'A Plea in Law for Equal Marriage'

By skepticlawyer

As many of you know, I won the 2012 Law Society of Scotland Essay Award for a piece entitled ‘A Plea in Law for Equal Marriage’. The question to which my paper was a response was this:

An MSP would like to bring forward a member’s bill in the Scottish Parliament. She would like it to be topical and to make a useful change to Scots Law. What would you suggest?

The competition is annual, and the question varies slightly from year to year, but often turns on some aspect of law reform. One memorable winner from the recent past wrote her piece on the need for changes to the Scots law of succession. Some of what she wrote was in response to a report by the Scottish Law Commission; I mention her now because I thought about writing on the same topic when I first saw the competition advertised – only to see that someone else had beaten me to it. Friends of mine will no doubt find it typical that my first instinct was to write about one of the more arcane bits of private law.

As promised on Facebook and to readers of this blog many moons ago, this post is to let you know that the piece has just been published, both in print and online. The illustrations for this post are taken from the printed magazine. I should add that the versions are different – the hardcopy one is a mere 1500 words, unreferenced (as is typical in many professional, rather than academic, journals), and in certain respects clearer. Inevitably, however, there is some loss of nuance. That said, my biography in the paper version is accurate, while online I am still studying away. I assure readers that I have actually graduated 🙂

My piece begins thus:

In 2002, A was happily married to her husband, although she was not well. About two years earlier – and although she was only 33 – her periods had stopped, her voice had deepened and her shoulders had broadened. She began to grow facial hair, which she shaved off, obsessively, although she felt very odd doing so. She had always been considered “mannish” as a child and was unusually good at sport, to the point of being invited to play cricket with her high school’s First XI and coach junior rugby. Her husband had always liked “sporty girls”, and they met through a rugby supporters’ association.

Although she hid the burgeoning changes from her husband, of course he noticed them. Eventually, and in severe distress, she told him that she thought she was turning into a man. Medical tests revealed a huge spike in her testosterone levels and a hitherto undiagnosed genetic disorder that meant she had both male and female characteristics. At the time of the tests, she did not feel properly male or female, but it was clear that she still loved her husband, and he loved her in return.

The couple waited, and over a further two years – and without, at this stage, any treatment – the masculine characteristics became more dominant.  ‘She’ felt more like ‘he’ and the couple agreed that A would undergo the necessary medical treatment and legal changes to be considered male. The medical process went relatively smoothly, albeit with pain and some adjustment complexities. The law, however, was less amenable. A was told that in order to finalise his transition from female to male, he and his husband would need to get divorced. Only then would his “interim gender recognition certificate” be made a “full” one.(1)

“But we’ve been married for nine years,” he pointed out. “Can’t we just stay married? Our 10th wedding anniversary is coming up.”

“No. You have to divorce, and then, if you want, you can form a civil partnership.”(2)

“But I thought marriage and civil partnership were supposed to be the same!”

Now read the rest.

A little background

As I explained to Catallaxy’s Sinclair Davidson on Facebook the other day, I became involved in this debate for two reasons:

1. Religious (and particularly Catholic) groups were arguing against same-sex marriage using empirical arguments, including contentions about the difficulty of enacting validly drafted law, the deployment of scientific research, and legal history.

2. At the same time, LGBT groups were making arguments in favour of same-sex marriage based on the idea of natural and inherent rights, particularly the idea that LGBT people ought to enjoy equal civil and human rights to non-LGBT people. Included in this was the contention that marriage is a right.

If you know anything about jurisprudence, you would be aware that this is completely ‘bassackwards’. Natural law in its modern form is in large part the creation of Christianity (particularly Catholicism; you will have all heard, I hope, of Aquinas and Augustine; the Protestant contribution is far more minor) and Islam, one Islamic thinker in particular (Al Ghazzali). Legal positivism, by contrast, is a creature of the Scottish Enlightenment (with some input from the pagan Roman jurists) and the English utilitarians, especially Bentham and H.L.A Hart.

I suspect that this is why the arguments both groups used (and continue to use, alas) were (and are) very, very bad. And I am not fond of bad arguments, especially when there are good ones available.

Now, I agreed with the LGBT ‘side’; that’s why I wrote the essay I did. But their arguments were crap. And the Catholic Church’s were similarly awful. Sometimes it really is a case of ‘play to your strengths’, lads (even when the batsman in question, like Kevin Pietersen, wants to belt everything on the leg side).

To that end, I wrote an empirical, positivist essay on the arguments for (and against, thank you kvd) same-sex marriage. When I reference ‘human rights’, it is only incidental to my major focus: providing empirical proof on and establishing the formal validity of a proposed change to the law. At all times, I kept my eyes focussed on the human institution of the Scottish Parliament (‘it looks like someone swallowed a jigsaw,’ says one friend of mine ‘and then threw up on the Old Town’).

The virtue of making an empirical argument focussed on validity and ‘doability’ is that it allowed Peter Nicholson, The Journal’s splendid editor, to extract a natural law argument against equal marriage from John Deighan, the Parliamentary Officer for the Roman Catholic Church in Scotland.

This is the right way around, jurisprudentially, and both arguments are better for it. The Catholic natural lawyer draws on his tradition, bringing forth its contribution to human rights law and the notion of entrenched rights. The Skeptic legal positivist draws on her tradition, bringing forth its contribution to liberal parliamentary institutions and scientific rigour.

I have only one small correction to make to a comment John Deighan raised in his piece. He asserts at one point that:

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.

As you can see from the question the Law Society set for the competition, there was no requirement that the legislation be ‘the most needed’ in Scotland, merely that it be useful and topical. If I were to make an argument for ‘the most needed’ legislation in Scotland, it would likely concern reform to the law of succession. However, Robert Gordon University‘s Amanda Spalding has already done a stellar job on that front. And she won last year.


  1. Posted August 16, 2012 at 7:47 am | Permalink

    Hmm, I struggle with the terminology “equal”.

  2. Posted August 16, 2012 at 7:59 am | Permalink

    SATP: I must admit my preference is for ‘same-sex marriage’, but I do know why local (as in Scots) LGBT activists went for ‘equal marriage’.

    No-one (these days) talks about ‘my mixed race marriage’ or says ‘we’re having a mixed race marriage’. What they’re hoping for is that by using the anodyne word ‘equal’ (and it has become anodyne, even if it were once a daring and confronting concept), apparent differences can be drained away, and we are just left with conceptions of ‘marriage’ broad enough to include different religions, races, sexes etc.

    No idea whether it will work; time will tell.

  3. Ken N
    Posted August 16, 2012 at 12:33 pm | Permalink

    I agree with your conclusions, SL, but I admire your analysis even more.

  4. Ken N
    Posted August 16, 2012 at 12:36 pm | Permalink

    H we are no longer FB friends as I cancelled and later rejoined, mostly to concentrate on those interested in music rather than politics. I would live to reconnect with you tho. If you don’t mind…

  5. Bolt1493
    Posted August 16, 2012 at 1:11 pm | Permalink

    What I have never really understood is wether the argument is really about LGBT having all the rights and duties of marriage or if the argument is around the use of the word “marriage”. Would a statute stating that “Civil Union” carries all the rights and duties of marriage and when reading legislation within Scotland the words were “Synonymous”, or whatever the wording needed in Scottish law. Would that resolve the proble? or is the problem around the use of the word “Marriage”. If that was the case you could just replace the legal word “Marriage” with the words “Civil Union”

  6. kvd
    Posted August 16, 2012 at 5:17 pm | Permalink

    Permitting equal marriage would merely be connecting the last link in the chain

    Would have preferred a better metaphor. But salutes! for a thoughtful piece.

  7. kvd
    Posted August 16, 2012 at 5:33 pm | Permalink

    I wrote an empirical, positivist essay on the arguments for same-sex marriage.

    I guess the other thing I’d politely say is that your essay consists of rebuttal of all the usual suspects, rather that a commentary upon, or exploration of, arguments for same sex marriage. Call me simple, or maybe I read points 1,2,3 backasswards.

  8. kvd
    Posted August 16, 2012 at 5:44 pm | Permalink

    Meanwhile, your ‘intellectual opponent’ – John Deighan – seems comfortable enough in his views to state up front that anybody who faced death for his/her beliefs must automatically be regarded as the purveyor of some sort of ultimate truth? I’d need to see what’s in his left hand before I bought into that.

  9. Posted August 16, 2012 at 6:24 pm | Permalink

    Ken N: that’s absolutely fine – just send me a message so I know it’s you. I do go to a few music things during the International Festival, and sometimes Scottish Opera, so I am not entirely without music.

    Bolt1493: much of the fight does concern the word ‘marriage’, yes, and there are different ways of solving the problem. One possibility (outlined by Sunstein & Thaler in Nudge) is to privatize marriage as a concept – the state is only empowered to create ‘civil unions’ (the US term) or ‘civil partnerships’ (UK term), all governed by the law of contract, with clearly drafted defaults for those people incapable of ‘turning their minds to the bargain’. If the couple in question then wanted a marriage, they could approach an appropriate body and accept that they may get a knock-back (if divorced or gay or whatever).

    This solution represents a blend of modern French law and ancient Roman law: in France, all marriages are civil. One has a church/religious ceremony afterwards only if one wants; the narrowly defined defaults are typical of Roman law, and have been substantially reenacted since Napoleon.

    Another possibility is the complete privatisation of both civil unions and marriage, leaving them entirely to the law of contract. This is commonly advocated by libertarians in the US. Unfortunately, they do not come out of a legal tradition where this is easy to do (contract marriage is Roman and Jewish, not common law). The idea that the commercially-focussed, dry, and positivist law of contract should govern intimate relationships is anathema in most common law systems, as any lawyer who can remember the (rebuttable) presumption that persons intimately or domestically connected do not intend to form legal relations from their contract classes in first year.

    Also, too, the state has got its claws well and truly into marriage (picking up where the churches left off), which in the US in particular has all sorts of complex implications for health insurance. It is a possibility, however, in civilian countries with universal healthcare.

    kvd: that phrase worried me, too, and I kept recasting it, but could not come up with a better one. Normally I would have sent the draft to Lorenzo, LE and DEM for proofing and checking, and no doubt one of them would have come up with something more apposite (I suspect it’s a classic example of a ‘stale expression’ per George Orwell in ‘Politics and the English Language’), but I thought that would probably amount to cheating, so I didn’t. They only got to read it once the entry had been submitted.

    And yes, I was careless with the ‘argument for’ line, and the ghost of Karl Popper in the form of kvd has caught me out 🙂 What I have done is fairly typical falsification in a Popperian sense, because it is very hard to prove that something is actually true (I don’t agree with Popper that it’s impossible, but I do think that it’s very hard, for exactly the reasons he gives).

    And your ‘bravery cancels out bastardy’ point is a good one, too. I dislike Bill Maher and find him very unfunny, but when he pointed out that the 9/11 terrorists were very brave men pursuing an utterly awful cause, he was absolutely right, and the argument can be extended. It is a commonplace that the Wehrmacht, Waffen-SS and Red Army fought very bravely in utterly ignoble causes during WWII. That’s why the Eastern Front was such a Passchendaele of mud and blood. That bravery does not elevate their causes one whit.

    Also, More is an ambiguous historical figure: most of us grew up with A Man for All Seasons and tend to recall its sanctified portrait of him. Hilary Mantel’s Wolf Hall – which is far more historically accurate – provides an important corrective to the play. He was a very brave man, but even by the standards of his own time, he was also a pretty toxic human being who believed in some pretty toxic things.

  10. TerjeP
    Posted August 16, 2012 at 6:44 pm | Permalink

    In Australia and the US the word marriage is appropriated within the respective constitutions. It’s a bit hard to walk away from the word and use some more politically correct alternative.

  11. Posted August 16, 2012 at 7:12 pm | Permalink

    Good point, Terje: one that also illustrates how entrenched legal instruments (whether rights-based or not) can have unintended consequences when societies change.

  12. Posted August 17, 2012 at 1:38 pm | Permalink

    Not quite sure how much John Deighan’s piece is an argument. A series of assertions invoking the right to ignore contrary evidence seems to be more like it.

    Including that precious little game where the simultaneous claim is made that:
    (1) there is no malice in the denial of equal protection of the law;
    (2) but I will claim as supportive fact the consequences of past brutalities.

  13. Posted August 18, 2012 at 2:14 pm | Permalink

    As Helen has mentioned, the right to marry being restricted to male & female couples leads to human rights issues for those whose sex is disputed, even if those concerned are quite clear as to what sex they are.

    To quote from Littlrton vs Prange:

    “Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Texas, is a male and has a void marriage; as she travels to Houston, Texas, and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”

    This leads to all sorts of strictly legal problems, where the validity of existing marriages can be, and has been, challenged.

    Without a legal definition of “male” and “female”, while marriage validity requires mixed-sex couples, no-one can be entirely certain their marriage is safe; at least, not without extensive medical tests beforehand to make sure there is no biological anomaly..

    Courts have ruled that the words “male” and “female” have their “ordinary meanings” – but then gone on to reach diametrically opposite conclusions as to what the “ordinary meanings” are, given identical circumstances.

    Thomas Beatie – who was born a woman but had a sex change – has filed for divorce from wife Nancy Beatie in Arizona. The couple was married in Hawaii but now reside in Arizona.

    “I’m going through a divorce with Nancy and at the 11th hour, the judge is now questioning whether or not this case is within jurisdiction, whether or not he wants to even grant us a divorce,” Beatie told Dr. Drew on HLN Wednesday.

    Beatie was legally recognized as a man in 2002 after going through a mastectomy, hormone treatment and a sex change operation.

    Beatie said on HLN that sterilization was not required for him to be legally recognized as a man. His driver’s license, social security, passport and birth certificate all recognize him as male, he stated.

    “He is an Arizona resident. He deserves to be allowed to get his divorce in Arizona,” Beatie’s attorney, Michael Cantor, said on HLN.

    According to Cantor, the judge wants more information to determine if Beatie’s marriage is valid. Some believe the judge at Maricopa Superior Court is delaying the divorce proceedings because he doesn’t really view Beatie as a man. And Arizona does not recognize same-sex marriage.

    When asked why not get a divorce in Hawaii where they were married, the attorney said the process would take at least five months and Beatie would then be away from his three children for that long. And Nancy Beatie wouldn’t allow him to move to Hawaii with the kids temporarily either, Cantor added.

    Thomas Beatie has sole legal custody of the children but Nancy is allowed supervised parenting time.

    Christian Post

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  1. […] explains at Skepticlawyer why she wrote the piece. It’s because the arguments in play were crap. I suspect that this is […]

  2. […] The context is Scottish law, but BHL readers might find it of interest.  Helen also blogs here and is a BHL reader too!Preview Print PDF   /* Gary Chartier: […]

  3. By Skepticlawyer » The Laws Are Made for People… on March 29, 2013 at 8:01 pm

    […] the wake of my win last year in the Law Society of Scotland’s annual essay prize, the Reason Foundation commissioned an academic study of the legal arguments surrounding same-sex […]

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