English law and lesbianism

The trouble with thinking of home is that it’s not always very pleasant. At least if one is an English exile thinking of his homeland. There is an odor of decay surrounding the British body politic and a sense that the memory of a living European culture is in an advanced stage of decomposition. It is, therefore, comforting to look beyond the decomposing present to the healthy vitality of England’s living past. That’s why I spend so much of my time in the presence of Shakespeare, Hopkins, Newman, and Chesterton. How alive these men are compared with the living death of sin and cynicism in the ascendant today. It is, therefore, a small but nourishing crumb of comfort to learn that a senior judge in today’s England has upheld the morality that Shakespeare, Chesterton et al would have taken for granted.

I am referring to Sir Mark Potter , the president of the Family Division, the senior judge of family law in England, who passed a judgment in the High Court earlier this month that amounted to a ringing endorsement of traditional marriage. He was judging the case of a lesbian couple who had been "married" under Canadian law three years ago and who were seeking to have their union validated under English law. Giving judgment, Sir Mark said that common law had always recognized marriage as the voluntary union of a man and a woman. Anyone challenging this faced the "insurmountable hurdle" of legislation passed in 1973, which says that a marriage is void if "the parties are not respectively male and female."

I will quote more of his judgment because it is like music to my ears. Marriage was, by "long-standing definition and acceptance," a formal relationship between a man and a woman primarily designed for producing and rearing children, and, as such, "to accord a same-sex relationship the title and status of marriage would be to fly in the face of the convention as well as to fail to recognize physical reality.

"Parliament has not called partnerships between persons of the same sex ‘marriage,’ not because they are considered inferior to the institution of marriage, but because, as a matter of objective fact and common understanding . . . they are indeed different."

Responding to the judgment, one of the lesbians illustrated the chasm of understanding that separates her and her ilk from the logic underpinning Sir Mark’s judgment. "We have been stripped of our marriage by the court. Denying our marriage does nothing to protect heterosexual marriage. It simply upholds discrimination and inequality."

Responding to her response, let’s take her comments, sentence by sentence.

She and her partner have not been stripped of their marriage because they were not married in the first place. You cannot remove something that doesn’t exist.

Furthermore, it is simply not true to say that the refusal to accept homosexual partnerships as "marriage" does nothing to protect heterosexual, i.e., traditional, marriage. If the demographic implosion that threatens the very existence of Europe is to be reversed we need to protect and encourage families ; and in order to encourage families we need to protect traditional marriage. Once any cohabiting couple can claim to be married it becomes impossible, in law, to legislate in a proactive way to encourage and support procreation within marriage. We will be putting an "insurmountable hurdle," to adopt Sir Mark’s phraseology, in the way of any prospect of rejuvenating and regenerating European culture. And ironically, the insurmountable obstacle to any prospect of reinvigorating European society will be the law itself, should the law be changed as this lesbian couple demands. Pace our lesbian friend, denying her "marriage" does a great deal to protect heterosexual marriage.

Finally, the claim that Sir Mark’s judgment "simply upholds discrimination and inequality" is purely and simply true! The trouble, of course, is that the modern world, of which our lesbian couple is merely an example, has forgotten how to speak English. They do not know the meaning of the words they use. Let me take our lesbian couple gently by the hand and let me lead them to the Oxford English Dictionary . Let us find the definition of "discriminate." It is to "observe a difference between, to distinguish from another; to make a distinction; to observe distinctions carefully." One who is "discriminating" is, according to the OED , one who is "discerning" or "acute." It is the very function of a judge to discriminate. If a judge loses his ability to discriminate, he ipso facto loses his ability to judge! And what is true of a judge of the law is true of the law itself. All laws, by definition, discriminate. If they did not, they would not, and could not, delineate between the lawful and the unlawful. (I won’t say between good and evil, lest my lesbian interlocutors accuse me of bigotry.)

And as for "inequality," isn’t it the function of the virtue of "discrimination" to judge such questions? Insurance companies judge that a chain smoker is not equally likely to contract lung cancer as a nonsmoker; smokers and nonsmokers are not "equal" in such circumstances, and the insurance company discriminates accordingly. Anyone with a modicum of common sense will judge that homosexual couples are not equally likely to procreate and raise children as are heterosexual couples; homosexuals and heterosexuals are not "equal" in this sense, and sensible people (such as Sir Mark) discriminate accordingly.

It is, therefore, a trifle ironic that I find myself, with regard to the last statement of our lesbian friend on the subject of discrimination and inequality, completely in agreement with her. It is a little mortifying to know that we are only in agreement because one of us speaks English and the other doesn’t. Still, in these sad days, as I have noted already, I am happy to accept any morsel of comfort.

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