My Lords, this is the last amendment that we shall consider at any length in this Committee. However, it is rather an important amendment and it is in the nature of a probing amendment, as I will make clear as I proceed.
When the Marriage Act 1949 was passed, Section 1 set out the prohibited degrees in a way that said “A man shall not marry” and then a column of positions of a woman whom he could not marry, and “A woman shall not marry” and another column of men of different positions that she could not marry. If Section 1 had stayed as it was then it would not apply to same-sex couples.
In the Civil Partnership Act 2004, as I said in my speech at Second Reading, the intention was to produce for people who were in same-sex relationships a legal position as like marriage as possible. In order to do that, Section 1 of the Marriage Act had to be amended so that instead of expressing it in these columns it did it by way of relationships. That was that done in the Civil Partnership Act. Section 1 of the 1949 Act was also amended so that the Act no longer proceeded on the columns but went on relationships as the Civil Partnership Act did.
When the 1949 Act was passed, as I said, there was no question of it applying to same-sex marriage. I strongly believe that the same-sex couples marriage which this Bill introduces is different in important respects from opposite-sex marriage. In particular, opposite-sex marriage includes as one of its purposes—not its only purpose—the natural procreation of children. That is not a purpose of the same-sex couples marriage for reasons that are obvious.
The second point I want to make is that I have heard same-sex couples marriage described as gay marriage. That is not correct. The correct description is same-sex couples marriage and I can see nothing in the Bill that suggests anything to do with sexual relationships. Therefore it is perfectly open for people in same-sex marriages to have a completely platonic relationship. That raises the question of the applicability
of the prohibited degrees to same-sex marriage. I want to raise the question of whether prohibition requires reconsideration in relation to same-sex marriage. It is one thing to have it for opposite-sex marriage but does it require reconsideration in respect of same-sex marriage?
In introducing the Bill, my noble friend said:
“So much do we believe in marriage and its importance to our society, we want all couples, whether gay or straight, who are prepared to affirm publicly their commitment to each other and all the responsibility and joy that comes with it, to be free to marry”.—[Official Report, 3/6/13; col. 938.]
That means all. Obviously if someone is married already there is no possibility or freedom to remarry, but subject to that kind of consideration the general assertion is that all couples should be free to marry. Therefore we have to look at the prohibited degrees which are prohibitions on couples who may wish to marry. One such couple—to take an example—is brothers. I know of no love which is more widely commended than brotherly love. There is nothing to suggest that brothers cannot love each other perfectly properly and in such a way as to be willing to commit to each other in the full sense with which my noble friend used the expression in introducing this Bill, unless of course it has some relationship to what the noble Baroness, Lady Deech, was talking about later—earlier—today. Yes, I am getting confused. At 11.40 pm it is not surprising.
Earlier today she raised the question in relation to civil partnerships but I raise the question more fundamentally in relation to marriage and same-sex marriage in particular. At present I do not understand why it should be closed to all of the present prohibited degrees. I would like to know to what extent the Government have previously analysed this position and have reached a conclusion on it because as yet I have seen no discussion of this particular aspect in any detail. It is an important aspect to my mind, and I think it has a bearing on how some people in our society view the provision for same-sex couples marriage. A lot of people—we have heard it today once or twice—refer to it as gay marriage. That is restricting the scope of this Bill in a way that is not justified by the terms of the Bill itself.
The importance of the fact that ordinary marriage—what I will call opposite-sex marriage—has as one of its purposes the natural procreation of children is that the institution is there to offer protection and safeguards to children. When it works properly it is a very effective safeguard for children. As I said the other day, the state has not shown the ability to protect children to anything like the same extent as a well functioning marriage.
I received in connection with this Committee stage a request to make it clear that I am against homophobic bullying in any way. I certainly want to make that abundantly clear. The function of ordinary marriage—the marriage of opposite sexes—includes protecting the children against any form of bullying and any form of homophobic bullying, and preventing them taking part in such bullying. We all know that children are quite quick to notice differences between their circumstances and those of other children, perhaps in the same class. That is often a source of improper bullying of one kind or another. I make it clear that I
regard one of the functions of opposite-sex marriage as protecting against all forms of damage to the children.
The noble Baroness on the Opposition Front Bench referred, in the context of another amendment, to the presumption that when a child is born to a married woman the other party to the marriage is parent of the child. That presumption is set aside in this Bill—an important fact that must be taken into account. In opposite-sex marriage the three ways in which children of the marriage can be produced are by natural procreation, IVF or adoption. In same-sex marriage it will be by IVF or possibly full sexual relations, which according to the Bill may constitute adultery—which is slightly unfortunate from the point of view of the child being produced. According to the Bill, that child will have no relationship with the marriage at all. Of course, the other method is by adoption.
Same-sex marriage, as the Bill makes plain, does not embrace children in the same way as the natural child is embraced by the marriage of opposite-sex couples. All of this has a bearing on the relationships that are prohibited—the prohibited degrees. At the moment I can see no reason why brothers and sisters should not be able to have a same-sex marriage if they felt that they wanted to. A noble Lord pointed out earlier that of course you can end a relationship only with a divorce. That is absolutely true. The marriage relationship would be over and above the relationship between sisters or brothers. If they decided to end the marriage relationship that would be sad, but it can happen with same-sex and opposite-sex couples and it is sad whenever it happens. However, it could happen. One would not wish to contemplate that as happening very often, but of course it is certainly a possibility.
Against the background that all couples who love one another are able to marry—that is what we want—I find it difficult to see why brothers or sisters who are willing to marry should not be able to do so. The Bill needs to consider a little more carefully than it has done this provision raised by the noble Baronesses on the Front Bench in their amendment for no presumption in favour of a child born to a woman in a same-sex marriage. That child is left without any marriage connection at all as far as I can see. That seems to me be highly unfortunate. Although it is important to consider the rights of adults in relation to same-sex marriage—that is what the Bill is primarily about—it is extremely important to think about future generations and the relationship with children as well as the prohibited degrees matters that I mentioned. I believe that the prohibited degrees were first inserted into the marriage institution for the primary reason of protecting against inbreeding with normal procreation. These reasons, of course, do not have any place in same-sex marriage, and therefore I think we need to look at the justification, if any, for the prohibited degrees, at least in their present form. I beg to move.
11.45 pm