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Sauce for the goose......

7 July 2003

Government proposals for gay marriage are good policy, and good politics, too. But encouraging mutual support and dependence could be much more widely extended, to the advantage of society as a whole.

When it comes to same-sex marriages the government is to be commended for taking account of behavioural trends. The legal and financial benefits that are afforded married couples are, presumably, so afforded because they serve a public good. Financial protection is given to dependent partners, which ensures (among other things) that they don't lose their house to death duties when their partner dies. The public good that flows is that they are able to perform in security their "dependent" (often "mothering") rôle without having independent means. In the same spirit, the law ensures next-of-kin rights to married couples, and this underpins the mutual support that is implied in the relationship.

It all makes excellent good sense, and passing these benefits to gay and lesbian couples extends the scope of an enlightened public policy. How strange, therefore that fully ten percent (and rising) of Britain's households are to be excluded from this outbreak of political wisdom. Straight co-habiting couples are left in a political limbo in which certain of the costs but none of the benefits of the conjoined state are allowed them.

There is nothing inconsistent about this. When it was first announced that the government was to afford certain benefits to same-sex couples it was automatically assumed that the legal status to be conferred would be decidedly sub-marriage. Once that status was established human rights legislation, if nothing else, would ensure its availability to all.

But that's not what's happened. The government's proposals are for same-sex marriage, pure and simple. It is difficult to insert a cigarette paper between the proposals and the state of legal marriage per se. It won't be called marriage, of course. Not at first, anyway, until usage and custom require it. The form of legal ceremony will also be simpler - less laden with moral overtones. But, as with marriage ceremonies, people will soon begin to make up their own.

The proposals are themselves a rare combination of bold and effective policy-making and nifty political footwork, too. By adopting a strictly rational approach the government has effectively silenced the pro-family lobby by saying that if same-sex couples want to be recognised they've got to be properly married and not just indulged with some wishy-washy here-today-and-gone-tomorrow formula for a tax-break. This is one up for family values, ministers will say, and by bringing gays and lesbians into the fold it leaves those disreputable co-habiting types even lonelier in the cold.

Fair enough. Co-habitees can't complain of discrimination, but they can point to themselves as a separate issue, needing a solution of their own. If legal and financial benefits are afforded married couples because it serves a public good, that good would be extended if applied to those married in all but name. Otherwise there'll be homeless partners on the streets with their children, or people dying in hospital with no one by their side.

The numbers shouldn't matter, but in fact they are rising all the time. Ten percent of families now operate in this legal limbo. As the number increases (and the number of married families correspondingly diminishes) the public good associated with the benefits afforded to the married state is diminished. Why would a government want to do that?

The reasons shouldn't matter either. There must be reasons why people do everything that married people do, like fall in love and decide to live together, then buy a house together and have children together, but still not tie the knot in the prescribed way. Probably there are dozens of reasons, ranging from inertia to hesitancy to fear and loathing of weddings to rebelliousness to all the religious and historical baggage that the term marriage and the language of the marriage service carries with it. From the policy point of view, however, the only reason to inquire why somebody won't do something is if there is some pressing policy advantage to say that they should. And there isn't. How can it possibly matter to a government whether people tie the knot formally in Westminster Abbey or informally in a café over a cup of tea?

To understand this, it is necessary to go back to the beginning of the argument, to how and why the law favours the married state. It does so, in essence, to provide security to a group of two partners and their children who are collectively dependent upon the income coming into that group, and it does this by seeking to ensure that the loss of one member of the group (through death or divorce) does not overly disadvantage those who remain.

In other words, recognition of the married state underwrites a miniature social contract that allows a group to be treated economically as a single entity, and to enjoy collectively the rights, duties and privileges that would otherwise pertain individually to the members of the group. The law does this because, if it did not, it would be economically dangerous to individuals to form these small collective units known as families in which (for example) children can be safely born and raised. For reasons of social policy the law is actively encouraging economic interdependence and mutual support.

Looked at like this, marriage is only one example of an interdependent social unit. Wherever "earners" and "dependants" (which includes unpaid carers as well as those who need care) live together there is a collective unit of this sort, supporting not only children, mothers and fathers but the sick, the disabled and the elderly and all the people who look after them by virtue of their mutual relationship. What happens when an "earner", who owns the house that he shares with an elderly relative, dies while the dependent relative is still alive. Ought death duties be levied, which might oblige the relative to leave their home?

The principle can be extended further, to communities of several families who live and raise children together and who treat their income and property in a collective way. In these cases the earners in the group may be collectively supporting numerous dependants in an economic union that could leave the dependants vulnerable if one of the owners were to die or move away. It should be possible to recognise these unions, creating obligations and granting rights to encourage the union to continue.

In general, where individuals throw their economic lot into a group, society benefits both in terms of cohesiveness and the support that the group can give one another (which the state might otherwise have to provide). A social partnership of this sort entails obligations and it makes sense for the government to provide a legal framework for these to be undertaken. The precise nature of the group and the ceremonial formalities that bind it are incidental to this issue of legal recognition of the rights and obligations that it underpins. And once a partnership is recognised, the normal benefits of the married state should flow to it naturally, as demanded by the interest of the public good.