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“God gave us that wonderful sacrament (marriage) as the building block for society, ordained for the procreation of children and nurturing them; as a remedy against sin, and for the mutual society, help and comfort that one ought to have in the other”
(Baroness Wilcox, House of Lords, 25th January 2002)
The Baroness’ statement relies on an underlying religious and sacred interpretation of the basis of marriage. This work contends that alternatively marriage is a purely legal-construct, designed originally and maintained as a method of social control and that this legal-construct becomes veiled with impressions of ‘sacredness’ in an attempt to disguise its inherent irrationality. The intention here is to examine how law has constructed marriage and the way that ‘sacredness’ is used to defend the sanctity of the institution, particularly at times of perceived threat. Consideration is given to the religious-mystical and then to the legal basis of marriage, noting in particular the way that the legal process creates minority groups of ‘un-sacred’ and excluded ‘others’.
Attention is then turned to some of the ‘liberal’ attempts at reform, examining whether such reforms possibly assist in the creation of ‘other’ or offer little more than strained second-class institutions. Institutions that secure the piecemeal benefits of marriage, whilst firmly denying the same people the right to marry. Finally the more potent force for change blowing directly from Strasburg and the affects of the Human Right Acts are considered. Initially, however, attention is given to the historical origins of marriage and the developed need for legal recognition of relationships.
The sanctity afforded to marriage today suggests that this social arrangement has existed since time immemorial. It is, therefore important to dispel this notion and to consider that before Lord Hardwicke’s Bill in 1753 most regulation surrounding co-habitation was governed by custom. The paucity of formal registration was compensated for by visible declarations of intention. Intentions, demonstrated by inter alia, the practice of ‘walking out’ and the exchanging of ‘love tokens’, allowing the local community to witness the intent. Further to this only the exchanges of promises and physical consummation were required to ensure that a marriage was socially recognised and acceptable.
The development of the formal legal requirements of registration was not merely an attempt to ensure a higher moral tenor in the population. It was progression driven by the need for patriarchal control of family wealth and dynasty.  The ever-increasing need for written records of unions was driven by the requirements of property transfer and to help establish the family as the nexus of capitalist wealth accumulation.
This increasing legalisation represented a key step towards the state legal control of private lives, which had previously been a matter of social contract between a husband and wife; a Hobbesian form of patriarchy predicated on the need for a Leviathan to provide protection and social steadfastness. Paradoxically it has also been suggested that the practice of marriage was also an act of subversion, an attempt to remove the consenting parties from the direct gaze of the church and state. However, in spite of the developing legal controls over entry into, responsibilities during and the eventual legal involvement in the dissolution of marriages, there remains an enduring historical illusion that marriage is sanctified.
Is Marriage a Sacred Institution?
“As a sacrament, an indissoluble union of mystical and metaphysical nature, marriage is eternal.”
Baroness Wilcox’s statement provides a classic illustration of the shrouding of a legal process with a religious mysticism that covers the injudicious legal exclusion of ‘other’ consenting adults from a commitment to marriage. A commitment described as being so beneficial that its continuation is a “..straightforward issue of public health..” 
The Baroness’ augmentation of marriage as a divine institution further infers a mystical and spiritual quality on marriage which “.. does not have to be rational, its origins are sacred, it can call on mythology, an unconscious reservoir of memories, emblems, a fictive narrative.” This image is proliferated at times when changes to the dominant social order (such as the introduction of the Civil Partnership Bill) are mooted. This holy and mythical state which has been described, as being “understood in Christendom” is sometimes strained when some of the harder and more crushing aspects of ‘the state of marriage’ such as domestic violence are considered. Conversely as noted by Baroness Ludford (during the same debate) it was perhaps because “[m]arriage also has a strong religious overtone” that many “opposite sex couples who could marry but chose not to”.
Is Marriage a Legal Institution?
Law determines the classes of persons that are able to marry, it determines the benefits and detriment that flows from that union, it has developed its own interpretation of what that marriage should entail. Furthermore, it has determined the legal rules for its dissolution, so that “[I]n that sense law constitutes the marriage.”
Marriage presents itself as a legal contract, but this arrangement is quite different from any freely negotiated arrangement, “ [a]s a contract, so presented in legal discourse throughout the history of common law, it cannot stand. Its terms are not negotiated by the parties, but prescribed by law.” Prescription is by a legal system promoting its own ideas of what marriage and (by definition) family should involve. The ‘optimum’ legal family is not necessarily a moral construction, but rather a unit providing the maximum social control, an easily managed microcosm of society; that reinforces its own values through the exclusion of ‘others’, a method of “regulating sexual activity, legitimising children and protecting property rights.”
The Creation of ‘Others’
The law by a process of exclusion acknowledges only relationships between heterosexual couples, not only by voiding marriages between same sex couples, but also by the insistence on consummation that even in modern times requires a phallocentric penetration of the female body by the male. An emphasis upon heterosexual sexuality that was originally perhaps “..motivated by one basic concern; to ensure population, to reproduce labor capacity, to perpetuate the form of social relations: in short, to constitute a sexuality that is economically useful and politically conservative..”
Current ’Liberal’ Reforms
Baroness Wilcox’s statement was drawn from her general acceptance of a need for legal recognition of civilian partnerships, her emphasis was, that however laudable such partnerships were, they could not (and should not) ever be confused with the glorious state of ‘marriage’. Evidencing that even ‘liberal’ thinking continues to draw its life-blood from the marginalization and creation of ‘other’.
The Civil Partnership Bill was introduced to the House of Lords by Lord Lester of Herne Hill, and was widely welcomed by their Lordships, who recognised the discriminatory position (under the current law) vis-à-vis same sex couples. However, almost to a man their Lordships were unable to assimilate the idea that those currently unable to legally marry could be accommodated by amending the marriage rules and allowing same-sex couples to obtain married status. The humanitarian intention of the Bill, which would be hard to deny, reaffirms the irrationality of a legal society that denies the optimum method of co-existing to those seeking such rights. Instead the opportunity is taken to enhance the mysticism of marriage, citing ‘sacredness’ as a vindication for being unable to develop its rules and disavowing what would be an entirely logical provision of rights to all, offering instead the prospect of a “second-class form of marriage”
Marriage has not been immune from alterations to its legal and societal form. Judicial divorce was itself only introduced in 1857 and further changes include the cessation of a husband’s right over his wife’s property and body, the demise of the right to sue for criminal conversation and the growth of varied civil marriages. It would appear, therefore, to be duplicitous to suggest that the legal or moral tenor of marriage is not open to further development. Yet the favoured approach appears to be the creation of new statuses rather than a liberation of what is acknowledged as the most favoured source of well-being and social control, the institution of marriage.
Creating new rights rather than amending the old
It is the reluctance of lawmakers to radically re-think the way that family life is structured that leads to the convoluted thinking that prescribes, a multi layered structure of legal statuses. Consistently we see different life-styles kept apart from the mainstream acceptable process of heterosexual family formation, an artificial division whereby ‘otherness’ is created from the binary notions of legal discourse, perpetuating the state of the marginalized. A phenomenon noted by Earl Russell during the Committee Stage of the Adoption and Childrens Bill 2002 where he referred to the danger of commentators “..suffering from …..John Stuart Mill’s maxim of the inability of the unanalytic mind to recognise its own handiwork.”  An impotence of thought that he felt had created a situation whereby “..[A] great many people—most of them supporters of this amendment—have strongly resisted the idea that gay life should be regarded as in any way equal to heterosexual life. If one puts that view over for long enough it is inevitable that some people will believe it. “
The sacred justifications for marriage include the notion that marriage represents “a pattern that God has given in creation..” but do not explain why this institution cannot welcome all those revering its status. Instead there is a continuation of the shrouding of this irrationality by references to God. The Civil Partnership Bill attempted to achieve great dexterity by drafting legislation jointly for those wanting to marry, but facing a legal ban, whilst providing yet a further civil solution for those legally able to, but not believing in marriage. Thus the bill seemed set to reinforce the exclusion of ‘others’ and to hurl the notion of the ‘sacredness’ of marriage forward into perpetuity.
The Baroness’ statement sets out a list of purposes or ‘building blocks’ attributed to the sacred union of marriage. There is no suggestion that these aspirations are to be read disjunctively making the list seem a particularly high aim. However, a permanent same-sex union can equally aspire to these purposes, with the obvious exception of the procreation of children. But even this potential stumbling block, is being met by advancements in artificial insemination and invitro fertilization treatments. Moreover, the recent successful passage of the Adoption and Childrens Bill 2002 allowing adoption by same sex couples demonstrates an inconsistency in the thinking surrounding parenting by such marginalized groups, and evinces the ability of such families to fulfil the Baroness’ criteria.
European lead developments
The Court of Appeal in Mendoza v Ghiadan found that the previously ‘progressive’ ruling in Fitzpatrick v Sterling Housing Association Ltd infringed article 14 (discrimination upon the grounds of sexual orientation) of the European Convention on Human Rights, having regard to the claimant’s rights under article 8. The Court in Mendoza clearly stated, “sexual orientation was clearly recognised as impermissible discrimination, on the same level as the examples specifically set out in article 14.” Lord Justice Buxton, in Mendoza was adamant that “[s]o far as protection of the family was concerned, it was quite unclear how heterosexual family life (which included unmarried partnerships) was promoted by handicapping persons who were constitutionally unable, ……. to enter into family relationships so defined.”
Recent developments in the rights of single-sex parents wishing to adopt have been mentioned already, developments that remove great sections of the barriers that prevent single-sex couples marrying. Furthermore, following 30 years of legal battles, the Government is due to relent and make provision for transsexuals to be allowed to marry in their adopted sex. All developments, lessening marriage’s claim to the ‘sacredness’ expounded by the Baroness’ statement and as suggested by her ‘building blocks’.
Whilst ‘reformers’ concentrate on ensuring that marriage is not undermined, those interpreting and developing the law are facing increasing pressure to acknowledge the affects of inter alia article 14 on domestic legislation, and to provide the same rights for same-sex couples as heterosexual couples.
What remains unclear is why the ‘sacredness’ associated with marriage is being allowed to falter the development of a legal construct. As a result of which marriage may remain for the ‘sacred’ few at the head of endless layers of acceptable social categorisation, a categorisation determined by such factors as the sex of the partners, and the level and length of their commitment. Developing a system of regulation totally disproportionate, to the alternative of simply allowing marriage between same-sex couples.
It should be remembered that heterosexual marriage can be entered into with very little thought or commitment, and it can be misused as with some immigration and arranged marriage situations. It would seem illogical and inappropriate to continue to allow such unions to be seen as attracting a greater degree of societal acceptance or ‘sacredness’, whilst same-sex couples are required to demonstrate a prescribed period of ‘commitment’ before being granted even a ‘second-class’ union.
 An Act for the Better Prevention of Clandestine Marriages
 Female wealth and earnings became a husband’s property on marriage; See generally Holcombe L., Wives and Property (1983) Martin Robertson, Oxford, Chpt.. 2.
 Barnett H., Introduction to Feminist Jurisprudence (1998) Cavendish Publishing Ltd, London pp.58-59
 See generally, Mount F., The Subversive Family: An Alternative History of Love and Marriage (1982) Cape, London
 O’Donovan K., ‘Marriage: a sacred or profane love machine?’ Feminist legal Studies  vol. 1 no.1 75 p.79
 Homosexuals and Transsexuals
 The Lord Bishop of Winchester; Hansard vol. 630 Debate on the Civil Partnership Bill, 25th January 2002, Col. 1705
 O’Donovan K., Family Law matters (1993) Pluto Press, London p.57
 Hyde v Hyde and Woodmansee  LR 1 P & D 130 p.133
 Hansard vol. 630 Debate on the Civil Partnership Bill, 25th January 2002, Col. 1710
 Matrimonial Causes Act 1973 s.11 (a) – (d)
 For example, access of surviving spouse to pension rights and the exception from inheritance tax for property inherited by surviving spouse.
 Supra n.5 p.77
 ibid p.75
 Baroness Kennedy of the Shaws; Hansard vol. 630 Debate on the Civil Partnership Bill, 25th January 2002, Col. 1725
 Matrimonial Causes Act 1973 s.11 (c)
 Matrimonial Causes Act 1973 s.12 (a)
 D-e v A-g  63 ER 1039
 Foucault M., The Will to Knowledge; The History of Sexuality (1) (1998) Penguin, London pp.36-7
 Lord Lester announced on 11th February 2002, that he would not, at this stage, be proceeding with the Bill. Instead he is to call for a select committee to consider the issues. Angela Mason, Executive Director of Stonewall, who had collaborated in the bringing of the Bill, supported this move. See Civil partnerships Bill to be re-introduced in the autumn www.stonewall.org.uk/home.asp
 With for example, no rights as ‘next of kin’ and a liability to pay inheritance tax upon the death of a partner.
 Lord Goodhard; Hansard vol. 630 Debate on the Civil Partnership Bill, 25th January 2002, Col. 1734
 House of Lords
 Hansard vol. 11 Jul 2002: Column CWH235
 It should also be noted that there is no legal bar on marriage between opposite sex couples where there is no intention or indeed a medical impediment to the procreation of children.
 Through the House of Lords on the 5th November 2002
  NLJ vol. 152 No. 7056 1718
  4 ALL ER 705
 Noting that following Petrovic v Austria (1998) 4 BHRC 232, even a nebulous link with another provision would suffice for article 14 to become relevant.
 Supra n.28 p.1719
 Supra n.28
 Dyer C., ‘Sex Change Victory after 30 Years’ Guardian 10 12 02
Barnett H., Introduction to Feminist Jurisprudence (1998) Cavendish Publishing Ltd, London
Diduck A., and Kaganas F., Family Law, Gender and the State (2000) Hart, Oxford
Donovan J., M., ‘An Ethical Argument to Restrict Domestic Partnerships to Same-Sex Couples’ Law and Sexuality vol. 8 649
Dyer C., ‘Sex Change Victory after 30 Years’ Guardian 10 12 02
Foucault M., The Will to Knowledge; The History of Sexuality (1) (1998) Penguin, London
Fretwell K., ‘Enhanced rights for cohabitants?’ NLJ (2002) vol. 152 No. 7019 233
Holcombe L., Wives and Property (1983) Martin Robertson, Oxford
Mount F., The Subversive Family: An Alternative History of Love and Marriage (1982) Cape, London
O’Donovan K., ‘Marriage: a sacred or profane love machine?’ Feminist legal Studies  vol. 1 no.1 75
O’Donovan K., Family Law matters (1993) Pluto Press, London
Stone L., Road to Divorce (1990) Oxford University Press, Oxford