The debate over same-sex marriage could be summed up as a debate between those who think it will redefine the institution in a way that will undermine the rights of children, and those who think it will merely expand it.
Many same-sex marriage supporters argue that nothing about the character of the institution will change, that bringing same-sex relationships under the umbrella of marriage won’t do anything to alter the institution that hasn’t already been done by opposite-sex couples.
I totally accept the sincerity of their argument, even if I disagree with their conclusion, and so I hope they’ll join me in being rather concerned at the latest news from Scotland.
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It is the ancient principle of Scots law which has spawned a sea of heartache and ended countless marriages but now adultery is facing the prospect of being scrapped altogether.
The introduction of gay marriage has raised fresh questions over its role in modern Scotland amid claims it could breach “human rights”.
Adultery can only take place between a man and woman and MSPs are being urged to back an overhaul of the law to ensure it doesn’t discriminate on the basis of gender. One leading campaign group warns it would be easier to scrap it.
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The Equality Network, which drove the campaign for same-sex marriage, warned an overhaul may be unworkable. “Our understanding is that the unreasonable behaviour basis for divorce should be sufficient to cover all kinds of sexual infidelity, including mixed-sex and same-sex acts,” a spokesman said. “Therefore, in practice, we doubt that there is a need to extend the definition of adultery. What would you include? The definition of sexual act in other laws includes sexual touching with the hand through clothing, for example – should that count as adultery? The best way to do away with the anomaly, if that is felt necessary, would in our view be to abandon the specific term adultery, and deal with all sexual infidelity under unreasonable behaviour.”
Adultery now accounts for less than 1 per cent of divorces in Scotland. There were just 64 cases in 2011/12 out of 9,863 divorces.
A spokesman for Scotland For Marriage said: “Scrapping adultery would send out the message that faithfulness within marriage doesn’t matter. What a desperately sad and reckless thing that would be.”
(Via the Scotsman [1])
Now, maybe the Equality Network is right, and we could cover adultery under “unreasonable behaviour” and change nothing in practice. But adultery as a legal concept is a specific recognition of the crucial, foundational importance of sexual fidelity to marriage, and getting rid of it would certainly further change the character of the institution.
What’s more, on a practical level it’s very easy to imagine unfaithfulness being gradually defined out of an “unreasonable behaviour” standard. What if, for example, the non-monogamy is consensual? This, feeds into the worries that a lot of people have when they read things like this, from leading same-sex marriage campaigner Dan Savage (said to Mark Oppenheimer in a New York Times feature called “Married, with Infidelities” [2]):
“I acknowledge the advantages of monogamy,” Savage told me, “when it comes to sexual safety, infections, emotional safety, paternity assurances. But people in monogamous relationships have to be willing to meet me a quarter of the way and acknowledge the drawbacks of monogamy around boredom, despair, lack of variety, sexual death and being taken for granted.”
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Savage says a more flexible attitude within marriage may be just what the straight community needs. Treating monogamy, rather than honesty or joy or humor, as the main indicator of a successful marriage gives people unrealistic expectations of themselves and their partners.
Savage is not a fringe figure. Nor is he alone.
Perhaps the most influential proponent of same-sex marriage, Andrew Sullivan, who describes himself as a conservative and very much embraces the “expand, not redefine” argument, once wrote the following [3]:
Male-male marriages that survive are likelier to have some kind of informal level of permission and forgiveness and defensible hypocrisy on this score than most male-female marriages or female-female marriages, especially if the men marry young. I think the honesty within these relationships can actually be a good thing and can help sustain a life-long commitment rather than weaken it.
Or consider this, from the recent article [4] by Derek Byrne – a gay man sceptical of gay marriage – in the Irish Times:
I know of many same-sex couples who have been joined in civil partnership and I can say with certainty only one of these is grounded in monogamy. This is not a judgment; it is a fact and an accepted way of life for many gay couples, civilly partnered or not.
Now, I’m not by any means saying that all same-sex marriage supporters agree with the idea that loosening up on monogamy is a good thing, or that they’re all really perfectly OK with transforming marriage, regardless of what they say in public. But some of them do. Some of them are. And not an inconsiderable number – this is a real divide within the same-sex marriage movement.
So to those that don’t agree: if you think that monogamy and faithfulness should still be essential parts of marriage, then it would behoove you to loudly say so.