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Opinion column: John Deighan

13 August 12

Our human rights instruments recognise marriage as a relationship between a man and a woman. They express a truth that lies beyond the reach of legislative power to alter

by John Deighan

On 6 July 1535 Thomas More stepped on to the gallows and serenely placed his head on the block at which he was duly decapitated. It was the use of law to rewrite reality that Thomas More could not condone. King Henry VIII refused to be content with More’s silence on the King’s adulterous marriage to Anne Boleyn and instead determined to force a public approval from his former Chancellor.

In their willingness to give their lives for a principle, men like Thomas More witness to the importance of that principle. His testimony to the inviolability of conscience points to the importance of not abandoning it. The full consequences of More’s lesson have been learned throughout history, and our modern human rights framework is built on the premise that there are principles that lie beyond the grasp of kings, presidents and political assemblies, recognising that conscience places an ultimate responsibility on each person to do what they reason to be right.

The Universal Declaration of Human Rights permitted the promotion of common rights around the world. In Europe it prompted the creation of legal processes to hold governments to account for securing those rights for their citizens. Those rights are now perilously close to being hollowed out and shown to be worthless in the face of demands for radical autonomy. Alexander Solzhenitsyn famously warned the West of the threat to its survival when he identified that in our society, “destructive and irresponsible freedom has been granted boundless space”.

If human rights exist at all, they must be based on something firmer than the good dispositions of those who wish to uphold them. The preferences and wishes of individual people, and even societies, fluctuate throughout time and place. A dependence on these for legal rights places those rights at the mercy of trends and fashions which are easily manipulated.

For all the benefits of our free society, it is as subject to the rise and fall of particular fashions as any other. In fact, the use of the media to form particular values and modes of behaviour has proven to be considerable. Celebrity culture places people with particular talents for singing, acting or just for being physically attractive, in positions as social leaders and role models with influence that often dwarfs that of many elected politicians.

It is in such a context that we come to the issue of same-sex marriage. Whether we agree or disagree with their aims, efforts to change the public perception of homosexual relationships have been considerable. Marshall Kirk and Hunter Madsen are perhaps the most coherent in asserting the aims of their efforts in this regard. (There is no room to explore the understanding of homosexuality in this short article, but sadly there has been much distortion of the view held by those who propose a particular understanding of human sexuality which ties it inextricably with its biological significance for procreation. Proposing such a value in no way suggests malice for those who do not accept that understanding. Yet some same-sex marriage campaigners have made this a perpetual part of their rhetoric.)

That such significant legal changes have occurred in such a short period of time shows the effectiveness of the culture in leading politics and the law. It is of little surprise that it creates the context where a call for same-sex marriage should win an essay prize for identifying the most-needed new legislation in our country.

Such a step, however, invites the state to be the basis for determining the value and worth of private relationships. Marriage has always been of public interest in all societies, however primitive or advanced, because of the plain reality that sexual relationships produce children.

It is the simple reason why it is that type of relationship that had a privileged status, until the advent of radical freedom had individuals demand that they should get the same recognition despite not being in the same type of relationship. Much endeavour has been put in to rationalising why a change must be made; but these attempts are, to varying degrees, attempts to rationalise away common sense and universal human experience.

It is a line of thought which demands a new conformity on all people and which has been accurately described as a dictatorship or relativism. Like supporters of football teams, some have embraced the new cause with unthinking loyalty and will not be deterred from their path.

It is ironic that our human rights instruments recognise marriage as a relationship between a man and woman, yet human rights is used as a basis for demanding the change. That would be a triumph of arbitrary power over the objective reasonableness of justice.

John Deighan, BSc (Hons), MSc, LLM is Parliamentary Officer for the Roman Catholic Church in Scotland

 

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Richard Wilson

Wednesday August 15, 2012, 10:38

I have rarely felt moved enough to comment on anything I have read in The Journal. However this article is utter bile. I am embarrassed that the magazine of my profession has given over so many column inches to it.


Zoe Brain

Thursday August 16, 2012, 01:56

There appears to be no place in this essay for the concept of "love".

It is, to put it shockingly bluntly, crudely even, about legalised fucking.

In times past, marriage was indeed about legitimacy of bloodlines, no more, no less.

In recent times - since the 17th century - the pair-bonding component has become more important, and is now pre-eminent. Many children are born out of wedlock; many married couples do not have children. While there is evidence that children do particularly well when both parents are pair-bonded, there is no evidence that bloodlines matter. Adoptees do as well as other children in such circumstances.

Moreover, in these days of dual-incomes being very financially advantageous, of shopping hours and business hours being so synchronised that single people have great difficulty getting time off work to get licences renewed, all the bureaucratic impedimenta that was once only the problem of the ruling class (who had servants to do that kind of thing), stable pair bonding is very much in the interests of the state, at least as much as preservation of inheritance rights was centuries ago.

If we are to argue on the basis of "natural law", a law above the fashionable and faddish regulation of states, then the natural phenomenon of love must be recognised. Not merely eros, but agape. It's more than just economics and bloodlines. That's been recognised in the past.

In the 12th century, Héloïse attacks marriage, understood as purely an economic transaction, arguing that a woman marrying for money or position deserves “wages, not gratitude” and would “prostitute herself to a richer man, if she could.” In place of this economic relation she praises love, understood on a Ciceronian model of friendship: the “name of wife may seem more sacred or more binding, but sweeter for me will always be the word friend (amica), or, if you will permit me, that of concubine or whore” (Abelard and Héloïse, Letters, ca. 1133–1138, 51–2).

As that great Scot, Robert Louis Stevenson defined it 150 years ago: "Marriage: A friendship recognised by the police".

Such a natural pair-bonding is obviously not confined to mixed-sex relationships.

Natural law argues for legal recognition of such pair-bonds.

As a postcript - this also deals with the problematic cases where someone's biological sex cannot be classed as either male or female. They too are Natural. To deny them marriage is a most egregious example of "a triumph of arbitrary power over the objective reasonableness of justice", but is all too common, and justified by "Natural Law".


G Lyn

Thursday August 16, 2012, 09:59

J Deighan states: “Marriage has always been of public interest in all societies, however primitive or advanced, because of the plain reality that sexual relationships produce children."

This is manifestly untrue. Whilst it is true to state that children are produced (usually) as a result of a sexual relationship, the converse is not true. There is no reason why a sexual relationship should produce children.

It is the failure to separate the act of sex from procreation which underlies this misunderstanding.

“It is the simple reason why it is that type of relationship that had a privileged status, until the advent of radical freedom had individuals demand that they should get the same recognition despite not being in the same type of relationship.”

Many heterosexual marriages do produce – for varying reasons – children and I would like to know why Mr Deighan thinks that they differ from a homosexual relationship.

“It is ironic that our human rights instruments recognise marriage as a relationship between a man and woman, yet human rights is used as a basis for demanding the change.

I agree that this is ironic but surely the fault here lies with the poor wording of the act.

“That would be a triumph of arbitrary power over the objective reasonableness of justice”.

No! It would be the exact opposite!


The Editor

Thursday August 16, 2012, 12:54

Readers may also be interested in the blog posted by Helen Dale, author of the prize essay also published in this issue, commenting on the intellectual background to the debate: http://skepticlawyer.com.au/2012/08/16/a-plea-in-law-for-equal-marriage/


Cringe

Tuesday August 21, 2012, 14:05

I can only echo a previous poster's comments. I am ashamed that I am a member of an organisation that allows such tripe to be published.

In order to have a reasoned debate about these matters, far from seeking the views of the religious community we should be seeking to remove them. Let the people have their own voice through their elected representatives. As Mr Deighan alludes to, it is these people who we have entrusted to govern.


Michael Creechan

Wednesday February 6, 2013, 17:52

It would appear that, for over half a century, I have been labouring under a misapprehension that the democratic process in Scotland begins with the presentation for approval by the Scottish people of a series of legislation proposals by the various political parties in the form of manifestos from which the individual voter can select as being nearest to his/her preferences, resulting in the election of a party or coalition with a democratic mandate to carry out the intentions advertised in their manifesto documents.

To the best of my knowledge (which is based solely on common logic, my having no academic political qualifications), election of a Government does not confer a right to introduce legislation by ministerial dictat in respect of matters extraneous to pre-election manifestos unless exceptional and unforeseen events can be shown to necessitate such dictat.

Failure by the Scottish National Party to indicate, expressly or implicitly, in their manifesto an intention to introduce to Parliament a Bill concerning same-sex marriage renders invalid a post-election attempt to introduce legislation on which the electorate has been denied the opportunity to vote.

The Government consultation carried out as promised in the manifesto resulted in a comprehensive rejection of the ministerial preference, mentioned for the first time in the introduction to the consultation, that same-sex marriage be legalised.

Should my understanding of the democratic process in Scotland be erroneous, I would welcome pointers as to where I have misunderstood.