Equal Marriage in Scotland

The Marriage and Civil Partnership (Scotland) Bill has been introduced before the Scottish Parliament.

In Scotland as in England, there will be two separate institutions, gay marriage and straight marriage, both called “marriage”, but with particular differences. “Adultery has the same meaning for [both]”, which words, paradoxically, differentiate them: sexual betrayal is only adultery if it is opposite-sex. There is voidability of a marriage as in England: in England, the ground is called “non-consummation”, in Scotland, “impotence”, but it comes to the same thing, the failure to consummate. This only applies to opposite-sex marriage.

It is a Civil Partnership bill: I rather hoped it would create opposite-sex civil partnerships, just to see what people wanted. The union of two people, indefinitely, is the meaning of the procedure. Allowing opposite sex civil partnerships would show whether people believed that “marriage” has a religious or just a civil meaning, and whether they wanted to distance themselves from it.

Religious bodies may request to be registered to perform same sex marriages. There is no particular provision for the Church of Scotland. My old lot, the Scottish Episcopal Church, say that The Church’s current position is that marriage is a union between a man and a woman and this clarity allows us the space to listen to the many differing views held by the members of our Church. I hope that means change is possible. I fear it means that resistors have the upper hand. But even the Church of Scotland offers hope: while it “opposes” same sex marriage, it is “acutely aware that opinions differ among our own members and that many people are anxious and hurt in the current situation. We re-iterate that we believe homophobia to be sinful.”

Civil partners may marry each other, and the marriage is backdated to the date of the civil partnership ceremony.

I read “Protection of freedom of expression” and my hackles rise, but clause 14 adds nothing. The Bill does not affect the human rights to freedom of expression or freedom of thought, conscience and religion. Well, duh.

The bill grants jurisdiction to the sheriff court in actions for declarator of marriage. In Scotland, marriage may be by “Cohabitation with habit and repute”- where people live together, the court may declare them married without a ceremony. However, this is a dead letter: the law requires “repute”. They must pretend to be married. In the past, cohabiting couples might have pretended to be married in order to avoid scandal, but now there is no shame in cohabitation, so people do not pretend. The provision is extended to same sex couples.

A married trans person cannot get a gender recognition certificate unless his/her spouse consents, but where the spouse does, the continuity of the marriage is not affected. A trans person in a civil partnership also needs consent from his/her partner to get a GRC, and regulations may provide for the civil partnership to be converted into a marriage. This indicates that civil partnership was less than marriage, separate and therefore not equal.

Thank God for equal marriage! It is a powerful symbol of equality.