and marries, the marriage is not potentially polygamous; perhaps more importantly, if Syeda travels to her grandparents’ home village in the Punjab and marries, that marriage is not potentially polygamous.
Our civil partnerships are an elegant and effective way of granting gay couples equal rights. They have the enormous advantage that they create legal rights independent of the status of marriage. Let us assume that Uganda fails to introduce the death penalty for gays, but does pass a law that Ugandan citizens have no capacity to enter into a same sex marriage. Our gay Ugandan asylum seeker marries in London his boyfriend from Colorado. After years of connubial bliss, the guy from Colorado pops his clogs unexpectedly, having failed to make a will. Like most married couples, their finances are inextricably entwined. The estate of the deceased includes land in Colorado, and his estranged half-brother lays claim to it. The case will turn on the validity of the marriage, whether it is recognised as valid in Colorado, and whether a Ugandan national has capacity to enter into a same sex marriage. My guess is that the winner will be an attorney in Denver. Civil partnerships neither abolish covetous half-brothers nor reform greedy lawyers, but they do minimise the risk from either.
Pretending that there is nothing to debate or, worse still, shouting down those who raise concerns with cries of ‘Homophobe!’ or ‘Bigot!’ does not necessarily do any favours for our LGBT friends and neighbours. Simply because there is no debate, I have never heard any explanation of why same sex marriage is better than a civil partnership. Equality does not require uniformity. In a recent interview in the Telegraph, Sir Derek Jacobi, who has been in a relationship for 35 years and in a civil partnership for 5 years, expressed himself to be content in a civil partnership. I hesitate to quote Iago (not one of Shakespeare’s more appealing characters) but I do wonder whether this campaign ‘robs me of that which not enriches him, but makes me poor indeed’.
That it is a tiny percentage of the population, a minority within a minority, who would take advantage of such a change in the law is not a reason to not consider it. But such a fundamental change, with all its legal and religious implications, does require consideration, and consideration does require debate. That it is the ‘right on’ thing to do is not for me persuasive. But to paraphrase Roberta Flack, I’m not in favour, but I’m open to persuasion. So persuade me.