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On January 22nd, 2015 Stephen Fry married his partner, or boyfriend, Elliott Spencer. Elliott is 30 years Fry's junior. Slim, much smaller physically, and with a dark and tangled mass of untidy, uncombed hair, he looked out happily at the camera as he signed the register. Stephen Fry, beside him, had eyes only for him and the look on his face was benign and loving. They both wore yellow carnations in their lapels and Stephen Fry, who is the host of the television Quiz Show, QI, announced the event on Twitter: "Gosh! Elliott G Spencer and I go into a room as two people, sign a book and leave as one. Amazing!"
What Stephen Fry meant by this was that they had married and the event had amazed him. They had done this under English law. It is possible that in the very near future similar matrimonial assertions will become permissible under Irish law and same-sex marriage will be accepted in this country. Under the guise of “equality” many “unions” may become blessed as “marriages”; but in the eyes of a large number of people such a change focuses mainly on those with same-sex desires wanting to belong to a state called marriage at present denied them.
Those same-sex desires do not qualify those who express them to be subsumed among those with the unique access to procreation that is at the heart of marriage. This is as I understand marriage and as I believe in it. But the desires do qualify them for the unions that also describe the main objective in life of same-sex couples. This difference, between a “union” and a “marriage”, is the dilemma at the heart of the approaching debate in Ireland.
Is marriage unique and precious? and why do I focus on the word “nature” as a description of marriage?
The greater part of my life has been lived under a set of principles of which the most important, without any shadow of doubt, has been the state of marriage in which the whole of my personal happiness has been enshrined. The marriage I talk of may have as an objective a happiness not dissimilar from that evident in the faces of Stephen Fry and Elliott Spencer and I would not, for one moment, wish to detract from their belief and expectation as they conformed with the legal requirement in England that led to them becoming a married couple.
However, I do not accept that theirs is a real marriage at all. And I will never so accept it, despite the changes to the law in Britain, possibly in the United States, and the further possibility that similar changes will soon become the law of this State.
My views are strictly governed by the title of this essay, which is about the unique and precious nature of marriage which I feel blessed by in my own life. from that title I take first the word “nature”. It is the “nature” of life that bestows on marriage its unique character.
All living organisms on the surface of the world, and beneath and above that surface, are motivated by simple and basic instincts, the two most important of which are survival and procreation. These cannot easily be separated. From the tiniest embodiment of life on this planet to the large and complicated nature of animals and birds, and of men and women, survival goes hand-in-hand with the desire, need or instinct to procreate. All life depends on this primal expression of life’s purpose. A great part of the actual meaning of my life, and the marriage that is an embodiment of what I am and have been for the greater part of this past century, is vested in this simple but unique truth.
For me the meaning of marriage is a unique accomplishment shared not just with the vast majority of human beings on the planet, but something that is shared also with all living creatures. Their instinct to survive and procreate, sustaining the eternity of their ongoing prevalence, is the primal reason for the existence within the human condition of the union between male and female. In civilised and primitive society we call this marriage. We have done so for centuries. And the grounding is in nature and of nature, bringing men and women together and drawing the roots of their togetherness from various combinations of sexual characteristics.
I accept the force of nature that is fundamental to marriage. I go further, and see it is unique in its embodiment of the second essential purpose in life – pro-creation. And finally I find in it the most precious and lasting part of my life and something I have personally lived in for the whole of that adult life.
No law, no willingness to help other people of the same sex who love each other and wish to declare and make permanent in law that love, by the making of new laws, can be achieved by redefining “marriage”. Such an objective can be achieved in other ways, outside the re-defining of marriage. Moreover there are distinct and valid formulae for so doing, one example recognised being civil partnership. But they do not reach any kind of climax or reality under the term “marriage” which I believe is a unique and inviolable human condition that can only manifest itself in the union between a man and a woman.
I never knew this when young. It was not taught. I came to it through nature together with my responses to sexual attraction as I grew up. I cannot say at what point in my life I came to understand this view of marriage but it grew out of sexual attraction and love. I hold to it now after experiencing its reality for more than half a century.
It never occurred to me, as a young man, that I would not marry. This may have been influenced by childhood experience. I came from an unhappy household. Many people do. Mine was turbulent, uncertain and perilous. My parents were not married. My father had a previous marriage that had broken down. His wife declined to give him a divorce and my mother’s situation was the difficult one of making a choice between the man she loved and her father, whom she also loved. He threatened to disown her if she went to live with a divorced man she could not marry. She disobeyed him. He did indeed disown her and the wreckage of that cruel destiny shaped the lives of the family until, and then indeed long after, her death. Theirs, nevertheless, was a common law marriage. It was as real as such, and we the children of it were aware of its unique value to our lives when it ended, beside her death-bed, in our house in Croydon on August 1st, 1943.
I do not now regard the confession of this background to my personal life as significant or material, although it matters here as part of the ongoing reality of my father’s experiences of one uncertain marriage leading to another. I do see it as having played a part in my unswerving belief in my own yet-to-be achieved marriage which took place on the same date as my mother’s death, August 1st, but 16 years later. I have told the story of that early life in fiction and memoir and it now lies, in its curious redeemed existence in the past, where literature goes on living, its new life-blood the product of memory and imagination. What came out of it however is part of the present and future and represents unequivocally the cornerstone of the edifice of marriage that I hold both dear and unique, natural and precious. It is in fact the most precious possession I have and it is a joy to me that I still share it with my wife. I share it with a host of other people many of whom did not exist but are now part of the bloodline that came from my mothers union with my father. And I share it with many more I never knew, who belonged earlier in time than I can remember, belonging also to the same bloodline. That has now become the family that marriage extends into. It is bound together not always by love but by the great product of the same love which is family.
That love has been harshly earned. Two years after that marriage in August 1959 had brought together two notable families, my wife and I had our first child. She was christened Emma. She died in infancy, less than three months later. Nature can be a cruel tyrant, cutting down the fruits of procreation and rendering barren for a time the whole of the shared life within a marriage. It is within the nature of marriage that this sharing embraces friends and relations who value and contribute to the family. That is one of the wonders of marriage.
And so, with blessed help, we survived. We ran away from the tragic circumstances of her death. This was a mistake. We came back to find an outpouring of consolation and love which helped us to recover. In this there lay the other unique mystery of marriage, the widespread counselling towards survival and, behind it, the vital, perhaps suppressed message that we should go on. Nature endorsed the same message, calling on us to procreate again, and of course we did.
Our second child, a son, was christened Hugo and was precious beyond belief – perhaps because we had passed through a barrier of belief with Emma, a barrier that changed irreversibly our earlier sense of inviolability. Nature had taught us to feel secure and then taught us not to be complacent in our belief that we were invincible. We were not. But a growing army of relations and friends endorsed what we were and what we believed life contained.
A second son was born to us 21 months after the first. We called him Sam. He was sickly at birth and had a difficult time with his health during his childhood. Then we had a daughter, bringing us a different kind of joy and romance.
The fulfilment of these 30 years of survival and procreation came to an end at that point, by which time brothers and sisters of the wider family had produced many different equations of the unique and precious nature of marriage. A widening towards infinity seemed to be the message of the family expansion that governed and shaped our lives. The incredible magic of procreation had endless ways of colouring the ever-growing number of lives that derived from the primal human need to imprint upon time a bloodline that was unique.
The existence of the children, even with one cut off in infancy, had expanded our impact on the world and had expanded too the rich rewards of giving birth. Life was lived as an expression of destiny, heritage, a space to live and expand in, and the prospect of family life and human life containing our genetic inheritance forever.
The experiences of procreation shaped us, just as survival had shaped us. And in the middle years of life, with children growing up and departing, and with the welcome likelihood of them marrying and going on with the business for which we provided the example, we counted the cost and set it against the incomparable richness of what we had. That procreative line led to the next generation and to five grandchildren. And there, for a time, it has stopped. Yet it has done so with the natural and positive expectation that another generation will follow and that the magical mystery of marriage and family will continue the bloodline.
Then darkness descended with the death of our second child, Samuel, whose health had always been difficult. He died at the age of 49. By then, as well, the marriage had suffered a living setback – the irreversible mental illness of my wife, who contracted Alzheimer’s disease. Her diminished ability to respond to what had happened to her son was at the time a relief. Nature, in all its revealed richness, taught us the baleful side of that unique and precious nature of marriage – that it gives the full variety of life but with all the painful inevitabilities of the shared journey through that life.
What I describe cannot be compared with any other state of human existence, nor with a form of marriage which is not open to birth and procreation, nor with a form of marriage that is reliant on adoption, nor on fostering, nor on any other form of family expansion, however precious or well-meaning, since that will always remain a clearly different thing.
Regrettably and unfortunately, this is also the case with adoption and fostering by heterosexual couples. These cannot, for various reasons, have their own children. Yet another category is that of couples who do not want to have children or cannot have children and have wonderful or satisfactory marriages. I still hold that marriage, for the vast majority worldwide clearly has an intent and purpose unique to itself and for that same majority requires the procreative element at least potentially in order to grow and enrich human beings within nature. Nothing else will do.
The wider history of marriage
I turn now to the historic elements of marriage as outlined in the narrative of my own personal marriage given above and as extrapolated from it.
Marriage is central to the concept of family and has been so defined in recent centuries down to our own as “the small community formed by the union of one man with one woman, and by the increase of children born to them”. In our time and across the modern world, paralleled, or copied, or reflected in most countries, these small communities constituted the germ-cells of early society and have continued down to our times to be the basis of every society contributing to its fundamental social structure.
The Constitution, under the clause headed “The Family”, makes a pledge that links it together with “Marriage” thus: “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.” By the narrowest of margins the dissolution of marriage by divorce was passed in a referendum. It did not, and does not affect the “Family” Clause in the Constitution however, other than reducing the number relying on that pledge. Nor does it undermine the substantive bond between “Family” and “Marriage”. What it did do, or should have done, was alert us to the fine balance between success and failure in marriage. It should also have moderated judgment about the nature of marriage, a moderation bringing caution to bear. The current embracing of “same-sex marriage” would suggest precisely the opposite. It seems to have opened a gate of choices worrying in its extent.
The historical view of marriage
There was, from the time of Abraham a biblical emphasis on family, often overwhelming. The extension of the procreative spirit within tribes and races, accompanied by the prodigious begetting of children, is centrally part of the basis of human narrative, legend and belief in the Old Testament. In the New Testament there are certain changes, notably in the new focus on the family as the Holy Family. It was a reflection of the power of men over women, in those societies that the plurality of wives was a significant factor.
I was particularly moved, this Epiphany-tide, by the Gospel reading giving the account of the Holy Family going up to Jerusalem and losing Jesus there and having to come back to find him, a task which took them three days. And then finding the 12-year-old boy discoursing with the learned doctors in the Temple and astonishing all who heard him. “Wist ye not”, he tells his mother, “that I must be about my Father’s business?” Her response is silence, “but she kept all these sayings in her heart”. Silent, too, most of the time, is our own judgment of the unique and precious nature of marriage.
The emphasis on female chastity and on polygamy in marriage condoning the idea of plurality of wives did not disturb the basic concept of family as a product of marriage. This was so in Indian, Greek, Roman and other early societies. It was regarded as the most primitive and basic of human associations. Widely, and in innumerable societies in the world today, it is still so deemed. It is defined as such in many state constitutions, including our own. I would hazard a guess that this is still overwhelmingly the case in Ireland. We shall see. One can range over the whole world, finding variety in detail but cohesion in the essentials that draw marriage, family and the binding together of societies together.
In what is happening now in Ireland we are doing what we often unconsciously do, seeking guidance in law and social responses from our near neighbour, England. How wrong we are! English law has always considered marriage in no other light than as a civil contract; the holiness of the matrimonial state being left entirely to the ecclesiastical law. And what should seem astonishing – the easy transfer of natural marriage to unnatural same-sex marriage – is consistent with a deep difference between our two countries. It is this that creates a positive response to the sentiments expressed by Stephen Fry towards his partner, Elliott Spencer, quoted at the beginning of this paper, in a country with no defining constitution on which our own fundamental beliefs about family and marriage depend.
What has remained powerful in Ireland, until this most recent assault on it, is a constant concept of blood and kinship through procreation defining society at every level. More widely in the world, and at a deeper level in England too, this concept of blood and kinship through procreation ran through such groups as monarchy, the nobility, the warrior class, intellectuals, sportsmen, creators, performers and many other categories. The pride that is widely held or felt in such social definitions derives inescapably through knowledge and support for the bloodline. And within that is the unique character of each individual family.
Blood, kinship, inheritance and the law
As to the concept of property and its ownership, Aristotle defined this as deriving from man’s relationship with woman. Fairly universally, his interpretation of the origin of society, of its beginnings in the family, has been accepted and is still accepted today. Out of it grew and still grows the legal system and the normal inheritance in families where the eldest son succeeds to the father’s and the family’s wealth on the father’s death. Families group and become communities, then clans, then tribes, then societies, then peoples, countries and states. Ireland’s way was different, not deferring to primogeniture, as most other societies. But the State’s laws are widely structured to protect and enhance the residual rights of family members over others in respect of property and wealth.
All of this and much more will be threatened if we move away from the concept of blood, kinship, birth and procreation as the source of society’s unending structure and shape, in favour of a quite different set of references and the laws that will need to be changed in a new search for a thing called “equality”. There never was, and there never will be, equality of the kind being preached to us. Yet if we pass this referendum the evolution of generations by blood will be replaced by an entirely different set of objectives, not grounded in birth and procreation but in concepts that will require wide-ranging reform of our legal system and our Constitution.
If the referendum proposal is carried, those of us who opposed it will have the satisfaction of watching some of those who supported it oppose changes in the future to, for example, the consanguinity laws. Their erstwhile friends will accuse them of being homophobic or some such, the very accusation that such people are liable to throw at those who will oppose same-sex marriage in the coming months. It will be a sad but irreversible outcome of this referendum, if it is passed, to watch the scales fall from the eyes of some of today’s supporters of same-sex marriage when the extensive and ponderous, and in many respects unwelcome changes to the law that will become a necessary part of dismantling many of the significant rights that will no longer apply. The entire edifice of centuries-old family law will have to change as a result.
What heterosexuals have, homosexuals must also have. If men and woman can marry, then men with men and women with women also should be free to marry. If this happens then why not sons marrying mothers, or indeed fathers, and sisters marrying sisters? Why should the transfer of marriage to same-sex unions, motivated by individual desire, stop there? Some of the proponents of same-sex marriage acknowledge and even advocate, as an inherent consequence of the change, that consanguinity can have no place in such a neutral marriage regime due to the breaking of the link between marriage and procreation. This nightmare situation could in theory be blocked by new consanguinity legislation, blocking part of the new prescription for same-sex marriage, but on recent experience of this branch of legislation the change, or changes, would almost certainly be poorly drafted and lead us into the further nightmare of revising a nightmare “solution”. In any case what would be the logic of having consanguinity rules for such a same-sex union? Society’s rules against incest are based on the fact that close sexual relations between siblings and kindred lead to offspring who are mentally or physically damaged. But how justify such rules for same-sex kindred who have no possibility of producing children?
Shadows of doubt about state commitment
At this point the great shadow of doubt about the ability of the Irish State to go through with this process at all emerges. Belief in its thorough and logical debate must, for various reasons, be suspended right now. We have had no Green Paper on it. We have had no White Paper. We can have had, it seems, no detailed presentation to the Government of the full ramifications of what is being attempted. Indeed we face the quite extraordinary spectacle of Frances Fitzgerald, Minister for Justice, whose duty it should have been to lay before the Government a full schema of legal and constitutional changes that would follow a “Yes” vote, engaging herself in the referendum campaign and spearheading it on behalf of Fine Gael, whose leader has already declared his support for the same-sex marriage proposal.
We might well ask, what is being attempted? Many of the points already raised, or yet to be raised in this comparatively simple paper I set before you, have hardly been touched on at all by those who rule us.
The required legislative changes will become either immediately necessary, or necessary in the short-term, though in all probability the necessity will be moved into that strange and uniquely Irish nirvana where laws hang in expectation of being passed, but only as a result of the miraculous intervention of generations not yet born? Alternatively, a constitutional action will bring us to our knees. The task is a massive one and I would suggest that planning of anything more than a vague and rudimentary kind has not so far happened.
Family law, marriage law, and the concomitant laws affecting children and adoption and other human rights will all be needing quite extensive and detailed change if the State makes a broad decision to change the definition of marriage. There is so far no evidence of this level of thinking. There have been few occasions of the magnitude of this one where some kind of necessary public document outline all the legal and social changes before us has been, so far, noticeable by its absence. Instead, we are notionally advised to think about equality. Reading newspaper correspondents has the worrying effect on me at any rate of revealing a hopelessly jejune grasp upon the enormity of what we contemplate in immediate social change.
Key legal points
Same-sex unions would have the advantage of not requiring impotence or incapacity to render their marriages void. The so-called “marriage” would start off by being void. If there were to be legal equality between same-sex and opposite sex unions, there surely would be no justification for retaining impotence or incapacity as a ground for regarding such a union as invalid?
Similar uncertainty arises over adultery. How would the State or the individual define adultery between same-sex couples? Adultery is a ground for dissolving marriage under our divorce law. How would that concept apply to same-sex unions? Yet if the Constitution is changed both types of “marriages” must logically and legally be treated as exactly the same.
How to recognise conflict over access
Many social alternatives have emerged, notably in the last two centuries, including absolute sexual promiscuity leading to polyandry (plurality of husbands or paramours). And it may be that, with “same-sex marriage” a new phase in this cycle of family alternatives has been reached. But it lies outside the historical norm of marriage as a social institution. Marriage involving procreative powers, these powers normally held in faithful and lasting union, remains the world’s norm and even if supplanted by the growth of other forms of procreative union (such as those referred to above) it cannot equate with same-sex union which has no normal procreative element in its make-up. That is a sterile union in terms of birth and pro-creation and it must fall on that fact alone in terms of the equality argument since same-sex unions do not fulfil the basic and fundamental capacity of marriage, the capacity to bring children into the world. It cannot therefore be given access to constitutional, legal and social recognition as “marriage” in the form usually understood up to now. Do we know how we are going to change that? Have the public been informed? Have members of the Government been informed?
At present a homosexual has the same right to marry as a heterosexual. Marriage, if defined as requiring the procreative capacity, is already available. So is normal marriage if the heterosexual partners do not seek to procreate. Neither the homosexual nor the heterosexual has the right to marry another person of the same sex. That is legal and social equality, attaching to all citizens. The present claim, therefore, is not to an equal right to marry but to an entirely new, and exclusive right to be given to applicants to acquire the constitutional status of “marriage” with a person of the same sex and, in consequence to claim the title of “family”, based on that marriage.
This takes the argument beyond the issues of defining marriage currently or defining the family currently. Such a new right as “same-sex marriage” would change fundamentally the nature and even the name of “marriage”. For a modest 10 per cent of people, or less, the word would for many always be in inverted commas. That would lose for it its most vital and fundamental definition, involving the inescapable capacity in marriage to procreate.
A heterosexual marriage is voidable if impotence or incapacity at the time of marriage is later established. This rule of law is directly comparable to the same-sex impediment, the law against incest, except that a same-sex "marriage" would be self-evidently void ab initio and not just voidable at the suit of one of the spouses.
In summary, on the equality issue the heterosexual marriage has within it the capacity to procreate and give birth and therefore to have and cherish and develop the natural family unit through the natural lives of the adults and children and grandparents and grandchildren in a manner which I have outlined at the beginning of this paper.
With the homosexual equivalent there is no natural family in the biological sense. The child, or children, if sought, are imported from outside, deprived of their natural father, mother and siblings and of the array of more distant relations such as I outline above in my own case. Is this fair on them?
The burden of replacing this lack with something which mirrors the natural family is an artificial one, many parts of which are impossible to simulate. The two persons, of the same sex, create a limited institution, calling it marriage but at the same time knowingly depriving their adopted child or children of their natural and imprescriptible rights to their father and mother as they are currently set out in the Constitution. Though changing the Constitution is a fashionable idea at present, unexamined in its full detail, this particular change is impossible just now because we have not, and cannot, define either the “natural” or the “imprescriptible” rights involved. There can therefore be no essential difference or inequality in treatment between heterosexual marriage and homosexual marriage (if we create it, union if we do not) because the gap between them is too great and the inequality too large to define.
We recently confirmed in the 2012 Children’s Rights Referendum, the State’s duty “to protect and vindicate the natural and imprescriptible rights of the child” and also to promote the best interests of the child. Same-sex marriage would reverse this decision by removing the genetic basis for that relationship. A genetic basis would still be in place, in theory, from outside the marriage relation of the same-sex couple in respect of the child or children they acquire and they would – in theory at any rate – have taken charge of certain duties as yet undefined but fundamental to the recent re-writing of the State’s duty to the child.
In this important dimension of human life under the Constitution, homosexual unions and heterosexual unions are not equivalent social entities for the purposes of society and the State and never can be.
As to marriage itself, the legal effects would be radical, widespread and irreversible. Sexual complementarity would become optional, creating an inequality against marriage in its present form and changing forever, and irreversibly – the relationship between Church and State. There would in fact be no relationship, since the existence of the Church, in respect of marriage, is based on nature and belief, neither of which – as so far argued – would be left in control of the process. The rupture between the two would be virtually complete, with a substantial part of marriage law having to be re-written, including some of the grounds for divorce or legal separation. It is difficult to see any consequence other than a complete rupture between Church and State in respect of marriage leading to entirely separate civil and religious marriage ceremonies and registration.
At a minimum, much of the received law of marriage would have to be revised and re-enacted. Much of the family case law currently in place would have to be abandoned in order that the courts would be able to take account of the new concept of marriage invented by the proposed amendment.
The constitutional imperatives
Constitutionally we would have to create a set of circumstance where whatever is permitted in one case must be permitted in the other. The law of nullity would change for all marriages, on the grounds already stated, that impotence or incapacity would no longer justify the voiding of any marriage, nor would adultery be relevant as a justification for judicial separation.
This is only the beginning of an analysis that does not, at this point in my own thinking, engage with the huge problem of amending the Constitution of the State and amending also a very substantial body of law enacted under that Constitution as well as having been inherited from past centuries of common law.
Equality, the rights of children, marriage law, blood relationships and consanguinity, the future of the Irish Constitution and Education within the State, are all further issues requiring our attention.
Furthermore, there are many unanswered questions about the wording of the Referendum and its true objective. I hope to be present with my friends in the Pauline Circle to debate further on these matters before it is too late.
And in conclusion
Marriage is a contract between a man and a woman. It is a contract based on love and respect. The possibility, the desirability, of children is nature’s miracle, enriching and multiplying the species. The desired contract is for life and, in most cases, the procreation of children makes that the norm. It is also uniquely the basic human institution of our society, multiplying it and extending it for ever. It is the same for all societies. The institution of fruitful marriages involves society and becomes society. This means that society has a stake in marriage, a belief in its worth. If marriage is seen – as it increasingly is – as a matter that concerns only the parties to the marriage, then society is weakened, as the bond between marriage as the basic unit of society and the wider society is broken.
The process of separating the rights and interests of the parties to a marriage from their duty to society has been going on for many years. While divorce is arguably a necessary feature of marriage law, that does not mean that more than a tiny handful of married people should avail of it. The attitude of society towards marriage has changed and is changing to a degree currently that seems astonishingly fickle and ill-informed. Part of this is currently upon us with the current referendum, a casual and apparently selfish response to the personal wishes of people who do not see its structure and motivation in the terms I set out here and in the weight of history and belief on which the Irish people, for better or worse, have developed.
Instead, current thinking is centred on the personal wishes of the parties to a new form of marriage expressed by Stephen Fry in the Tweet I quoted at the beginning of this piece: “Gosh! Elliott G Spencer and I go into a room as two people, sign a book and leave as one. Amazing!”
That amazement displaces what has been the abiding miracle of marriage as I have experienced it during a long and happily married life, a life during which the dominant hand of nature has been paramount. It has been an experience I know I share with countless others, most of them in the warm and living privacy of their own married lives. With all its vicissitudes and tragedies it is the abiding, unique and precious experience that we either save in this current referendum or depart from into unknown and uncharted territory from which we can never return. That is why this referendum is so important.
The article above was recently presented as a talk titled “The Unique and Precious Nature of Marriage” by journalist and writer Bruce Arnold to the Pauline Society, a multi-denominational debating society that meets monthly