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22 March 2012

When is a consultation not a consultation?

When is a consultation not a consultation?

Last week the government finally published its official ‘consultation’ on redefining marriage. It has immediately been branded a ‘sham’ because of its disturbing declared intention to ignore any opposing views.

The ‘consultation’ allows 12 weeks for the public to respond with the government probably making its own response in the autumn before considering detailed legislation. The ‘consultation’ has undoubtedly reacted to widespread criticism of its announced intention to consult on ‘how’ to introduce same-sex marriage legislation rather than ‘whether’ to introduce it. Under pressure, it has now included a question which asks the public whether they “agree or disagree” with redefining marriage. However, astonishingly, according to the document itself, the government’s response “will be based on a careful consideration of the points made in consultation, not the number of responses received”.

Despite facing in two ways at once, government ministers went out of their way to confirm that the ‘consultation’ was about ‘how’ to introduce the proposals with equalities minister Lynne Featherstone insisting the government would not turn back on its determination to proceed whatever the outcome.

With public polls suggesting over 70 per cent of the public do not agree with legislating for same-sex marriage and as the grassroots campaign group Coalition for Marriage’s petition soars above 250,000 in just four weeks, it would seem that the government is calculating that if it pays attention to opinion polls and petitions it will not command major public support for such a radical measure. It seems that it has therefore decided to avoid the problem of a consultation in which the overwhelming majority says ‘no’ to the plans by insisting in advance it will not treat the consultation as a normal democratic inquiry. This raises a number of fundamental questions. On the one hand, parliament could force through legislation that did not command public support, though on the other this could be counter-productive in that the public would be much less inclined to treat coercive, imposed legislation with tolerance and the process itself could be open to judicial review. At the same time it would raise major questions about the country’s democratic processes when measures are introduced in a manner more akin to a dictatorship which ignores the views of the people.

Effectively, this represents an attempt to push through a radical social engineering experiment without the public ever having a say on the change. The format of the consultation itself also lends itself to ignoring the potential consequences of redefining marriage, for example, in how schools will be affected or in the legal complexities of reconciling the unreconcilable.

Lord Brennan QC, former chairman of the Bar Council, pointed out the legal absurdities involved in attempting to redefine marriage, not least in the removal of the terms ‘husband’ and ‘wife’ from official forms. He commented: “Regardless of the consultation paper, the British public will want to examine the principles at stake. The exchange of views and argument should be frank yet reasoned and reasonable, for secular bigotry today is as unacceptable as religious zealotry was in the past. We must recognise that marriage has established historical, sociological and religious foundations. Such statutes as affect it are designed primarily to regulate its legal consequences. Such a heritage cannot sensibly be equated to the denial of equality or to the practice of discrimination. Marriage is surely not the mere provision of goods and services by its participants, or churches or ceremonies that solemnise it.”

The consequences of trying to redefine marriage have not been thought through and the prospect of ‘male mothers’ and ‘female fathers’ in addition to ‘male wives’ and ‘female husbands’ are just some obvious examples of the absurd torturing of the English language that will accompany such attempts to equalise something that is patently not the same.

While the government continues to claim that the proposals are based on equality, it is clear that they are based on a fundamental absurdity of trying to make opposites the same. Government ministers have been arguing that if marriage is so good then it should be open to people of the same sex. But this entirely misses the point. If some same-sex partners are saying that they want the benefits of ‘marriage’ (and many are not) they have got them already - it's called ‘civil partnership’. Marriage is a heterosexual institution; civil partnership is a homosexual institution. This is confirmed by the fact that the covernment has made it clear it is not ending civil partnerships nor is it making civil partnerships open to heterosexuals. Suddenly and inconsistently ‘equality’ becomes inconvenient and disposable.

Imposing a law that says something is its opposite cannot make it so. At least in a non-Orwellian world.