Lord Wilson - La Verite est en marche et rien ne l'arretera, Ctd

Lord Wilson on how concept of marriage has changed over time, in lecture for Northern Ireland Medico-Legal Society http://t.co/ZOYDNCA2SR
— UK Supreme Court (@UKSupremeCourt) February 19, 2014

Lord Wilson of the UK Supreme Court invited his listeners to consider the changing rules about who has been able to enter into marriage and the emergence of rules for easy exit from marriage. Changes which have altered the whole concept of marriage. He concluded by asking, almost rhetorically:

"I wonder whether Northern Ireland will for long be able to hold back the tide in favour of same sex marriages which laps against all Western shores."

His talk included a few highlights that gave weight to the irresistible inevitability of same-sex marriage.

Firstly, on who marriage was available to. One:

"Up until 1863, here in Ireland, a marriage between a Protestant and a Roman Catholic was void."

Two:

"In 1924 the state of Virginia passed the Racial Integrity Act which made it a crime for a white person to marry a black person and which also decreed that one drop of African ancestry made a person black... In the UK too inter-racial marriage or cohabitation is no longer regarded as a threat. Apparently two million of us are now of mixed race; and, when we see signs of it in the way a person looks, we no longer give it a second thought.

Secondly, on the dissolution of the union, divorce. Divorce became irresistible in the Victorian era. Lord Wilson explained:

"Let me identify three reasons for this. First, the basis upon which people chose to be married had changed. Instead of a property transaction, often arranged by the couple’s parents in order to secure a dowry for the husband and life-long protection for the wife, or even to cement a valuable union between the two families, marriage had become, at least in part, an expression of love between the couple; and so their behaviour towards each other during the marriage had assumed a significance which it had lacked at a time when marriage had been a property transaction. [Incidentally I have always been captivated by the U.S. Declaration of Independence 177659, which makes the pursuit of happiness into a right of man. Apparently Jefferson and the others crossed out a reference to a right of property and wrote in the pursuit of happiness. Bravo!] Second, the increased length of human life generated greater opportunity for strain within a marriage – partly because we do all change as the years go by. Third, the absence of divorce had not inhibited many husbands – and even a few brave wives – from leaving unhappy marriages and entering new relationships; but of course they had not been able to regularise their relationships in a second marriage and so the children born as a result of them had been illegitimate (being a description which, I am happy to say, has become off-limits during my professional lifetime: the only thing which can possibly be described as illegitimate is the conduct, if adulterous, of the parents). In other words the absence of divorce was paradoxically preventing marriage. So, in 1857, Parliament introduced divorce for England and Wales

Thirdly, Lord Wilson looked at the legal effects of the union of marriage:

"For centuries a wife had no right under our law in England and Ireland to hold property, to enter into a contract or to sue a third party for damages: this was the effect of the doctrine of coverture, under which her legal identity was covered up by her husband. This changed in 188261. Formerly a husband did not commit the offence of rape if the victim was his wife. This changed in 199162. It used to be a criminal offence to commit adultery. This changed in 185763. In divorce proceedings a wife had no right to any part of her husband’s capital and her right to be supported by his periodical payments fell away if the court considered her to have been the “guilty party”. This changed in the 1960s. Indeed ever since then we judges have been tinkering – and, in introducing in 2000 what soon became a presumption that matrimonial property should be shared equally, Lord Nicholls (not a family lawyer but a breath of fresh air) did rather more than to tinker – with the financial consequences of divorce."

Four, the judicial activism of Europe's Strasbourg court:

"It was the Convention which, by the Strasbourg decision in the Dudgeon case in 1981, led to your decriminalisation of homosexual acts here. It was the Convention which, by the Strasbourg decision in the Sutherland case in 1996, led to the equalisation of the age of consent for same sex acts with that for opposite sex acts. It was the Convention which, by the Strasbourg decision in the Smith and Grady case in 1999, led to the right of gay people to serve openly in our armed forces. These are milestones along the road to equal treatment for gay people."

Also, in 2013 the NI Court of Appeal issued a resounding ruling that the Northern Irish ban on the adoption of a child by civil partners (or even by just one of them) was discriminatory.

Another comment:

"Heterosexuals, some of whom, understandably in the light of their genetic orientation, may instinctively recoil from the contemplation of some homosexual acts, should not allow their own sexual instincts to invade a completely different part of their brain, namely their judgement upon what the law should permit gay people to do."

Fifth:

"Same sex marriage is not a novel concept. It was allowed in ancient Egypt and in Republican Rome although it became outlawed under the Roman Empire72. Then, for the next 1500 years, Christian doctrine (and I say this as a committed member of the Church of England) cast an irrational opprobrium upon all sexual acts other than procreative ones. In my view, the malign effects of the doctrine leave a residue even today. At all events, the recent re-emergence of the right of same sex couples to marry began in the Netherlands in 2001. Since then it has been introduced in eight other European countries, including Spain and recently France; and the right is now established in 13 U.S. states."

He concluded:

"Far from destroying marriage, I think that to allow same sex couples into it strengthens it; but in my view the most important benefit of same sex marriage is the symbol that it holds up to the heterosexual community, not forgetting teenagers apprehensively trying to make sense of their own emerging sexuality, that each of the two types of intimate adult love is as valid as the other. The availability of marriage properly dignifies same sex love. To the question “why should same sex couples, who can as civil partners already enjoy all relevant rights, be allowed to get married?”, the proper response in my view is “why shouldn’t they?”. And, to that question, it is, as I respectfully suggest to you, not good enough to reply “because marriage is between a man and a woman”. That would be to elevate a feature of the practice of marriage in a number of prior centuries, however universal, into a necessarily intrinsic constituent of it."

Address in full here.